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.

Most Popular

Film & TV

Why We Can’t Have Wakanda

SPOILERS AHEAD Black Panther is a really good movie that lives up to the hype in just about every way. Surely someone at Marvel Studios had an early doubt, reading the script and thinking: “Wait, we’re going to have hundreds of African warriors in brightly colored tribal garb, using ancient weapons, ... Read More
Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Science & Tech

Set NASA Free

The Trump administration has proposed shifting the International Space Station from a NASA-exclusive research facility to a semi-public, semi-private one. Its plan would nix all government funding for the ISS by 2025 and award at least $150 million per year to NASA to help with the transition. This would be a ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More