That Eminent Tribunal: Judicial Supremacy and the Constitution

That Eminent Tribunal: Judicial Supremacy and the Constitution

That Eminent Tribunal: Judicial Supremacy and the Constitution

That Eminent Tribunal: Judicial Supremacy and the Constitution


The role of the United States Supreme Court has been deeply controversial throughout American history. Should the Court undertake the task of guarding a wide variety of controversial and often unenumerated rights? Or should it confine itself to enforcing specific constitutional provisions, leaving other issues (even those of rights) to the democratic process? That Eminent Tribunalbrings together a distinguished group of legal scholars and political scientists who argue that the Court's power has exceeded its appropriate bounds, and that sound republican principles require greater limits on that power. They reach this conclusion by an interesting variety of paths, and despite varied political convictions. Some of the essays debate the explicit claims to constitutional authority laid out by the Supreme Court itself inPlanned Parenthood v. Caseyand similar cases, and others focus on the defenses of judicial authority found commonly in legal scholarship (e.g., the allegedly superior moral reasoning of judges, or judges' supposed track record of superior political decision making). The authors find these arguments wanting and contend that the principles of republicanism and the contemporary form of judicial review exercised by the Supreme Court are fundamentally incompatible. The contributors include Hadley Arkes, Gerard V. Bradley, George Liebmann, Michael McConnell, Robert F. Nagel, Jack Wade Nowlin, Steven D. Smith, Jeremy Waldron, Keith E. Whittington, Christopher Wolfe, and Michael P. Zuckert.


At the same time the candid citizen must confess that if the
policy of the government, upon vital questions, affecting the
whole people, is to be irrevocably fixed by decisions of the
Supreme Court, the instant they are made, in ordinary
litigation between parties, in personal actions, the people will
have ceased, to be their own rulers, having, to that extent,
practically resigned their government, into the hands of that
eminent tribunal.

—Abraham Lincoln, First Inaugural Address

In the past generation, an abundance of scholarship has clearly described the profound transformation in the role of the Supreme Court (and the judiciary in general) in American public life. While the Court has always played a significant role in our political system, it has not always wielded the broad policymaking power it regularly exercises today.

The scope and character of judicial power today is fundamentally inconsistent with the separation of powers embodied by the American founders in our Constitution. Current judicial excesses are not merely an aberration from our ordinary political arrangements, but raise the specter of establishing a new form of government. Even many of those who are opposed to judicial usurpation today are under the impression that it is merely a particular group of unusually “extreme” judges that account for this phenomenon. They fail to understand that extreme notions of judicial power have become entrenched in our legal and political system. And, as Lincoln argued, in regard to the Dred Scott case—with all the respect properly owed to the judiciary as a coordinate branch of government—to treat the Supreme Court as the final or ultimate authority on constitutional issues is to resign our self-government into the hands of “that eminent tribunal.”

At times in the past thirty years Court watchers have predicted a fundamental shift in the Court, a retrenchment of judicial power, due largely to the appointments by Republican presidents who have stated their desire to appoint judges who will interpret the law rather than make it. But . . .

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