Judicial Supremacy as Orthodoxy



To the educated public—even the general public—constitutional law consists of various cases that wend their way to the U.S. Supreme Court, which periodically decides the meaning of the Constitution, applies it to cases, and communicates that fact to a waiting nation. Advocates of this model occasionally acknowledge that Congress, the President, and the states may participate in constitutional debate at earlier stages, but those activities are considered distinctly subordinate and are given junior varsity status. According to this framework, the authoritative and final voice, regardless of content and reasoning, belongs to the Court.

This picture of constitutional law is not a stereotype. While several political scientists and legal academics have challenged this court-centered model,1 judicial supremacy nonetheless remains the dominant model taught in undergraduate, graduate, and law schools. Because of the preoccupation with case law and the neglect of nonjudicial actors, Professor Michael Reisman of the Yale Law School has said that there is no “comprehensive course on constitutional law in any meaningful sense in American law schools.”2 But belief in judicial supremacy is misplaced. The text of the Constitution, the intent of the framers, and the historical record of independent interpretations by the elected branches demonstrate the fallacy of the popular (and scholarly) belief in judicial supremacy. While Court decisions figure prominently in the shaping of constitutional values, elected officials and the American people also play a defining role in forging new understandings of the Constitution, even if that means challenging unpopular and poorly reasoned Court decisions.

Roots of Judicial Hegemony

Justice Robert Jackson once said that decisions by the Supreme Court “are not final because we are infallible, but we are infallible only because we are final.”3 A cute turn of phrase, but even the most casual observer of American history knows that the Court has been neither final nor infallible. Justice Byron White was closer to the truth when he said, in 1970, that “this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task.”4

Part of the exaggerated notions of judicial power relies on a famous statement made by Charles Evans Hughes: “We are under a Constitution but the Constitution is what the judges say it is.”5 It is generally thought that Hughes made this remark while Chief Justice. However, in fact, he said it while governor of New York. A more serious misconception is that Hughes never argued for judicial monopoly on constitutional, or even legal, matters. His speech responded to critics who opposed giving power to a commission to investigate abuses by railroads. He feared that without such powers in the hands of a commission, these divisive issues would flow into the courts and damage the judiciary as an institution. Judicial duties, he said, had to be carefully circumscribed. Any effort to transfer railroad issues to the judiciary “would swamp your courts with administrative burdens and expose them to the fire of public criticism[,]‌ … criticism from which they should be shielded and will be shielded if left with the jurisdictions which it was intended they should exercise.”6 Hughes was not calling the judiciary an 800-pound gorilla, capable of taking on all challengers. He advised his listeners to treat the courts as politically vulnerable. Judicial resources and goodwill must not be squandered in a vain show of overreaching.

The school of judicial supremacy has many defenders. Former federal judge Robert H. Bork wrote in 1990: “[T]‌he Constitution is the trump card in American politics, and judges decide what the Constitution means. When the Supreme Court invokes the Constitution, whether legitimately or not, as to that issue the democratic process is at an end.”7 An interesting argument: whether legitimate or not! Even Bork critic Ronald Dworkin championed judicial supremacy: “[T]he Supreme Court in the last analysis [has] the power to decide for the government as a whole what the Constitution means.”8

One might assume that members of Congress would jealously defend their independent right to interpret the Constitution, but some often refer to the Court as the supreme voice on constitutional matters. Although legislators necessarily consider constitutional values and issues throughout the year, sometimes they carelessly suggest that constitutional matters are reserved to the courts, not to Congress. In 1997, Senator Arlen Specter called the Court “the ultimate arbiter of determining what the law will be. … [W]‌e know since the [1803] decision of the Supreme Court of the United States in Marbury versus Madison, the Supreme Court of the United States has been the preeminent institution, because the Supreme Court of the United States has the last word.”9

Similarly, Representative Jim McDermott in January 2013 said that “as a member of the legislative branch, our job is not to decide whether something is constitutional or not.” Anyone who disagrees with Congress should “take it to the court for clarification” because “we would never get anywhere” if we asked “what will Justice Alito think on this or what will John Roberts think on that.”10

Such statements from legislators give inadequate credit to Congress, exaggerate the role of the judiciary, distort the holding in Marbury, and conflict with what we know about the development of constitutional law over the past two centuries. There are many examples to illustrate how Congress can challenge and reverse Court decisions on both statutory and constitutional questions. When lawmakers find it convenient to seek cover in a Court ruling, however, Congress’s willingness to both interpret the Constitution and challenge the Court gives way to political expediency.11

Congress also encourages the belief in judicial supremacy when it deliberately ducks a constitutional question. For example, rather than decide for itself whether the measure is constitutional, it includes in the statute an expedited procedure to permit quick challenges in the courts. Congress resorted to that practice four times from 1985 to 1996, and on all four occasions, the Court declared the legislation to be unconstitutional.12 The not-so-hidden message in statutes that contain expedited procedures: “We’re not sure about the constitutionality of what we have done. But the statute is politically popular and we don’t want to figure out whether we bungled it. But don’t worry. The Court will set it right.”

