Law & the Courts

Why Judicial Supremacy Isn’t Compatible with Constitutional Supremacy

(NRO; Camrocker/Dreamstime)
From the September 21, 2015, issue of NR

A pro-choice voter in New Hampshire had a question for John Kasich, the Republican governor of Ohio, who was making the rounds as a presidential candidate: Would he “respect” Roe v. Wade even though he is a pro-lifer? Kasich answered, “Obviously, it’s the law of the land now, and we live with the law of the land.”

Whether he knew it or not, Kasich had wandered into a debate over the courts, one in which some of the other presidential candidates are also participants. Mike Huckabee, the former governor of Arkansas, has denounced “judicial tyranny.” When five justices ruled that the Constitution requires governments to recognize same-sex marriage, he scoffed that the Supreme Court was not “the Supreme Being.”

It’s an often-heated debate. Huckabee’s side says that the courts have established a “judicial supremacy” at odds with the actual constitutional design; the other side says that people like Huckabee are threatening the rule of law. Both sides have some reasonable points, and both could profit from conducting the debate at a lower level of abstraction.

RELATED: The Myth of Judicial Supremacy

Huckabee’s side of the argument is of course the weaker one in our political culture. Think of how often people say, without realizing they are making a controversial claim, that abortion is “a constitutional right” or that laws against it are “unconstitutional.” The Supreme Court has ruled to that effect; our shorthand treats its rulings as either correct by definition or authoritative in such a strong sense that we should describe them as though they were. “The Constitution is what the judges say it is,” as Chief Justice Charles Evans Hughes said before he was on the Court.

Even when arguments about judicial supremacy appear to have no practical import, they lie beneath judgments about how we should talk about judicial decisions.

The case against this way of thinking holds that judicial supremacy is incompatible with constitutional supremacy. The courts can get the Constitution wrong; if they could not, there would be no point to justices’ trying to get it right by reasoning about the Constitution. Judicial review, though not explicitly authorized by the Constitution, can be inferred from it: In cases where the courts have to decide whether to apply the Constitution or a statute that conflicts with it, the higher law has to take precedence. The case against judicial supremacy rests on a similar inference: In cases where a judicial interpretation of the Constitution is at odds with the actual document, it is the latter that deserves the allegiance of citizens and officeholders. Kasich is therefore wrong: The Constitution is “the law of the land,” not Roe. (You can look it up in the Constitution’s sixth article.)

The strongest argument for judicial supremacy is not that the Constitution commands it. It’s that government cannot work, or work well, if every question of constitutional meaning is up for grabs and that there needs to be a final arbiter.

Abraham Lincoln gave due weight to each side in the course of his first inaugural address. He did not, he said, deny that the Supreme Court’s

decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions 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.

He would defer to the Supreme Court, to a point, but his deference would not be absolute. And so the Lincoln administration did not attempt to undo the Supreme Court’s decision with regard to the parties in Dred Scott v. Sandford but also refused to speak or act as though it were correct. It recognized that blacks could be citizens regardless of that decision, and granted passports and patents accordingly. Lincoln’s words are a great asset to the anti-supremacist side not only because of his moral and historical authority but because they are essentially unanswerable, encompassing as they do what is valid on both sides of the question.

RELATED: Judicial Supremacy Has Its Limits: The Court’s Decisions Are Not Binding on the Executive and Congressional Branches

Huckabee did not articulate a similarly balanced view, or offer a Lincolnian strategy for responding to the same-sex-marriage decision. Opponents of same-sex marriage have by and large declined to push state-government officials to deny marriage licenses to same-sex couples. In part this may be because so many people accept judicial supremacy; in part because even many opponents of same-sex marriage are not sufficiently adamant about their view to defy the Court; and in part because they do not think this tactic would succeed.

#share#Some conservatives have instead called for a constitutional amendment, either to define marriage in the law as the union of a man and a woman or to let states adopt that policy. Many conservatives have also sought legislation to protect freedom of conscience for people and groups that reject same-sex marriage. Both of these responses are in some sense in opposition to the Supreme Court’s ruling. They do not simply “move on” from marriage now that the Court has spoken, as Kasich and many others have suggested. But neither can these responses be said to defy the Supreme Court in any sense that poses even a potential concern about the rule of law.

Our anti–judicial supremacists are not, then, doing anything that judicial supremacists have any good reason to condemn. At the other end of the debate, too, the judicial supremacists refuse to rule out the practical courses of action that are open to anti-supremacists.

