Professor Brandon Johnson’s article, Concentration of Powers, has been accepted for publication in the UC Davis Law Review.
The abstract is below:
This Article critically interrogates the Roberts Court’s evolving administrative law jurisprudence as a paradigm of judicial aggrandizement. It traces active efforts by the Court to concentrate policymaking power within the judiciary at the expense of the legislative and executive branches. It begins by challenging the conventional narrative of judicial supremacy rooted in Marbury v. Madison, arguing that while judicial review remains essential, the modern Court’s expansion of interpretive authority transcends its traditional role. Distinguishing between judicial supremacy and judicial aggrandizement, the Article traces how historical debates over the judiciary’s proper role have evolved into a contemporary project of self-expansion.
Through a comprehensive analysis of recent administrative law decisions, including the overruling of Chevron deference, modifications to appointment and removal doctrines, and the development of the Major Questions Doctrine, the Article demonstrates that the Court has systematically usurped agency expertise and congressional intent. It further examines how the Court’s language—both in majority opinions and concurrences—employs a rhetoric of constitutional guardianship to justify this shift, presenting itself as the sole arbiter of separation-of-powers disputes.
The Article then proposes some preliminary strategies for rebalancing interbranch authority, notably by “de-centering” the Court in academic and public discourse and questioning the entrenched notion of judicial supremacy. By advocating for a reimagined framework that redistributes interpretive power among all co-equal branches, the Article suggests some initial steps towards a more democratic approach to constitutional interpretation.