Presidents also promote a belief in judicial supremacy. Like Congress, the White House sometimes finds it easier to hide behind a Court decision than to take the heat for independently interpreting the Constitution.13 Witness, for example, President James Buchanan’s depiction of slavery as “a judicial question, which legitimately belongs to the Supreme Court of the United States.”14 One hundred years later, Dwight Eisenhower sounded a similar message in a very different setting. In sending federal troops into Little Rock in 1957 to enforce the 1954 decision in Brown v. Board of Education, Eisenhower expressed no opinion on whether Brown was correctly decided. Rather, he spoke of “the responsibility and authority of the Supreme Court to interpret the Constitution.”15 Unfortunately, this practice of treating Supreme Court rulings as definitive continues.16

Journalists and reporters often promote judicial supremacy. When the Supreme Court issues a significant decision, newspapers typically treat that ruling as final and definitive. Writing for the Washington Post in 1996, Joan Biskupic said the importance of the Supreme Court is not in the number of its cases: rather, “[i]‌t is in the court having the last word. The justices are the final arbiter of what is in the Constitution.”17 Curiously, the cases she offered to prove her point hardly support the last-word doctrine: Dred Scott (overridden by constitutional amendment), the striking down of New Deal laws (followed by judicial reversal), the desegregation case of 1954 (of limited impact), and Roe v. Wade (from which the Court conducted a partial retreat in Planned Parenthood v. Casey in 1992). In 1998, in describing the struggles of Justices in searching for a resolution, Biskupic concluded that “whatever a majority decides does indeed become the answer.”18 Roe v. Wade was the answer? Dred Scott? The decisions on child-labor legislation? At best, the Court provides an answer, which becomes one part of the mix of forces that shape the meaning of the Constitution.

Only in recent decades has the Supreme Court laid claim to delivering the final word. The supremacy premise began modestly with Marbury v. Madison (1803), when Chief Justice John Marshall declared that it is “emphatically the province and duty of the judicial department to say what the law is.”19 As explained later in this chapter, Marshall was in no position—politically—to dictate to the other branches. By 1857, the Court was sufficiently confident in its authority that Associate Justice John Catron informed President-elect James Buchanan that, in the slavery case of Dred Scott, the Court would “decide and settle a controversy which has so long and seriously agitated the country.”20 This assertion of judicial finality is remembered as a costly self-inflicted injury on the Court.

Judicial supremacy did not rear its head again until 1958, when the Court, in Cooper v. Aaron, repudiated Arkansas Governor Orval Faubus’s efforts to stop court-ordered school desegregation. By refusing to let black students enter Little Rock’s Central High School, Faubus ignored a lower court order. In response, the Supreme Court proclaimed that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.”21 In 1962 and 1969, the Court declared itself the “ultimate interpreter of the Constitution” in controversial decisions concerning reapportionment and the House of Representative’s refusal to seat Adam Clayton Powell.22

The Court’s vision of itself “as ultimate interpreter of the Constitution” persists today. In its 1992 decision on abortion rights, the Court argued that when it interprets the Constitution, it “calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”23 Similarly, in a 1997 decision on religious liberty, the Court insisted that Congress must accept constitutional rulings by the Court as authoritative and final.24

The Court’s habit of declaring itself the ultimate interpreter of the Constitution must be read with appropriate wariness. First, who says the Court has the final word? It does. Without being overly critical, isn’t there a bit of circularity here, a claim that is patently self-serving? How would we respond if the President said that of all the people in the country, it was his considered judgment that he is the most intelligent? Jimmy Fallon, Stephen Colbert, Jon Stewart, and other late-night comics would have a field day.

Second, the Court invariably calls itself the ultimate interpreter when it fears that the political order will ignore its command. That pattern is obvious with the disputes over Little Rock, reapportionment, Adam Clayton Powell, abortion, and the decision in 1997 on religious liberty. In all of those cases, the threat of elected official resistance to its orders cast a shadow on the Court’s decision-making. In the abortion case in 1992, for example, the Court spoke ominously of the “profound and unnecessary damage” it would suffer if it “surrender[ed] to political pressure.”25 In other words, the Justices’ sweeping declarations of judicial power cloak institutional self-doubt, much as a gorilla pounds his chest and makes threatening noises to avoid a fight. In this decision, the Court did indeed—under severe criticism of Roe v. Wade—agree to discard its trimester framework.

