Bench Memos

Law & the Courts

Confusion on Judicial Supremacy—Part 1

In two posts last week, I criticized Randy Barnett’s euphemistic defense of judicial supremacy. In a response on Friday, Barnett, as I see it, entirely failed to engage my criticisms even as he imagined that he was demolishing my position. On the premise that we must be talking past each other, I will try to clarify my position, and my understanding of Barnett’s position, in this post.

1. Barnett’s position, as I understand it, is that a judicial ruling that rests on a determination that a law is unconstitutional has the formal legal effect of nullifying the offending law—of wiping it out of existence so that there is nothing left of the law for other governmental officials to enforce. Barnett thus embraces, and attempts to justify, one of the core tenets of judicial supremacy: that other governmental actors are obligated to abide by a judicial determination that a law is unconstitutional.

2. Under my position against judicial supremacy, a Supreme Court ruling that rests on a determination that a law is unconstitutional instead has, as a general rule, the practical effect of nullifying the offending law, of preventing its continued enforcement. That practical legal effect flows from the reality that the ruling operates as governing precedent for the lower courts. So any governmental official who tried to enforce a law that the Supreme Court had deemed to be unconstitutional would ordinarily expect to face swift and certain defeat in court. In other words, although the Court’s ruling doesn’t require the governmental official not to continue to enforce the law, it would ordinarily be highly imprudent for the official to continue to enforce it. (That’s among the things I’ve had in mind when I’ve observed that the Court has significant institutional advantages in advancing and entrenching its mistaken readings of the Constitution.)

3. Because of this ordinary practical effect, it’s a reasonable shorthand to say (as I often have done) that the Supreme Court “invalidates” or “strikes down” (or, to use Barnett’s synonyms, “nullifies” or “voids”) laws when it deems them unconstitutional. Nothing in that shorthand speaks to the distinction between formal and practical legal effect.

4. Barnett’s posts, and his law-review article on which they draw, seem to me to be entirely blind to this distinction between formal and practical legal effect. Barnett’s article argues that what is conventionally called the power of judicial review is constitutionally justified. As I have made clear, I agree with that bottom line. But when Barnett recasts that power as the “power of judicial nullification,” he implicitly adopts the claim of formal judicial nullification.

5. So far as I can tell, not one iota of the evidence that Barnett adduces in support of his “power of judicial nullification” speaks to the distinction between formal and practical legal effect. Barnett doesn’t even contend otherwise (which isn’t surprising, as he is blind to the distinction).

To take Barnett’s supposed killer example in his response: Barnett imagines that Gouverneur Morris’s reference to a judicial “control over the legislature” somehow proves his position. But who disputes that the power of judicial review, with its practical effect on the operation of laws, can fairly be said to be “[a] control over the legislature”? Every single one of Barnett’s examples that I have had the patience to wade through (and I’ve started with what he regards as his strongest evidence) is entirely compatible with my understanding of the power of judicial review and with the practical legal effect that a Supreme Court determination that a law is unconstitutional ordinarily has. Any reader attentive to the distinction that I’ve highlighted in this post will readily discover that, so I won’t drag the reader through the tedium of addressing Barnett’s examples one by one.

In a follow-on post, I will further explain why I think that Barnett’s position is untenable.