Questioning the Supreme Court’s Supremacy
Should the political branches have a say in interpreting the Constitution?


Earlier this month, the Supreme Court opened what promises to be a term of exceptional significance. It is widely expected that the Court will consider the constitutionality of the recently enacted health-care law, and it may examine laws that define marriage as the union of one man and one woman. But outside the Court, there will be a struggle of far greater significance: a fight over whether the decisions of the Court are the final word on the meaning of the Constitution.

The most dramatic challenge to the Supreme Court’s authority as the ultimate constitutional interpreter has come from former speaker of the House Newt Gingrich, who gave a speech at the Value Voters Summit earlier this month asserting that the constitutional judgments of the president and Congress are entitled to as much respect as those of the Court. Mr. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning — he would even ignore a Court decision if he strongly believed that the Court’s judgment on an important issue was contrary to the true meaning of the Constitution.

Mr. Gingrich’s speech has caused a great deal of consternation among those accustomed to thinking of the Court as having the final word on the Constitution’s meaning, a doctrine known as judicial supremacy. The New York Times, happy to beg the question, declared that the Supreme Court’s own decision in 1803’s Marbury v. Madison “gave the Supreme Court the last word in interpreting the Constitution.” Think Progress’s Ian Millhiser was absolutely apoplectic; the upshot of his screed is that Mr. Gingrich’s argument is “obviously not a view that’s compatible with the rule of law. It deserves nothing more than scorn.”

Such reactions are to be expected. The idea of judicial supremacy is so entrenched in the popular mind that Nancy Pelosi once described a decision of the Supreme Court as being “almost as if God has spoken.” This explains why, when Rep. Michele Bachmann declared that the health-care-reform statute is unconstitutional at a GOP debate in August, Calvin Woodward of the Huffington Post was quick to point out what he saw as the obvious “fact” that “nothing is unconstitutional until courts declare it to be so.”

Curiously, no such “fact” appears anywhere in the Constitution. Indeed, the idea that the Supreme Court should be the last voice on constitutional meaning has been contested throughout American history. Thomas Jefferson called the idea of judicial supremacy “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Since the founding, the other branches of government have not only refused to pass laws they thought were unconstitutional when the Court said otherwise — they have even directly defied the Court’s orders.

Andrew Jackson famously vetoed a bill reauthorizing the Bank of the United States on the grounds that it was unconstitutional, even though the Supreme Court had said otherwise in McCulloch v. Maryland. But the most striking example is undoubtedly that of Abraham Lincoln, who issued passports to free black citizens in contravention of the Court’s ruling in Dred Scott v. Sandford. It was Lincoln who, delivering his first inaugural address under the cloud of Dred Scott, warned that if the meaning of the Constitution was “irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . 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.”

This long history of challenges to judicial supremacy has been well documented by scholars including Dean Larry Kramer of Stanford Law School and Keith Whittington of Princeton University. Yet, this election season marks the first time since Attorney General Edwin Meese’s 1986 Bicentennial Lecture that a major political figure has challenged the Court’s authority over the Constitution. And Mr. Gingrich is the not the only candidate to explore these ideas. In a recent radio interview, Mrs. Bachmann maintained that the health-care law must be repealed as unconstitutional even though the Court is very likely to consider the matter this term. Her statement indicates a willingness to assert a constitutional judgment regardless of whether the Court has already spoken on the matter.

Perhaps, then, the political branches are moving beyond what Harvard Law professor Mark Tushnet calls the “judicial overhang,” the idea that politicians “may define their jobs as excluding consideration of the Constitution precisely because the courts are there.” Mr. Gingrich has forcefully rejected judicial supremacy, and Mrs. Bachmann and Sen. Mike Lee (R., Utah) both take the position that they must interpret the Constitution in the manner they believe is correct — irrespective of the method by which the Court interprets the document. If that is the case, the question that naturally arises is this: How should the political branches interpret the Constitution?