In defense of judicial supremacy.

• Author: Chemerinsky, Erwin
• Position: Special Issue on Judicial Supremacy

ABSTRACT

"Judicial supremacy" is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions--such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine--are misguided and should be abandoned.

TABLE OF CONTENTS INTRODUCTION I. WHY THE JUDICIARY? II. IMPLICATIONS A. The Standing Doctrine B. The Political Question Doctrine 1. The Guarantee Clause 2. Gerrymandering C. The State Secrets Doctrine III. TOO MUCH POWER IN THE FEDERAL COURTS? CONCLUSION INTRODUCTION

Marbury v. Madison got it right. Chief Justice John Marshall explained that the Constitution exists to impose limits on government powers, and these limits are meaningless unless subject to judicial enforcement. (1) Borrowing from Alexander Hamilton's Federalist No. 78, Chief Justice Marshall wrote: "The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." (2) And, he went on in perhaps the most frequently quoted words of the opinion: "It is emphatically the province and duty of the judicial department to say what the law is." (3) In other words, the Constitution depends on having judges with the power to enforce it.

Marshall got it exactly right, and that is why Marbury v. Madison has been a cornerstone of American government for almost its entire history. The Constitution exists to limit government, and the limits are meaningful only if someone or something enforces them. Enforcement often will not happen without the judiciary.

My thesis is that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is what I define as "judicial supremacy." (4) In this paper, I defend this role for the judiciary and then sketch some implications from it. (5) In Part I, I explain why the judiciary should be the authoritative interpreter of the Constitution. In Part II, I draw implications from this and argue that doctrines that keep the Court from enforcing the Constitution are misguided and should be abolished. In Part III, I respond to likely criticisms of my defense of judicial supremacy.

1. WHY THE JUDICIARY?

   Of course, federal courts are not the only judicial institution that enforces the Constitution. State courts also can and do enforce the Constitution. (6) But this in no way diminishes the importance of the federal courts doing so. State courts often have no authority over federal officers or the federal government. For example, the law firmly establishes that state courts cannot grant habeas corpus to federal prisoners. (7) Nor would it make sense to have state courts resolve issues of federal separation of powers, such as when a dispute arises between Congress and the President. To pick a recent example, it would have been unrealistic to expect a state court to decide the constitutionality of a federal law requiring that the State Department allow the parents of children born in Jerusalem to have their passports indicate "Israel" as their birthplaces. (8) In situations like this, when there is a constitutional impasse between the other branches of the federal government, the federal courts must act as the umpire. Also, many of the doctrines that keep federal courts from enforcing the Constitution--such as the limits on suing government entities and government officers--apply just the same way in the state courts. (9)

   Nor can we rely on voluntary compliance from the other branches and levels of government. (10) Far too often, legislators and officials have a strong incentive not to comply with the Constitution. (11) These situations, which often involve the most vulnerable in society, are where the federal judiciary is needed most. (12)

   Most dramatically, those without political power have nowhere to turn except the judiciary for the protection of their constitutional rights. (13) The reality is that participants in the political process have little incentive to be responsive to the constitutional rights of prisoners, criminal defendants, or those who are not citizens. (14) These individuals lack political power--they do not give money to political candidates; they are generally prohibited from voting; and they are unpopular and often unsympathetic. (15) When is the last time a legislature acted to expand the rights of prisoners or criminal defendants? In the competition for scarce dollars, legislatures have every political incentive to spend as little as possible on prisoners. Politicians compete to sound tough on crime, not to expand defendants' rights. (16) Yet how much worse might it be if politicians and prison officials knew that no court would review the constitutionality of their actions? Admittedly, the Supreme Court has a less than stellar record of protecting these individuals' rights, but there is no doubt that judicial review has provided protections for criminal defendants and dramatically improved conditions for countless prison inmates whom the political process abandoned. (17) Although these are obvious examples, the nature of democracy is that the elected branches of government are often insensitive to the rights of those who lack political influence. (18)

   More generally, if not for the federal courts, what is to stop Congress or the President from enacting a law that is unconstitutional but politically expedient? What, other than the drastic remedy of impeachment, is to stop the President from pursuing unconstitutional policies when they are politically popular? Often there is no one--other than the courts--to deter wrongdoing and compensate those injured by constitutional violations. (19)

   This view of the federal judiciary inevitably derives from the purpose of the Constitution itself. My agreement with Marbury v. Madison is ultimately based on my belief that the written Constitution exists to be the supreme law of the land and to limit what everyone in government, at all levels, can do. (20)

   Harvard Law Professor Laurence Tribe powerfully asked "why a nation that rests legality on the consent of the governed would choose to constitute its political life in terms of commitments to an original agreement--made by the people, binding on their children, and deliberately structured so as to be difficult to change." (21) It is hardly original or profound to answer this question by observing that the Framers deliberately made the Constitution very difficult to change as a way of preventing tyranny of the majority and protecting the rights of the minority from oppression by social majorities. (22) If the structure of government had been placed in a statute, then the urge to create dictatorial powers in times of crisis might be irresistable. If only statutes protected individual liberties, then a tyrannical government could overrule them. If terms of office were specified in a statute rather than in the Constitution, then those in power could alter the rules to remain in office. (23)

   Thus, the Constitution represents society's attempt to tie its own hands--to limit its ability to fall prey to weaknesses that might harm or undermine its most cherished values. History teaches that under the passions of the moment, people may sacrifice even the most basic principles of liberty and justice. (24) The Constitution is society's attempt to protect itself from itself. It enumerates basic values--regular elections, separation of powers, individual rights, equality--and makes departure very difficult. In large part, the decision to be governed by the Constitution was animated by fear that a political majority could gain control of government and disenfranchise and perhaps persecute the minority. (25) Compared to all other laws, the Constitution is uniquely difficult to amend or alter, precisely to ensure that the limits it sets are not easily changed. (26)

   Accordingly, in deciding who should be the authoritative interpreter of the Constitution, the answer is the branch of government that can best enforce the Constitution's limits against the desires of political majorities. By this criterion, the federal judiciary is the obvious choice. It is the institution most insulated from political pressures. (27) Article III of the Constitution provides that federal court judges have life tenure unless impeached and that their salary may not be decreased during their terms of office. (28) Unlike legislators or the President, they never face reelection. (29)

   Furthermore, the method of federal judicial selection reinforces its antimajoritarian character. Unlike the House of Representatives, whose members are elected at the same time, or the Senate, where one-third of the members are chosen in each election, the President appoints the Court's members one at a time, as vacancies arise. (30) Generally, no single administration is able to appoint a majority of the Court or the federal judiciary. The result is that the Court reflects many political views, not just the one that dominates at a particular time.

   Other reasons exist, too, why the judiciary is the branch of government that is best suited to enforce the Constitution and should be deemed its authoritative interpreter. First, the judiciary is the only institution obligated to hear the complaints of a single person. For the most part, the federal judiciary's jurisdiction is mandatory. Although the Supreme...