Judicial Review and the Future of Federalism
Jonathan F. Mitchell. Modern judicial review poses a unique threat to federalism, because it enables the Supreme Court to preempt state law and impose nationwide policies by a simple majority vote and without the assent of any other institution. And the current Supreme Court has shown little interest in adopting formalistic interpretive methodologies that would constrain its powers to override state law in the name of constitutional interpretation. Modern judicial interpretation of the Constitution is rooted primarily in court-created doctrines and precedents rather than constitutional language, and many of these doctrines and precedents could never have obtained the formal supermajoritarian assent needed to entrench a constitutional rule. These judicial interpretive practices are in tension with the Constitution’s efforts to protect federalism and state prerogatives by making it difficult for federal institutions…