Roger Partridge: Why Courts Cannot Determine the Scope of Their Own Authority

Critics of judicial overreach face an odd challenge. The most sophisticated response is not to defend the decisions – it is to deny that constitutional limits exist at all. If courts made the rules, the argument runs, courts can remake them. Last month’s column, An Inheritance Worth Defending, drew that response, among others.

Four arguments recur. On the surface they are distinct – one concerns the foundations of parliamentary sovereignty, one the proper limits of common law development, one a comparison with Australian constitutional law, and one concerns the lessons to be drawn from two landmark cases on judicial review and constitutional supremacy.