RELATED: Constitutional Remedies to a Lawless Supreme Court

What, for example, does it mean for someone like Kasich to “live with” Roe as “the law of the land,” or to “respect” it? It doesn’t mean that Kasich agrees with it, or accepts its permanence. A spokesman for him clarified that Kasich “hopes that Roe is overturned.” And maybe more than “hopes”: The last time Kasich ran for president, according to news reports from the time, he said he would nominate “anti-abortion” justices. Back then, he also said he favored a constitutional amendment to undo Roe. The governor’s respect for Roe as the law of the land has not precluded him from signing laws in tension with it, including a ban on abortions after 20 weeks. His behavior and his positions, in short, are indistinguishable from those of an elected official who does not respect Roe much at all and does not wish to live with it.

Even academics who are glad to see abortion treated as a constitutional right cannot generally bring themselves to defend the reasoning of Roe.

Kasich isn’t the first pro-life politician to speak confusingly of his respect for Roe. John Ashcroft had been a staunchly pro-life senator from Missouri, and in part for that reason he faced strong opposition when the Senate considered his nomination for attorney general in 2001. During the confirmation hearings, he tried to defuse the issue by saying that while he thought Roe, “as an original matter, was wrongly decided,” he would “enforce the law as it is, not as I would have it. I accept Roe and Casey as the settled law of the land. If confirmed as attorney general, I will follow the law in this area and in all other areas.”

No senator thought to ask him what it would mean for an attorney general to “enforce” or “follow” Roe, which provides no instructions to the Justice Department. Did it mean he would send U.S. marshals to deal with any state legislature that tried to prohibit abortion? Ashcroft also said during the hearings that he would not ask the Court to overturn Roe, but offered the rationale that it was unlikely to take up any such invitation. He would “follow” Roe in this way, in other words, because there was no point in trying not to follow it. He neither said nor implied that the administration of George H. W. Bush had been flouting “the law as it is” when it asked the Supreme Court to reverse Roe.

RELATED: Ayatollah Roberts and His Sharia Council

There are circumstances in which “obedience” to the Court, or belief in the Court’s supremacy, could make a practical difference. Thirteen years ago a federal appeals court ruled that it was unconstitutional for a public school to make students listen to the words “under God” in the Pledge of Allegiance. The Republican House voted to take away the federal courts’ jurisdiction to hear constitutional challenges to the recitation of the Pledge.

The House was acting pursuant to Article III of the Constitution. Its first section gives Congress the power to create the inferior courts, which implies a power to determine the scope and limits of their jurisdiction. Its second section gives Congress the power to make “Exceptions” and “Regulations” to the Supreme Court’s appellate jurisdiction. People who believe that it’s important for the courts to have the last say on the vast majority of questions of constitutional interpretation will resist reading those provisions of the Constitution to permit Congress to deny them that say.

#related#Even when arguments about judicial supremacy appear to have no practical import, however, they lie beneath judgments about how we should talk about judicial decisions. Kasich’s side of that argument pays rhetorical fealty to the Court: It may make mistakes, but it deserves respect even so. It is dangerous, people on that side often believe, not to give it that respect. Huckabee’s side insists that the greater danger would come from not denouncing certain rulings as illegitimate. These are the ones in which the Court gets the Constitution wrong in a deeper sense: It substitutes its own desires for the text, original understanding, and structure of the Constitution. In those cases, the Court is not really engaged in interpreting the Constitution at all.

That’s a tough charge. But it’s one that is also made by several of the dissenting justices in the marriage case. And Justice Anthony Kennedy’s majority opinion didn’t work very hard to make a constitutional argument for its conclusion — as even some strong supporters of the result have noted. The same is true of the Court’s abortion jurisprudence: Even academics who are glad to see abortion treated as a constitutional right cannot generally bring themselves to defend the reasoning of Roe.

When the Court makes an illegitimate ruling, those who recognize its illegitimacy may have to live with practical limits on their ability to undo it. If a ruling has earned no more respect than that, however, politicians and others should give not give it any — lest they make the very mistake against which Lincoln warned.

— Ramesh Ponnuru is a senior editor of National Review. This article originally appeared in the September 21, 2015, issue of National Review.

National Review magazine content is typically available only to paid subscribers. Due to the immediacy of this article, it has been made available to you for free. To enjoy the full complement of exceptional National Review magazine content, sign up for a subscription today. A special discounted rate is available for you here.

Ramesh Ponnuru — Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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