Academic journal article William and Mary Law Review

Judicial Supremacy and Taking Conflicting Rights Seriously

Academic journal article William and Mary Law Review

Judicial Supremacy and Taking Conflicting Rights Seriously

Article excerpt


The best arguments in favor of judicial supremacy rely on its essential role of protecting rights in a democracy. The doctrinal technique of strict scrutiny, developed to do the work of judicial supremacy, has been an important tool in our constitutional jurisprudence in the service of rights protection. When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach. Rather, the Court should consider very carefully the rights claims in favor of the statute as well as those launched by a challenger. In such cases of conflicting rights, the Court has not taken seriously enough the obligation that justifies judicial supremacy, taking rights seriously.




Judicial supremacy is more an attitude than a principle. At the end of the day, there is little space between the natural consequences of judicial review and a system of judicial supremacy, defined as "the obligation of coordinate officials not only to obey [a judicial] ruling but to follow its reasoning in future deliberations." (1) Although judicial supremacy posits deference by other government actors to judicial interpretations even when they think that courts are wrong, (2) the actual impact of any such disagreement is quite small. If the other branch is a party to a case, then the court's interpretation of the Constitution will necessarily prevail over that of any other branch of government. (3) For areas of constitutional meaning that are not potential cases, then even rhetorical hyperbole on behalf of courts' primacy would be tempered by the incapacity of federal courts to give advisory opinions, (4) so that most disagreements over meaning on matters not subject to judicial review would be largely hypothetical.

It is often said that the Court indulged in the great hubris of judicial supremacy in Cooper v. Aaron, but it is important to distinguish what the Court said in Cooper from what it did. (5) In Cooper, often touted as the high watermark of judicial supremacy, (6) the Court made some bold statements suggesting that the Constitution means only what the Court says it means. (7) But consider what the Court did. A party to the case was seeking relief from a federal court's order to desegregate on the ground that the State of Arkansas had interfered with its ability to comply; (8) it is hard to see any choice for the Court other than to rule against the legitimacy of the State's effort to undermine a court order issued to vindicate an individual right of injured plaintiffs. The Governor of Arkansas was not rebuked for merely articulating disagreement with a court in the abstract, but for claiming the power to disrupt fulfillment of a court's decree. (9) The Court did indulge in some far-reaching language, displaying an attitude which has been the subject of a great deal of criticism. (10) But keeping in mind that such language, coupled with the unique symbolic act of all nine Justices claiming authorship of the opinion, (11) was all the Court had to respond to an assault of words and violence on its authority to decide cases within its own sphere, the decision itself is surprisingly unremarkable. As Cooper demonstrates, attitude has played a significant role in the story of judicial supremacy.

The question then is why there has been so much debate about a concept of judicial supremacy that, in its most formalistic sense, has little impact on courts' legitimacy in deciding cases before them and applying their view of the law as precedent. There are other facets of the phenomenon of judicial supremacy that regard its rhetorical and political force within the government, (12) but with regard to the legal impact of judicial supremacy, I claim that the major complaints are not actually about courts having the final word at all. …

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