Judicial Supremacy and Its Discontents

Article excerpt

   [T]he federal judiciary is supreme in the exposition of the law
   of the Constitution.... (1)

   The decision [Brown v. Board of Education] tortured the
   Constitution--the South will torture the decision. (2)

   Will nobody defend judicial supremacy anymore? (3)

   The Supreme Court has made its grab for power. The question
   is: will we let them get away with it? (4)

This is a remarkably quiet period in the public life of the Constitution. It is not a quiet time for constitutional law professors, of course, for whom there is always a crisis around the bend, a radical departure from fundamental values afoot, a usurpation of rights lurking. And there is certainly a lot of activity related to constitutional law, from the recent impeachment of President Clinton to judicial intervention in the election of 2000 to the creation of military tribunals to try suspected terrorists and enemy combatants.

It is a quiet period, however, in the sense that there is remarkably little public agitation about either the meaning of the Constitution or about the federal judiciary. Two hundred years after John Marshall set afloat the U.S.S. Judicial Review--over time slowly refitted and finally re-commissioned as the U.S.S. Judicial Supremacy--the sea is calm and the ship sails on.

Nearly every aspect of Marbury v. Madison (5) has been examined, praised, and criticized: the charged political and factual background of the decision, John Marshall's own participation in the events that led to it, the opinion's consideration of the merits before jurisdiction, its claim that for every right there must be a remedy, the assertion that the judiciary may issue orders to an executive official, Marshall's strained interpretation of Section 13 of the Judiciary Act of 1789, (6) his controversial reading of Article III, the conclusion that the federal judiciary may declare an act of a coordinate branch unconstitutional, the various arguments given for that power of judicial review, and many other aspects of the case. The spectrum of scholarly opinion ranges from those who have treated Marbury as a holy writ of American law, giving it pride of place as the first case reprinted in constitutional law textbooks, (7) to one scholar who views it as a relatively trivial pronouncement unworthy of the time necessary to explain it adequately in an introductory constitutional law course. (8)

But one modern legacy of Marbury has come recently to dominate scholarly debate above all others. In Cooper v. Aaron, one of the many cases involving defiance of the Supreme Court's declaration that public-school segregation is unconstitutional, the Court interpreted Marbury to establish not just judicial review but judicial supremacy, the doctrine that the Supreme Court has not just a word, but the final word, on the meaning of the Constitution. (9) Now a growing number of respected constitutional theorists, coming from a broad range of political and jurisprudential perspectives, have begun to question the legitimacy of judicial supremacy in constitutional interpretation. (10)

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives. My friend and colleague Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution for himself, is not obliged to adopt the Court's interpretation of the Constitution, and may even refuse to execute orders from the Court. (11) Professor Larry Kramer argues that the Rehnquist Court has transformed judicial supremacy into "judicial sovereignty," threatening to erase the idea of "popular constitutionalism" under which the people themselves are ultimately responsible for interpreting and implementing their Constitution. …