The Scope of Judicial Review

Judicial supremacy has no basis in the Constitution. The text does not expressly confer upon the Supreme Court the power to declare unconstitutional an act of Congress, the President, or state government. Judicial review is implied in certain language in the Constitution and comments by the framers, but it is largely judicial review against states, not against Congress and the President. Under article III, section 2, judicial power extends to all cases “arising under this Constitution, the Laws of the United States, and Treaties made.” In most of the early drafts at the Constitutional Convention, the language “arising under” applied only to laws passed by Congress.26 On August 27, 1787, William Samuel Johnson moved to revise the wording to “arising under this Constitution and the Laws of the United States, and Treaties made.” James Madison objected, stating that he “doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases of this nature ought not to be given to that Department.”27

Johnson’s motion was agreed to without further discussion, “it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.”28 What do we make of this legislative history? Evidently, the effort to limit the Court’s power to cases of a “judiciary nature” implied that the Court had less than a full-scale power of judicial review. At the Virginia ratifying convention and in Alexander Hamilton’s Federalist No. 80, the intent of the arising-under language is clarified: it meant judicial review only against the states.29 Judicial control over Congress and the President was not implied.

Whenever the framers discussed judicial review, they generally referred to it as a means of controlling the states. Madison, concerned about state encroachment, wanted Congress to exercise a veto power over state actions that violated the U.S. Constitution. Roger Sherman thought this congressional power was unnecessary because state courts would have the power to strike down invalid state laws.30 Other delegates favored judicial review over state laws. State actions inconsistent with the Constitution “would clearly not be valid,” said Gouverneur Morris, and judges “would consider them as null & void.”31

In October 1788, while commenting on a draft constitution for Virginia, Madison expressed strong opposition to judicial supremacy. He analyzed proposed language for a “Council of Revision,” which would have allowed judges and the executive to review bills passed by the Virginia legislature. Either the judges or the executive could object to bills they considered hasty, unjust, or unconstitutional. However, two-thirds or three-fourths of each house could then override the objection. In cases where a bill had a constitutional dimension and the legislature voted to override the council, Madison preferred that the bill be suspended until the next election and require repassage by a two-thirds or three-fourths vote. He did not want the final word left to judges:

In the State Constitutions & indeed in the Fedl one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making [the] decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended and can never be proper.32

Before Marbury was decided, lawmakers recognized that if Congress passed legislation flatly against the text of the Constitution, federal courts had every right to strike it down. The Constitution prohibits Congress from passing a bill of attainder (legislative punishment without judicial trial). If Congress passed such a bill, Representative James Bayard had no hesitation to say that courts “are bound to decide” the constitutional question.33 Another clear example: the Constitution empowers Congress to suspend the privilege of habeas corpus in time of rebellion or invasion. Bayard asked: “Suppose a law prohibited the issuing of the writ at a moment of profound peace?”34 To Bayard, federal judges would be required to take a case challenging the suspension and declare it unconstitutional.

From 1789 to 1803, several judicial precedents set the stage for the Court’s declaration in Marbury that it could declare acts of Congress unconstitutional. In 1792, federal judges objected to a congressional statute that required them to serve as commissioners to settle claims of military pensions. Because their decisions could be set aside by the Secretary of War, the courts were essentially issuing “advisory opinions” and serving as subordinates to executive officials. Before the Supreme Court could rule on the constitutionality of the statute, Congress repealed the offending sections and removed the Secretary’s authority to veto decisions rendered by federal judges.35

In 1796, the Court upheld the constitutionality of a carriage tax passed by Congress.36 If the Court had the power to uphold a congressional statute, presumably it had the power to strike one down. However, Justice Chase said it was unnecessary “at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void . . . but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case.37 Thus, almost a decade after the Constitutional Convention, the Court was uncertain about judicial review over Congress. At most, the scope appeared to be limited and certainly not the freewheeling judicial power of subsequent years.

In 1798, the Court upheld another congressional statute, this time involving the procedure for amending the Constitution.38 That same year, several Supreme Court Justices offered a range of opinions on the existence and scope of judicial review. Justice Iredell cautioned that the Court should never invoke judicial review against Congress except in a “clear and urgent case.” He particularly objected to striking down laws on such vague grounds as “the principles of natural justice,” which were regulated “by no fixed standard” and invited too much judicial lawmaking.39 As late as 1800, the Court remained unsure about invalidating an act of Congress. Justice Chase said that even if it were agreed that a statute contrary to the Constitution would be void, “it still remains a question, where the power resides to declare it void?” The general opinion, he said, was that the Court could declare an act of Congress unconstitutional, “but there is no adjudication of the Supreme Court itself upon the point.”40 Soon there would be.

