Academic journal article Texas Review of Law & Politics

Judicial Supremacy Has Its Limits

Academic journal article Texas Review of Law & Politics

Judicial Supremacy Has Its Limits

Article excerpt

I. INTRODUCTION

Obergefell v. Hodges 1 has renewed debate over the proper scope of judicial review. After the steady expansion of gay rights in the 1990s and 2000s in United States v. Windsor,2 Lawrence v. Texas,3 and Romer v. Evans, 4 it should have come as no surprise that Justice Anthony Kennedy would join with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan to strike down state bans on gay marriage. Supporters of gay rights will no doubt claim that Obergefell has finally settled the constitutionality of the question. In this essay, I will set out why Supreme Court decisions may settle questions of constitutional interpretation for the judiciary, but not for the other branches of government.

Many leading scholars have recently questioned the very existence of judicial review.5 A broader group has debated the supremacy of judicial interpretation of the Constitution over the other branches.6 Much of this discussion was precipitated by the Rehnquist Court's declaration in City of Boerne v. Flores7 that its interpretation of the Fourteenth Amendment binds Congress's interpretation.8 Academics may not have displayed the same level of concern over the Supreme Court's unprecedented declaration of authority to review the legal status of enemy prisoners of war,9 or the Obergefell decision, but the question remains the same. These scholars draw on a deeper trend of skepticism toward judicial review inspired by Cooper v. Aaron,10 the decisions of the Warren Court in the 1960s, 11 and the decisions of the Four Horsemen in the New Deal period.12 In this respect, these authors are tackling the same problems as did Jesse Choper,13 John Hart Ely,14 Learned Hand,15 and Herbert Wechsler.16

Our starting point should be common ground for these scholars: the Constitution requires each branch of government to interpret the Constitution for itself.17 Early critics of judicial review argued that the Constitution did not expressly authorize judicial review.18 But from the beginning, judicial review has been on firm ground, and it is has been frequently (but incorrectly) claimed that the other branches have no place in interpreting the Constitution. As Sai Prakash and I have argued, the judicial power to hear cases arising under the Constitution was understood to include the authority to decide the meaning of the Constitution.19 When faced with a case where one party claims a right under an Act of Congress and another relies upon the Constitution, the federal courts must choose between the sources of law.20 Judicial review flows from the federal courts' duty to choose the higher law of the Constitution over the statute as a rule of decision-making.21 If Congress, for example, defined treason as a crime provable with the testimony of only one witness, a federal court would have to refuse to convict because the Constitution requires two witnesses. Judicial review is the manner in which federal judges implement their obligation to obey the written limits on the delegation of power to the government while performing their unique function of deciding Article III cases or controversies.

Other provisions confirm this reading. Article VI requires that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made . . . under the Authority of the United States, shall be made the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."22 In order to decide whether a state law conflicts with a constitutional provision, federal courts must interpret the Federal Constitution first.23 The Supremacy Clause also makes clear that the Constitution itself is law to be enforced in court, rather than a set of mere unenforceable political goals.24 Both Article III25 and Article VI26 include the Constitution as a source of law for the courts. If the Constitution can supply rules of decision for cases or controversies, judicial review becomes inevitable. …

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