In Defense of Judicial Supremacy

By Chemerinsky, Erwin | William and Mary Law Review, April 2017 | Go to article overview

In Defense of Judicial Supremacy


Chemerinsky, Erwin, William and Mary Law Review


ABSTRACT

"Judicial supremacy" is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions--such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine--are misguided and should be abandoned.

TABLE OF CONTENTS

INTRODUCTION

I. WHY THE JUDICIARY?
II. IMPLICATIONS
    A. The Standing Doctrine
    B. The Political Question Doctrine
        1. The Guarantee Clause
        2. Gerrymandering
    C. The State Secrets Doctrine
III. TOO MUCH POWER IN THE FEDERAL COURTS?
CONCLUSION

INTRODUCTION

Marbury v. Madison got it right. Chief Justice John Marshall explained that the Constitution exists to impose limits on government powers, and these limits are meaningless unless subject to judicial enforcement. (1) Borrowing from Alexander Hamilton's Federalist No. 78, Chief Justice Marshall wrote: "The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." (2) And, he went on in perhaps the most frequently quoted words of the opinion: "It is emphatically the province and duty of the judicial department to say what the law is." (3) In other words, the Constitution depends on having judges with the power to enforce it.

Marshall got it exactly right, and that is why Marbury v. Madison has been a cornerstone of American government for almost its entire history. The Constitution exists to limit government, and the limits are meaningful only if someone or something enforces them. Enforcement often will not happen without the judiciary.

My thesis is that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is what I define as "judicial supremacy." (4) In this paper, I defend this role for the judiciary and then sketch some implications from it. (5) In Part I, I explain why the judiciary should be the authoritative interpreter of the Constitution. In Part II, I draw implications from this and argue that doctrines that keep the Court from enforcing the Constitution are misguided and should be abolished. In Part III, I respond to likely criticisms of my defense of judicial supremacy.

I. WHY THE JUDICIARY?

Of course, federal courts are not the only judicial institution that enforces the Constitution. State courts also can and do enforce the Constitution. (6) But this in no way diminishes the importance of the federal courts doing so. State courts often have no authority over federal officers or the federal government. For example, the law firmly establishes that state courts cannot grant habeas corpus to federal prisoners. (7) Nor would it make sense to have state courts resolve issues of federal separation of powers, such as when a dispute arises between Congress and the President. To pick a recent example, it would have been unrealistic to expect a state court to decide the constitutionality of a federal law requiring that the State Department allow the parents of children born in Jerusalem to have their passports indicate "Israel" as their birthplaces. (8) In situations like this, when there is a constitutional impasse between the other branches of the federal government, the federal courts must act as the umpire. Also, many of the doctrines that keep federal courts from enforcing the Constitution--such as the limits on suing government entities and government officers--apply just the same way in the state courts. …

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