Judicial Supremacy

• Author: Walter F. Murphy
• Pages: 1487-1488

Page 1487

Stripped of the partisan rhetoric that usually surrounds important decisions of the Supreme Court, debate about judicial supremacy raises a fundamental question: Who is the final, authoritative interpreter of the Constitution? The response of judicial supremacy is that courts perform that function and other officials are bound not only to respect judges' decisions in particular cases but also, in formulating future public policy, to follow the general principles judges have laid down.

JUDICIAL REVIEW does not necessarily entail or logically imply judicial supremacy. One can, as THOMAS JEFFERSON did, concede the legitimacy of courts' refusing on constitutional grounds to enforce statutes and EXECUTIVE ORDERS and still deny either that officials of a coordinate branch must obey a decision or follow its rationale in the future. This view, called "departmentalism," sees the three branches of the national government as equal in CONSTITUTIONAL INTERPRETATION. Each department has authority to interpret the Constitution for itself, but its interpretations do not bind the other two.

There are other possible answers to the basic question: Congress, the President, the states, or the people. A claim for the states presupposes the Constitution to be a compact among sovereign entities who reserved to themselves authority to construe their obligations. Such was Jefferson's assertion in the KENTUCKY RESOLUTIONS (1798), and it echoed down decades of dreary debates on NULLIFICATION and SECESSION. The CIVIL WAR settled the matter, though some southern states briefly tried to resurrect nullification to oppose BROWN V. BOARD OF EDUCATION (1954).

A claim for the President as the ultimate, authoritative interpreter smacks too much of royalty for the idea to have been seriously maintained. On the other hand, Presidents have frequently and effectively defended their independent authority to interpret the Constitution for the executive department.

A case for the people as the final, authoritative interpreter permeates the debate. American government rests on popular consent. The people can elect officials to amend the Constitution or create a new constitution and so shape basic political arrangements as well as concrete public policies. Jefferson advocated constitutional conventions as a means of popular judging between conflicting departmental interpretations.

Although even JAMES MADISON rejected Jefferson's solution, indirect appeals to the people as the ultimate interpreters are reflected in claims to the supremacy...