Should the Judiciary Reign Supreme?

This podcast was recorded in Summer 2022. It has been edited for length and clarity.

Introduction

When the Supreme Court settles a case, it often evaluates the constitutionality of a law. If the statute conflicts with any constitutional provision, the Court holds that the state cannot enforce it. Why are Congress and the president bound by this determination – are they bound at all?

Definition and Overview

I’m Lucas Gazianis, a staff writer for the Harvard Undergraduate Law Review, and today, we are talking about judicial supremacy, the notion that the judiciary has the last say on interpreting the Constitution – that its interpretations are binding on the other branches. This is the norm that dictates modern American politics – the reason that no state refuses to license same-sex marriages or prohibits the individual ownership of handguns. It is a perennial and fundamental debate in constitutional law. It’s not actually written in the Constitution, and there are thousands of pages in law reviews and political science journals dedicated to debating this question. In other words, this review will have to just scratch the surface, but I want to cover the basic origin of judicial supremacy and get into the political justifications for it and criticisms of it.

Origin

We turn first to Marbury v. Madison, in which the Court established the power of judicial review in 1803. Recall the clause establishing the Constitution as the supreme law of the land. Chief Justice John Marshall reasoned that if the Constitution conflicted with a legislative act, the act could not stand – or else the supreme law of the land would be “on a level with ordinary legislative acts.” He wrote that the judiciary’s fundamental role was to interpret the law, and the power of judicial review was central to that mission. The constitutional order without it would amount to “giving the legislature a practical and real omnipotence.”

Now, fast forward to 1958, in the wake of Brown v. Board of Education. Rejecting Arkansas’ attempts to resist desegregation, the Court said in Cooper v. Aaron that since the Constitution is the supreme law of the land, and Marbury gave the Court the last say on constitutional interpretation, Supreme Court decisions are binding as the supreme law of the land, overriding any laws that contradict them. The Court took what many saw as a logical implication of judicial review in Marbury and set it forth directly. This gives us a glimpse into the modern state of judicial supremacy and the way that probably most of us perceive the Supreme Court’s role today.

Arguments Against

Now, judicial supremacy has many critics who would say that this arrangement effectively grants the Supreme Court the “practical and real omnipotence” that Marbury cautioned against for the legislature. They say there is nothing more undemocratic than nine unelected judges having the authority to make binding decisions on the fundamental rights of three hundred thirty million Americans – deciding things as intimate and important as abortion and marriage.

These claims have some support in our history. First, some seminal figures in American history, including framers such as Thomas Jefferson, subscribed to judicial supremacy’s antithesis, departmentalism, the notion that each branch has co-equal power to interpret the Constitution. Among them was President Lincoln. In the defining period leading up to the Civil War, Lincoln reacted to the Court’s disastrous Dred Scott decision by fiercely resisting judicial supremacy. He denied that the Court’s decisions could “be regarded as deciding questions of constitutional power” without the support of the people and states. He argued in his first inaugural address that acquiescing to judicial supremacy would mean “the people will have ceased, to be their own rulers.” Congress agreed, and during the Civil War in 1862, Lincoln signed a bill banning slavery in the territories, directly defying Dred Scott. This is just one of multiple instances of Lincoln defying the judiciary’s commands, and he wasn’t alone. Matthew Franck of Princeton notes that several presidents, including Jefferson, Jackson, and FDR, challenged judicial supremacy in office. Lincoln did so most famously, and his stewardship of the nation during its most tumultuous period is a testament to his constitutional vision.

Arguments In Favor

While this is powerful, we next consider the other side’s arguments about the separation of powers.

First, they say, the judiciary lacks enforcement power. If the other branches are not bound by its interpretations of the Constitution, then each branch essentially possesses the ability to judge the constitutionality of its own actions. The executive and legislative branches can check each other in limited ways, yes – like vetoes – but there’s a fundamental problem here: When the president and Congress act in concert, there would be no external check on unconstitutional policies without heeding the judiciary. And in a divided government, Congress may have to resort to impeachment – and the executive may have to refuse to enforce the law – when it found the other body’s actions unconstitutional. So, in constitutionally fraught scenarios where checks on the political branches are most necessary, each branch is arguably ill-equipped to effectively balance the other.

Second, we like to envision the interpretation of the Constitution as apolitical. Whether or not this is fully true or even attainable, the argument goes, the highly political nature of the executive and legislative branches renders them fundamentally unfit to have the “final say” in constitutional matters. If nine unelected judges having the final say is undemocratic, it is at least a balance against the tyranny that can be enacted by elected officials. Supporters of judicial supremacy point to this: Our historically polarized Congress’ approval rating is in the teens. We all see how many officials sacrifice good governance to pander to the whims of the loudest voices in their party. Many Americans believe that members of Congress operate more in service of expediency and re-election than genuine belief. So, they ask, this body should now have the power to check the constitutionality of its own laws? The judiciary, even if imperfect, is insulated from the political factors that make Congress and the president unable to render fair constitutional judgments.

Conclusion

As you can discern, this issue is not going to be resolved anytime soon, and with the Court assuming a greater role in political matters, it’s likely to become more salient in the foreseeable future. I want to thank everyone for tuning in, and there’s a mountain of interesting resources on this, so please: dive in.