The current President of the United States has a relationship with the law that is casual at best and contemptuous at worst. Whether the nation is facing a constitutional crisis has thus become a topic of debate among scholars and the public.1 The answer turns in important part on the degree to which the judiciary can help confine the emboldened Executive to constitutional limits.2 But alongside individual judges,3 the institution of judicial review (through which courts can determine whether government actions comply with the law and counteract them if not) is under attack. Combatants include President Donald Trump,4 Administration officials,5 congressional partisans,6 and state lawmakers.7 Judges, including members of the Supreme Court, have entered the fray.8
This Symposium, titled “Judicial Review in Jeopardy?,” seeks to make sense — and suggest some ways out — of these circumstances. To do so, this Introduction proposes, we should see judicial review through the lens of Professors Richard Fallon and Daniel Meltzer’s contention that our constitutional structure “demands a system of constitutional remedies adequate to keep government generally within the bounds of law.”9 To realize that system, federal courts must remain willing — and recognize their authority — to both check and balance assertions of political power. By this, I mean that in agenda setting and doctrinal development, courts (including the Supreme Court) ought not rest on the abstract ability of judicial review to respond to some governmental abuses. Within methodological margins, courts should instead consider the actual extent and efficacy of constitutional remedies to confront a meaningful proportion of constitutional violations — a proportion, that is, capable of producing substantial deterrence across varied and evolving circumstances.