A Constitutional Right to Judicial Review: Access to Courts and Ouster Clauses in England and the United States

Abstract

This Article examines legislative attempts to preclude judicial review through statutory provisions that purport to strip courts of their jurisdiction. At bottom, these “ouster clauses” raise serious questions about relationships among organs of government, judicial independence, and constitutionalism. By contrasting the basic principle of English constitutional law, parliamentary sovereignty, with a fundamental structural feature of the American constitutional system, separation of powers, the Article begins by noting that it might seem unremarkable that the sovereign British Parliament would, on occasion, attempt legislatively to oust the jurisdiction of English courts. Correspondingly, the Article notes that it might seem unlikely that the coequal American Congress would ever attempt legislatively to preclude judicial review of federal claims in federal courts. After addressing the distinction between statutory cases (where one might expect to find more judicial deference to legislative ouster) and constitutional cases (where one might not), the Article notes that, somewhat surprisingly, British courts seem loath to permit ouster even in statutory cases while American courts largely tolerate this practice. However, in constitutional cases, both the English courts and the American courts seem unwilling to relinquish their jurisdiction and institutional position in the face of legislative pressure. To explain this unified response, despite apparent or alleged constitutional differences, the Article develops the connection between the fundamental right of access to the courts in England and a similar, but largely unstated, recognition of this right in the United States. The Article challenges commonly offered explanations based on a written I unwritten constitution, assertions about legislative supremacy, and differences in theoretical justification for and exercise of judicial review. Instead, the Article attempts to explore the authentic nature of both nations' overarching commitments to the rule of law and judicial autonomy through the work of contemporary scholars and judicial decisions.