This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these three bodies of law provide the exclusive ways in which constitutional adjudication gives rise directly to binding constitutional law. This Article argues that our Justices should be judicial departmentalists rather than judicial supremacists.
Kevin C. Walsh, Judicial Departmentalism: An Introduction, 58 WM. & MARY L. REV. 1713 (2017).