Judicial supremacy and taking conflicting rights seriously.

Author:Brown, Rebecca L.
Position:Special Issue on Judicial Supremacy


The best arguments in favor of judicial supremacy rely on its essential role of protecting rights in a democracy. The doctrinal technique of strict scrutiny, developed to do the work of judicial supremacy, has been an important tool in our constitutional jurisprudence in the service of rights protection. When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach. Rather, the Court should consider very carefully the rights claims in favor of the statute as well as those launched by a challenger. In such cases of conflicting rights, the Court has not taken seriously enough the obligation that justifies judicial supremacy, taking rights seriously.


Judicial supremacy is more an attitude than a principle. At the end of the day, there is little space between the natural consequences of judicial review and a system of judicial supremacy, defined as "the obligation of coordinate officials not only to obey [a judicial] ruling but to follow its reasoning in future deliberations." (1) Although judicial supremacy posits deference by other government actors to judicial interpretations even when they think that courts are wrong, (2) the actual impact of any such disagreement is quite small. If the other branch is a party to a case, then the court's interpretation of the Constitution will necessarily prevail over that of any other branch of government. (3) For areas of constitutional meaning that are not potential cases, then even rhetorical hyperbole on behalf of courts' primacy would be tempered by the incapacity of federal courts to give advisory opinions, (4) so that most disagreements over meaning on matters not subject to judicial review would be largely hypothetical.

It is often said that the Court indulged in the great hubris of judicial supremacy in Cooper v. Aaron, but it is important to distinguish what the Court said in Cooper from what it did. (5) In Cooper, often touted as the high watermark of judicial supremacy, (6) the Court made some bold statements suggesting that the Constitution means only what the Court says it means. (7) But consider what the Court did. A party to the case was seeking relief from a federal court's order to desegregate on the ground that the State of Arkansas had interfered with its ability to comply; (8) it is hard to see any choice for the Court other than to rule against the legitimacy of the State's effort to undermine a court order issued to vindicate an individual right of injured plaintiffs. The Governor of Arkansas was not rebuked for merely articulating disagreement with a court in the abstract, but for claiming the power to disrupt fulfillment of a court's decree. (9) The Court did indulge in some far-reaching language, displaying an attitude which has been the subject of a great deal of criticism. (10) But keeping in mind that such language, coupled with the unique symbolic act of all nine Justices claiming authorship of the opinion, (11) was all the Court had to respond to an assault of words and violence on its authority to decide cases within its own sphere, the decision itself is surprisingly unremarkable. As Cooper demonstrates, attitude has played a significant role in the story of judicial supremacy.

The question then is why there has been so much debate about a concept of judicial supremacy that, in its most formalistic sense, has little impact on courts' legitimacy in deciding cases before them and applying their view of the law as precedent. There are other facets of the phenomenon of judicial supremacy that regard its rhetorical and political force within the government, (12) but with regard to the legal impact of judicial supremacy, I claim that the major complaints are not actually about courts having the final word at all. Although there are a few who would go so far as to take the Constitution away from the courts, (13) many concerns about judicial supremacy are more readily understood as concerns about whether the Supreme Court has interpreted the Constitution correctly in specific cases.

Part of the legal doctrine that contributes to judicial supremacy is the body of law in which the Court decides how much deference to give to other potential decision makers. I take some of the most strident attacks on judicial supremacy to be criticizing that body of law, suggesting that the Court should read the Constitution in ways that show more respect for the work of the other branches of government when there is a choice to be made in how to exercise its final interpretative authority. (14) That is why I consider judicial supremacy to be more a question of attitude than of principle. The mistake that the Court is accused of making is not necessarily a matter of legal obligation, but more of prudence--in failing to recognize appropriately the judiciary's place as one of three branches, as a part of a federal system, and as a fiduciary of public trust in interpreting a document that has strong populist roots and significant consequences for the people. By resolving constitutional disputes without due recognition to its own institutional limitations, the Court succumbs to the sin of supremacy. A sense of institutional role underlies, explicitly or implicitly, much of constitutional doctrine, but there is a legitimate concern that the Court has lost a sense of how doctrine should take account of different voices in the Republic. (15)

For example, Larry Kramer launched a broad-based historical attack on judicial supremacy that called the entire edifice of judicial review as we know it into question on the basis that it undervalues the role of popular constitutionalism in the implementation of our fundamental commitments. (16) But even in mounting so profound an external challenge to our judicial system, Kramer also devotes considerable effort to making an internal attack on specific cases in which the Rehnquist Court read the Constitution wrong in ways that "squeeze[d] 'the people' out of the Constitution." (17) A prime target of Kramer's attack was the Court's decision in Bush v. Gore, for undertaking judicial review of a matter that should have been left to Congress. (18) Kramer complained that "any notion that what the Constitution does or permits might best be left for the people to resolve using the ordinary devices available to express their will seems beyond the Rehnquist Court's compass.... This is judicial sovereignty." (19)

Framed this way, the problem of judicial supremacy is doctrinal, not structural. It can be solved by persuading courts to change their attitude. The problem, indeed, can be solved without sacrificing judicial supremacy or even compromising it, because a doctrinal solution does not challenge the Court's power to do the job of judicial review; rather, it tells the Court how to do that job. To the extent there are valid arguments raised in opposition to judicial supremacy, (20) some of them can be addressed within the system of robust judicial review itself. The frame of judicial overreaching that has animated the debates about judicial supremacy can, indeed, provide new appreciation to the values for which judicial review exists in the first place: the protection of a broad array of constitutional values and, more specifically, the protection of individual rights.

One particular place where judicial analysis could benefit from this kind of attitude shift toward humility is in cases where the Court considers a constitutional rights claim leveled against a statute that itself seeks to create or expand rights. I will explore in this Article how the rationales underlying judicial supremacy, as well as some of the attacks on it, should affect the contours of judicial decisions about the Constitution's meaning in the case of a conflict of rights. The best rationale for judicial supremacy is that it protects rights; when the Court uses its power of review to strike down rights-protecting legislation in the name of a conflicting individual right, therefore, it should give due regard to the possibility that rights claims can reasonably be made on both sides of the dispute. Thus, the use of strict judicial scrutiny--developed to advantage rights claims when threatened by a law without rights-affirming goals--is inappropriate in this situation. The use of strict scrutiny under these circumstances gives inadequate deference to the legislative effort to further constitutional values and to the popular understanding of rights that such legislation represents. It thus exacerbates the deficiencies of judicial supremacy and compromises the principal justification supporting the Court's power to decide the case in the first place.

This Article will draw on the very powerful arguments leveled by Jeremy Waldron against judicial review as a way to consider how review of conflicting rights can be improved to further the underlying benefits and advantages of judicial review. Instead of reflexively employing strict scrutiny to assess all rights claims, the Court should develop an approach that gives more consideration to state interests that may be furthered by a rights-protecting law. By taking seriously the reasonable disagreements that legislatures acting in good faith may have about what the constitutional values of liberty and equality require, the Supreme Court will further the goals of judicial supremacy and mitigate its costs.


    The strongest argument for judicial supremacy is that it is a good way to preserve or promote rights and protect the politically powerless. (21) Judicial review promises "[a] good decision and a process in which claims of rights are...

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