Bench Memos

Law & the Courts

Against Euphemistic Defenses of Judicial Supremacy

On the Volokh Conspiracy, Randy Barnett presents what he calls a “defense of judicial equality”—which turns out to be his euphemism for the judicial-supremacist claim that the president and Congress must abide by a federal judicial determination that a federal law is unconstitutional. A few comments:

1. Barnett contends that the term “judicial supremacy” is “a deliberately loaded pejorative term.” In fact, however, the term reflects the very usage of those who advocate the concept. When the Supreme Court first propounded the myth of judicial supremacy in Cooper v. Aaron in 1958, all nine justices jointly authored an opinion stating—falsely—that Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that the Court’s interpretations of the Constitution are “the supreme law of the land.” (Emphasis added.) I don’t see how anyone can object to “judicial supremacy” as a shorthand for this position, and I note that various defenders of judicial supremacy embrace the term.

2. Barnett says that he “agree[s] entirely with the ‘departmentalist’ vision identified by [Mike] Paulsen and Whelan that each constitutional actor has a duty to adhere to the written Constitution that is independent of the opinions of other constitutional actors.” But as I read him, his commitment to departmentalism protects only the president’s or Congress’s judgment that a law or bill is unconstitutional. It doesn’t extend to a president’s or Congress’s judgment that a law that a federal court has opined to be unconstitutional is in fact constitutionally permissible. That’s not the departmentalist understanding that Mike Paulsen, Matt Franck and I are defending.

3. Quoting extensively from one of his law-review articles, Barnett presents what he sees as originalist evidence in support of the proposition that the founding generation understood the “judicial Power” to include the power “to nullify or invalidate a law”—in other words, to wipe it out of existence such that there is nothing left of the law for the president or Congress to enforce.

But Barnett’s article pervasively conflates the power of judicial review with what he calls the power of “judicial nullification.” As I’ve made clear, the power of judicial review enables courts to decline to apply laws they deem to be unconstitutional. As Chief Justice Marshall stated in Marbury (emphasis added):

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.  So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Nothing in this narrow concept of judicial review means that a court, in declining to apply a law on the view that the law is unconstitutional, thereby wipes the law out of existence. The Founding Era evidence that Barnett offers is entirely compatible with the narrow concept of judicial review. So, yes, federal judges, in the course of deciding cases, “will declare [a law] to be void” (or, as Marshall puts it in Marbury, “entirely void”), “could declare an unconstitutional law void,” will “consider [unconstitutional laws] as null & void,” and so on. But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional.

4. I wasn’t expecting Barnett to join forces with Chief Justice Taney. But under Barnett’s view, Lincoln acted unconstitutionally in refusing to accept as binding Dred Scott’s holding that Congress could not bar slavery in the federal territories (and in signing into law a bill that defied that holding). 

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