Bench Memos

Law & the Courts

Pathetic Kowtowing to Myth of Judicial Supremacy

This would be hilarious if it weren’t so pathetic: Meg Penrose, a law professor at Texas A&M, has written an op-ed that reads like a parody of the most groveling and craven embrace of the myth of judicial supremacy.

Penrose claims that Marbury v. Madison gave the Supreme Court “the final, authoritative word on the United States Constitution.” Indeed, she contends that this “legal truism cannot be denied.” Well, Professor Penrose, you’re conflating the power of judicial review with the claim of judicial supremacy. Abraham Lincoln rejected your false claim about Marbury, and so do legal scholars across the ideological spectrum (see, e.g., Laurence Tribe: judicial supremacy “certainly isn’t implied by the power of judicial review as recognized in Marbury).

Penrose herself believes that Obergefell was wrongly decided: “I myself find no constitutional anchoring for the right to same-sex marriage”; “I, too, disagree with the majority’s decision. But somehow her misunderstanding of Marbury leads her to posit that “Our constitutional democracy requires all of us to give legal credence [whatever that means] to Supreme Court decisions,” and that “no citizen should deny the legitimacy of the decision.” (But if Obergefell has “no constitutional anchoring,” in what sense is it legitimate?)

Penrose particularly criticizes Chief Justice Roberts for “writing a dissenting opinion that discredits the majority’s authority, not just its reasoning,” in Obergefell and for thus “open[ing] the court to criticisms of judicial tyranny.” She evidently imagines that a chief justice has some special duty to propagate the myth of judicial supremacy. But the highest duty of the chief justice, like that of other justices, is to the actual Constitution, not to the Supreme Court’s mistaken understandings of it (which, contra Penrose’s assertions, are not the “law of the land”).  

Does Penrose really believe that Abraham Lincoln was obligated not to “deny the legitimacy” of Dred Scott? Or that Thurgood Marshall and other NAACP attorneys were obligated not to “deny the legitimacy” of Plessy v. Ferguson?

It is a sad thing that any American citizen would hold such a debased view of the rights and duties of her fellow citizens. But a law professor who teaches constitutional law? Beyond pathetic.

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