Bench Memos

Law & the Courts

On Originalism and Judicial Supremacy—Part 2

Just one further thought as a follow-up to my post on law professor Michael Ramsey’s defense of judicial supremacy:

Ramsey seems to argue that Lincoln’s actions in defiance of the Dred Scott ruling didn’t “truly challenge judicial supremacy as [Ramsey] would define it.”

According to Ramsey’s definition, when “there is a court decision finding a particular type of action unconstitutional,” the concept of judicial supremacy requires that non-judicial governmental officials “apply it [the court decision] to identically situated people who are not parties to the case.” By contrast, it does not require them to apply it “to somewhat analogous but arguably distinguishable circumstances (even where it’s fairly obvious that the Court would make the extension if it had the opportunity).”

I think that these two statements by Ramsey are an accurate partial account of what the concept of judicial supremacy requires and doesn’t require. My problem with them is that they fail to address a significant middle category: other instances in which the rule set forth by the Court clearly governs. Under the conventional understanding of judicial supremacy, other governmental actors are likewise required to abide by the Court’s rule in such instances. If Ramsey means to exclude this middle category from his definition, I don’t see how he can justify the exclusion.

When this middle category is recognized as part of the definition of judicial supremacy, then it is clear that Lincoln’s actions as president in the face of the Dred Scott ruling did indeed challenge judicial supremacy. As I’ve noted, in defiance of the dual holdings of Dred Scott, Lincoln signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens).

Ramsey may well be uncomfortable positioning himself with Roger Taney and Stephen Douglas on Dred Scott rather than with Lincoln, but that’s where his defense of judicial supremacy puts him.

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