Bench Memos

What’s That About Judicial Supremacy?

I commend Suneal Bedi and William C. Marra for their zealous defense (in an NRO article today) of the freedom of speech.  I am even with them most of the way on their favorable comparison of America to England on this score (although I think last March’s Supreme Court decision in the Westboro Baptist case, Snyder v. Phelps, was very badly wrong).

But while it is all well and good to celebrate our First Amendment, and to sing the praises of a Supreme Court that can vindicate it, I cannot think where Bedi and Marra got ideas like the following:

America has a system of judicial review and judicial supremacy, meaning federal courts may strike down laws they believe are unconstitutional, and the executive and legislative branches must follow the courts’ judgments. . . .

By giving courts, rather than the legislature, the final word on the freedom of speech, America provides more robust structural protections . . .

Newt Gingrich has proposed scrapping our system of judicial supremacy and stripping the Supreme Court of its status as final arbiter of the Constitution. Gingrich would not adopt the British model and make the legislature supreme; instead, he would make the three branches co-equal interpreters of the Constitution, and he would empower the executive and legislative branches to ignore court decisions with which they disagree. . . .

Even someone who does not applaud Gingrich’s ideas for what to do about a judiciary run amok–and I certainly do not applaud them–can dissent from Bedi and Marra’s characterization of the constitutional order made by the founding generation.  And even adopting the historically dubious language of “judicial review” to describe the power that is on offer in the Federalist, or Marbury v. Madison, or Joseph Story’s Commentaries, it is still a long, long way from “judicial supremacy,” the proposition that the judiciary has “the final word” or is the “final arbiter” of the meaning of the Constitution.  None of these sources from the founding and the early republic advanced such a proposition.

The view that under certain circumstances the constitutional opinions of the Supreme Court can be disregarded by the officeholders in the other two branches of the federal government is so far from being some strange Newt-onian innovation that it has been held by Thomas Jefferson, James Madison, Andrew Jackson, and perhaps most famously by Abraham Lincoln, who rightly ignored Dred Scott and Ex parte Merryman.  In our own day this view has been resuscitated by widely read books by scholars such as Robert Lowry Clinton and Larry Kramer, among others.

Newt’s ideas about what to do about the pretensions of judicial supremacy are quite bad enough.  But they are not as bad as Bedi and Marra say.  While Gingrich is wrong about the remedy, he is still quite right about the diagnosis.


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