Bench Memos

Law & the Courts

‘Executive Supremacy’?

On the Originalism blog, law professor Michael Ramsey suggests that the “strong form” of my position against judicial supremacy “really amounts to executive supremacy.” No, it doesn’t.

Ramsey presents various hypothetical scenarios in which the president will effectively have the final say. I’m happy to stipulate that my position would in theory* allow for such scenarios. But my position also allows for countless scenarios in which the Supreme Court will effectively have the final say, as my post on the practical effect of Supreme Court rulings illustrates. (The practical effect is, of course, far broader than what I discussed in that post, as the precedential effect of a Court ruling within the judicial hierarchy extends beyond any particular law that the Court deems to be unconstitutional.)

The myth of judicial supremacy holds that other governmental actors are constitutionally obligated to abide by the Court’s constitutional interpretations. Just as it’s not judicial supremacy when the Court effectively has the last word, it’s not executive supremacy when the president does. In Ramsey’s examples, no one would contend that the president’s constitutional interpretations are formally binding on other governmental actors.

* I’m of course fine on the argumentative practice of using extreme hypotheticals to establish a principle (such as Mike Paulsen’s “treasonous hypothetical” at the end of his long post against judicial supremacy). That’s the proper use that Ramsey makes of his hypotheticals. (The problem is that he misidentifies the principle that his hypotheticals establish.) No one should misread me as agreeing that my approach might plausibly lead, in the real world, to the results in his hypotheticals. 

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