Constitutional violations by the United States Supreme Court: Analytical foundations

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Legal scholarship has generally neglected the questions surrounding the analytical foundations of the concept of constitutional violations by courts of last resort and the implications of this concept for traditional debates over the judicial power between proponents of judicial restraint and activism. In this article, Professor Nowlin examines these questions and concludes that constitutions can limit courts of last resort and, thus, that the U.S. Constitution can limit the U.S. Supreme Court. Significantly, the purposes of constitutions include creating and limiting governmental institutions such as courts of last resort, and the U.S. Constitution both created and limits the U.S. Supreme Court. Constitutional limits on the federal judicial power likely extend beyond familiar constraints on federal jurisdiction to the use of interpretive methodologies and thus encompass questions of the proper judicial role as activist or restrained Professor Nowlin further concludes that the Court's finality of decision in no sense entails a substantive infallibility, and, therefore, the Court's supreme self-affirmation of the constitutionality of its own decisions does not finally resolve the question of whether the Court has violated the Constitution. Professor Nowlin also elucidates the distinction between extra-constitutional and intra-constitutional interpretive authority, explaining in what manner a constitution may authorize and limit the interpretive authority of institutions internal to a constitutional system. Professor Nowlin also outlines a conceptual framework for analyzing judicial constitutional violations, including violations via exceeding structural authority, contravening Rule-of-Law norms, invoking judicial review pretextually, and infringing other substantive constitutional norms. In sum, the concept of (un)constitutionality is as applicable to courts of last resort as it is to other governmental institutions or actors within a constitutional system and has important implications for traditional debates about the judicial power.

Original languageEnglish
Pages (from-to)1123-1198
Number of pages76
JournalUniversity of Illinois Law Review
Issue number5
StatePublished - 2005


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