Magazine | May 17, 2010, Issue

Supreme Arrogation

The Constitution is too important to leave to judges

The Supreme Court has for decades claimed to be the final arbiter of the meaning of the Constitution — asserting a “judicial supremacist” understanding of the Constitution’s distribution of interpretive authority among the institutions of government. This claim does not represent the predominant view of the Framers, and it has been contested by leading statesmen since the founding era. James Madison, Thomas Jefferson, Andrew Jackson, and Abraham Lincoln are among the presidents who asserted the coequal authority of the political branches to interpret the Constitution, a position known as “departmentalism.”

The growing acceptance of judicial supremacy in the modern era has made it much harder for the political branches to check the Court effectively when it exceeds its authority. A few years after the Supreme Court wrongly held, in 1857, that a congressional prohibition of slavery in the federal territories was unconstitutional, in its infamous Dred Scott decision, the departmentalist Lincoln administration and Republican Congress responded by enacting an even broader prohibition of slavery as an exercise of their independent authority to interpret the Constitution. The political branches, in effect, dared the Court to declare this new legislation invalid, as it had the old — and the Court declined to do so. Today, the political branches are unlikely to assert such robust interpretive authority. They limit themselves to reproving the Court for its wayward decisions and hoping that the appointment of new justices may lead the Court to correct itself.

Even so, the most insidious effect of judicial supremacy’s ascendance is not the way it forecloses methods of checking judicial power, but rather the way it obscures the most important reason the political branches have for exercising such checks: defending the Constitution from the Supreme Court. When the Court in its activist decisions usurps the legislative authority to make public policy, it not only misinterprets the Constitution, it violates the Constitution’s basic structural principles and contravenes the limits the Constitution places on the judicial branch.

There should be no doubt that the Court is constrained by a wide variety of constitutional limits, just as the political branches are. These constraints apply to the Court’s exercise of original jurisdiction, the scope of its subject-matter jurisdiction, its authority to create federal civil and criminal common law, and its power to hear citizen suits against sovereign states. The Constitution also prohibits the Court from issuing advisory opinions — it limits the Court to resolving only true “cases” or “controversies” involving adverse parties. This last constraint implicates the constitutional dimensions of such justiciability doctrines as standing, ripeness, and mootness.

The Supreme Court recognizes these constitutional limits on its power and generally adheres to its understanding of them. Notably, even Marbury v. Madison was a case, most fundamentally, about the constitutional limits that Article III places on the Court’s authority. The congressional enactment purporting to confer on the Court a power to issue writs of mandamus in cases of original (as opposed to appellate) jurisdiction was declared unconstitutional in Marbury precisely because, in the Court’s view, it would have violated Article III for the Court to exercise original jurisdiction in such cases.

Moreover, there is good reason to believe that the Constitution places implied limits — deriving from its basic structures — on the Court’s interpretive authority: As a matter of constitutional design, the exercise of judicial power must not conflict with the rightful exercise of authority by other institutions of government. In particular, traditional understandings of the Constitution’s design for government emphasize a sharp separation of powers among the three branches, a broad expanse of reserved power for the 50 states, and wide political discretion in policymaking for democratically representative institutions.

#page#In order to avoid usurping the authority of other institutions of government, judicial power must be exercised in a traditionally restrained fashion, with the Court grounding its decisions firmly in constitutional text, history, and tradition. Thus the Supreme Court’s exercise of an expansive or activist power to invalidate laws on controversial policy grounds is properly seen as an arrogation of governmental power in violation of the basic structures of the Constitution. As Justice Black observed in his celebrated dissent in Griswold v. Connecticut:

There is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional . . . amount[s] to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.

The practice of judicial supremacy tends to obscure the fact that the Court violates the Constitution when it exercises expansive judicial power. This is so because the Court’s widely accepted role as ultimate interpreter of the Constitution clouds the constitutional status of constraints on the Court’s power. Seen through the distorting prism of judicial supremacy, debates about the proper scope of judicial authority under the Constitution proceed as if the question were one of judicial authority over the Constitution — the exercise, in effect, of a “supraconstitutional” judicial power to constitute and reconstitute the substance of the Constitution subject only to perceived political constraints such as respect for the democratic process or the conventions of legal argument.

There are two related reasons for this distortion. First, the Court’s claim of interpretive supremacy can easily lead one to assume that the Court is the supreme arbiter of its own authority. The judicial supremacist imagines that the Court, simply by issuing a decision, implicitly affirms the constitutionality of its actions, thereby resolving in its favor the question of whether its decision violates the Constitution. Judicial actors, then, are free to decide whether to interpret the Constitution in a traditional legal fashion or to “interpret” it in an activist manner so as to invade the authority of legislatures. On this view, the Court’s exercise of judicial power is inherently self-authorizing: The only constitutional constraints on courts are those that the judicial branch itself articulates and accepts. Significantly, this perspective directs our attention away from a serious discussion of the Constitution’s limits on the judiciary by suggesting that any issue of constitutional limits is to be resolved exclusively by judges.

#page#Second, the judicial-supremacist view casts the Court as the institutional protector of the Constitution and other governmental actors as potential violators of it. This conception of the judiciary’s role is self-reinforcing (and misleadingly so), because the combination of the Court’s privileged position over political actors and its institutional self-interest in expanding its power leads it systematically to ignore its own constitutional violations and exaggerate the violations of other political actors. Indeed, when the Court seizes policymaking authority from legislatures, in violation of the Constitution, it articulates its violation as a supremacist vindication of the Constitution — as the judicial invalidation of allegedly unconstitutional legislative action. Thus the judicial-supremacist perspective directs our attention away from the constitutional limits on judicial power and toward the constitutional limits on everyone else.

In short, the lens of judicial supremacy keeps judicial constitutional violations out of focus.

These points explain how the practice of judicial supremacy has distorted our legal intuitions, but they present no substantive legal obstacle to recognition of judicial constitutional violations. As discussed, the Constitution plainly limits the Supreme Court’s power, and the Court’s exercise of expansive judicial power violates the traditional understanding of the Constitution’s structures. Moreover, as a matter of both constitutional supremacy and checks and balances, no institution of government should be thought to have the power unilaterally to “authorize” its actions if they violate the Constitution. In our system of government, it is the Constitution itself, not the Court, that establishes the supreme law of the land.

Even so, the subtle influences of judicial-supremacist thought continue to pervade constitutional debate today. Too often, even advocates of judicial restraint understate their objections to judicial activism, using the soft and imprecise rhetoric of “imprudence” and “illegitimacy.” But the Court’s activist rulings in such decisions as Lochner v. New York and Roe v. Wade are not merely extravagant exercises of judicial power or dubious ascriptions of constitutional meaning out of step with traditional standards of constitutional interpretation. Such decisions usurp legislative power in violation of the fundamental structures of the Constitution. The central objection to such actions by the Court is that they violate the Constitution.

Proper articulation of judicial activism’s constitutional infirmities is a necessary precondition of building political support for defending the Constitution from the Court. The political branches have the ultimate power and responsibility to resist unconstitutional judicial encroachments on federal and state legislative authority. Just as war is too important to be left solely to generals, the Constitution is too important to be left solely to judges. That was the belief of the founding generation, and time has proven them right.

–Mr. Nowlin is an associate professor of law at the University of Mississippi School of Law. 

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