The Myth of Judicial Supremacy

Basic questions about our government, and how it functions, and its legitimacy are in the news daily. The Supreme Court’s latest term came to an end in June -- as they often do -- with a bang, with important decisions on same-sex marriage, the preservation of the Affordable Care Act (ACA), the power of the Environmental Protection Agency (EPA), housing policy, and the death penalty. 

Yet, public opinion data regularly show that Americans don’t understand the Supreme Court, or how it works, or the decisions it makes (e.g., Pew July 2010 poll).

There is no more reliable and readable guide for American voters than The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen. This is a lively, well-written, balanced, non-technical introduction to the U.S. Constitution and its history. It gives a lucid history of major Supreme Court cases and constitutional developments of the 19th and 20th centuries, with short vignettes of some of the major justices, political leaders, litigants, and events that shaped that history.

The Constitution rests on the political doctrine -- proclaimed in the Declaration of Independence -- of government by the consent of the people. The basic framework includes a written constitution and republican (representative) government, separation of governmental powers -- executive, judicial, legislative -- with checks and balances, and a federalist structure, dividing power between a national and state governments. 

In addition to being a comprehensive survey of constitutional history, The Constitution: An Introduction is also a timely challenge to the current dogma -- widely supported in the law schools and by the legal profession today -- of judicial supremacy (“whatever the Supreme Court says, goes.”). Can the Supreme Court legitimately bind the Presidency and the Congress, and all the states, by any decision, no matter how wrong? This is a question that has recurred with periodic intensity throughout American history.

The Constitution establishes constitutional supremacy, not judicial supremacy. “The Supreme Court’s decisions are not supreme over the Constitution itself,” the authors write, “and therefore cannot bind other responsible actors in the exercise of their independent constitutional responsibilities.”

That the Constitution did not create judicial supremacy is confirmed by the text, and tradition, and Supreme Court decisions. Article VI says that “The Constitution, and the laws of the United States made in pursuance thereof…shall be the supreme law of the land…” And the Constitution requires oaths of officials, including judges, to obey the Constitution. The Constitution created the courts, as it did the other two branches, and limits the judicial power, as it does the power of the executive and legislative branches. None of the three branches of government can be supreme over the document ratified by the people that grants and limits governmental power.

The Constitution also distinguishes the judicial, executive and legislative powers and separates them. As James Madison wrote in Federalist #49: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”

The notion of “judicial supremacy” is contrary to the framers’ understanding of the judicial role. As Alexander Hamilton wrote in Federalist No. 78: “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” As Stanford Law Professor Michael McConnell has observed, “No one at the founding appeared to take the now popular academic view that the Constitution was deliberately framed in terms of heroic generalities precisely to give federal judges a wider scope for discretion.”

The power of judicial review does not imply judicial supremacy. That power is not in the text of the Constitution and was not created by the Supreme Court. It was recognized to exist before the Supreme Court first engaged in judicial review in Marbury v. Madison in 1803. A bad reading of Marbury has created the myth of judicial supremacy. But Marbury’s reasoning refutes it. Chief Justice Marshall’s opinion in Marbury for a unanimous Court said, “the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” Marshall wrote: “[c]ertainly all those who framed written constitutions contemplate them as forming the fundamental and paramount law of the nation….”  He closes Marbury by noting that “courts, as well as other departments, are bound by that instrument.”

Some of our most important presidents rejected the notion that “whatever the Court say, goes.” Candidate Abraham Lincoln rejected the legitimacy of the Supreme Court’s Dred Scott decision when decided in 1857:  

We oppose the Dred Scott decision…. as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on members of Congress or to the President to favor no measure that does not actually concur with the principles of that decision…. We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.

President Lincoln refused to obey Chief Justice Taney’s order in Ex parte Merryman to respond to Taney’s writ of habeas corpus. And Lincoln signed an act of Congress in June 1862 that prohibited slavery in the western territories in defiance of Dred Scott.

Whenever the justices have asserted the Supreme Court’s authority in constitutional matters, they have consistently sought to attribute it to the Constitution, its text, purpose, history or structure, and not to their own power or ideas. In Planned Parenthood v. Casey in 1992, for example, the justices said that they were “calling” citizens to a “common mandate rooted in the Constitution” (though they refused in that case to explain how a right to abortion is rooted in the text). When Justice Sonia Sotomayor was asked, at her confirmation hearings in 2009, if she agreed with President Obama’s criteria of “empathy” for choosing judges, then-Judge Sotomayor replied:  “I... wouldn’t approach the issue of judging in the way the president does…. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases, it’s the law.”

What the justices say about the Constitution is not the same as the text ratified by the people. This is confirmed by the fact that the Court has reversed its own decisions as wrongly decided more than 230 times.

Judicial supremacy fundamentally contradicts self-government. By its comprehensive treatment of constitutional text and history, The Constitution: An Introduction makes clear what is at stake for self-government when the judiciary goes beyond its constitutional authority, though it cannot say whether or how Americans will effectively respond to keep judges within their constitutional limits.

Clarke Forsythe is Senior Counsel at Americans United for Life and author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013). 

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