Bench Memos

Questioning the Eminent Tribunal

Earlier this month, the Supreme Court opened what promises to be a term of exceptional significance. It is widely expected that the Court will consider the constitutionality of the recently enacted health-care-reform law, and it may examine laws that define marriage as the union of one man and one woman. But as litigants battle each other at the lectern, outside the Court there will be an ongoing struggle of far greater significance: a fight over whether the decisions of the Court are the final word on the meaning of the Constitution.

The most dramatic challenge to the Supreme Court’s authority as the ultimate constitutional interpreter has come from former speaker of the House Newt Gingrich, who gave a speech at the Values Voters Summit on October 7 asserting that the constitutional judgments of the president and Congress are entitled to as much respect as the Court’s. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning, going so far as to ignore a Court decision if he strongly believed that the Court’s judgment was contrary to the true meaning of the Constitution on an important issue.

Gingrich’s speech has caused a great deal of consternation among those accustomed to thinking of the Court as having the final word on the Constitution’s meaning, a doctrine known as judicial supremacy. The New York Times, happy to beg the question, declared as reported fact that Marbury v. Madison “gave the Supreme Court the last word in interpreting the Constitution.” Think Progress’s Ian Millhiser was absolutely apoplectic, hurling accusations and assertions that, unfortunately, only served to demonstrate his embarrassing ignorance of constitutional history and basic legal concepts. The upshot is that Millhiser believes Gingrich’s argument is “obviously not a view that’s compatible with the rule of law. It deserves nothing more than scorn.”

Such reactions are to be expected. The idea of judicial supremacy is so entrenched in the popular mind that Nancy Pelosi once described a decision of the Supreme Court as being “almost as if God has spoken.” This explains why, when Rep. Michele Bachmann declared that the health-care-reform statute is unconstitutional at a GOP debate in August, Calvin Woodward of the Huffington Post was quick to point out what he saw as the rather obvious “fact” that “nothing is unconstitutional until courts declare it to be so.”

Curiously, no such “fact” appears anywhere in the Constitution. Indeed, the idea that the Supreme Court should be the last voice on constitutional meaning has been contested throughout American history. Thomas Jefferson called the idea of judicial supremacy “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Andrew Jackson famously vetoed a bill reauthorizing the Bank of the United States on the grounds that it was unconstitutional, even though the Supreme Court had declared the Bank constitutionally sound in the case of McCulloch v. Maryland.

But the most striking example is undoubtedly that of Abraham Lincoln, who issued passports to free black citizens in contravention of the Court’s ruling in Dred Scott v. Sandford. It was Lincoln who, delivering his first inaugural address under the cloud of Dred Scott, warned that if the meaning of the Constitution was “irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

This long history of challenges to judicial supremacy has been well documented by scholars like Dean Larry Kramer of Stanford Law School and Keith Whittington of Princeton University. Yet, this election season marks the first time since Attorney General Edwin Meese’s 1986 Bicentennial Lecture that major political figures are challenging the Court’s authority over the Constitution. Gingrich is the not the only candidate to have done so. In a recent radio interview, Bachmann maintained that the health-care law must be repealed as unconstitutional even though the Court is very likely to consider the matter this term.

Perhaps, then, the political branches are moving beyond what Harvard Law professor Mark Tushnet calls the “judicial overhang,” the idea that politicians “may define their jobs as excluding consideration of the Constitution precisely because the courts are there.” If that is the case, the question that naturally arises is this: How should the political branches interpret the Constitution? This is the heart of the matter. If the political branches have nothing thoughtful to say about how to interpret the Constitution, then why should Americans reject judicial supremacy and entrust politicians with an equal say over the meaning of that revered text?

Gingrich suggests that originalism be the constitutional theory adopted by the political branches, an idea first voiced Sen. Mike Lee (R., Utah) in a speech to the 2010 Federalist Society National Lawyers Convention, when he pledged that he would “not vote for a single piece of legislation that I can’t reconcile with the text and the original understanding of the U.S. Constitution.” Comments from other Republican presidential candidates reflect a similar respect for the original meaning of the Constitution.

The turn toward originalism by leaders of the political branches is even more remarkable than the recent challenges to judicial supremacy. Although Attorney General Meese publicly advocated originalism during the Reagan administration, it has been a rare politician who has been willing to proclaim a rigorous theory of constitutional interpretation. Originalism, with its potentially revolutionary implications for constitutional law, could incur real political liabilities for a member of the political branches, assuming the leader actually adheres to the original meaning. A great many of these liabilities can be alleviated by “adulterat[ing]” one’s theory of originalism with a respect for precedent, as Justice Antonin Scalia once put it, but the burden is on political leaders who embrace originalism to articulate in more detail how they would apply this view to the constitutional judgments they will make on a regular basis.

Whatever the outcome of this national discussion, it promises to shift debates over proper constitutional interpretation from the Court’s august chamber to the halls of Congress, and from under the careworn gaze of Moses in the frieze to the stern eyes of Clay in Statuary Hall. Judicial supremacy is under attack, even as the work of “that eminent tribunal” goes on.

— Joel Alicea is a student at Harvard Law School.

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