The Misunderstood Marbury Precedent

Marbury v. Madison, in which the Court declared a portion of the Judiciary Act of 1789 to be unconstitutional, is generally treated as an authoritative basis for judicial supremacy. However, in fact, it stands for a much more modest proposition. Chief Justice Marshall stated that it is “emphatically the province and duty of the judicial department to say what the law is.”41 So it is, but the authority to say what the law is does not make the Court supreme, other than in that particular case. It is also the province and duty of Congress, in concert with the President, to say what the law is. The Court merely states what the law is on the day the decision comes down. If Congress and the President disagree with that interpretation, the law may change after that.

Did Chief Justice Marshall believe that the Court was so superior to the other branches that it could dictate to them? Certainly not. The Court was in no position in 1803, politically, to issue orders to Congress and the President. The Jeffersonians had captured control of Congress and the presidency in the election of 1800. The Federalist Party remained in control of the judiciary, but that position was tenuous. Marshall knew he could not strong-arm the other branches.

Federalist appointee William Marbury, nominated by President John Adams and confirmed by the Senate to be a Justice of the Peace in the District of Columbia, never received his commission. He wanted the Court, under a provision in the Judiciary Act of 1789, to order President Jefferson or Secretary of State Madison to deliver the commission. Suppose that Marshall decided the provision was constitutional and that he possessed statutory authority to issue a mandamus. Did he think his order would be obeyed? No. Everyone, including Marshall, knew what would happen. As Chief Justice Warren Burger has noted: “The Court could stand hard blows, but not ridicule, and the ale house would rock with hilarious laughter” had Marshall issued a mandamus ignored by the Jefferson administration.42 Marshall avoided this humiliation by holding that the statutory provision was unconstitutional.

The Court’s precarious position was underscored by the impeachment proceedings initiated by Jeffersonians. Marbury was decided on February 24, 1803. The House impeached John Pickering, a district judge, on March 2, 1803, and the Senate convicted him on March 12, 1804. As soon as the House completed impeachment proceedings against Pickering, it turned its guns on Justice Samuel Chase. If that move had succeeded, Marshall could have been the next target.

In this perilous atmosphere, Marshall wrote to Chase on January 23, 1805, suggesting that if members of Congress objected to judicial decisions, it was not necessary to impeach judges. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Marshall’s letter to Chase is somewhat ambiguous. He could have been referring to reversals of statutory interpretations, not constitutional interpretations, but given the temper of the times, the latter seems more likely. Here is Marshall’s language to Chase:

I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.43

That is not the language of an arrogant, chest-thumping Supreme Court. It has a nervous tiptoe quality, anxious to survive from day to day in a political climate clearly hostile to judicial power. To speak of judicial supremacy in such times is untenable. As political scientist Walter Murphy has written: “For his part, Marshall in Marbury never claimed a judicial monopoly on constitutional interpretation, nor did he allege judicial supremacy, only authority to interpret the Constitution in cases before the Court.”44

The Role of Elected Branches

In the early decades, when there were few decisions by the Supreme Court to light the way, Congress and the President necessarily tackled, on their own, a number of complex constitutional issues. Without guidance from the Court, Congress deliberated and acted for years on such issues as the President’s removal power, judicial review, the Bank of the United States, congressional investigative power, slavery, internal improvements, federalism, the war-making power, treaties and foreign relations, and interstate commerce.45 It was in the elected branches, “not in the courts, that the original understanding of the Constitution was forged.”46 Legislative and executive debate was informed, intense, and diligent. It had to be, given the paucity of direction at that time from the Supreme Court and the lower courts.

Certainly judicial supremacy would have been alien to the members of the First Congress. During the debate in 1789 on the President’s removal power, James Madison saw no reason to defer to the judiciary on the constitutionality of what Congress was about to do. While acknowledging that “the exposition of the laws and Constitution devolves upon the Judiciary,” he begged to know on what ground “any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments?”47

Early Presidents also believed that each branch of government should act as an independent interpreter of the Constitution. George Washington’s first veto was on constitutional grounds. Thomas Jefferson, viewing the Alien and Sedition Acts (part of which criminalized speech critical of the government) as patently unconstitutional, used his pardon power to discharge “every person under punishment or prosecution under the sedition law.”48 Andrew Jackson announced his own theory of coordinate construction in an 1832 message vetoing legislation to recharter the Bank of the United States. The fact that a unanimous Supreme Court in 1819 had approved the Bank’s constitutionality in McCulloch v. Maryland

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