Judicial supremacy and its discontents.

• Author: Carpenter, Dale

[T]he federal judiciary is supreme in the exposition of the law of the Constitution.... (1) The decision [Brown v. Board of Education] tortured the Constitution--the South will torture the decision. (2) Will nobody defend judicial supremacy anymore? (3) The Supreme Court has made its grab for power. The question is: will we let them get away with it? (4) This is a remarkably quiet period in the public life of the Constitution. It is not a quiet time for constitutional law professors, of course, for whom there is always a crisis around the bend, a radical departure from fundamental values afoot, a usurpation of rights lurking. And there is certainly a lot of activity related to constitutional law, from the recent impeachment of President Clinton to judicial intervention in the election of 2000 to the creation of military tribunals to try suspected terrorists and enemy combatants.

It is a quiet period, however, in the sense that there is remarkably little public agitation about either the meaning of the Constitution or about the federal judiciary. Two hundred years after John Marshall set afloat the U.S.S. Judicial Review--over time slowly refitted and finally re-commissioned as the U.S.S. Judicial Supremacy--the sea is calm and the ship sails on.

Nearly every aspect of Marbury v. Madison (5) has been examined, praised, and criticized: the charged political and factual background of the decision, John Marshall's own participation in the events that led to it, the opinion's consideration of the merits before jurisdiction, its claim that for every right there must be a remedy, the assertion that the judiciary may issue orders to an executive official, Marshall's strained interpretation of Section 13 of the Judiciary Act of 1789, (6) his controversial reading of Article III, the conclusion that the federal judiciary may declare an act of a coordinate branch unconstitutional, the various arguments given for that power of judicial review, and many other aspects of the case. The spectrum of scholarly opinion ranges from those who have treated Marbury as a holy writ of American law, giving it pride of place as the first case reprinted in constitutional law textbooks, (7) to one scholar who views it as a relatively trivial pronouncement unworthy of the time necessary to explain it adequately in an introductory constitutional law course. (8)

But one modern legacy of Marbury has come recently to dominate scholarly debate above all others. In Cooper v. Aaron, one of the many cases involving defiance of the Supreme Court's declaration that public-school segregation is unconstitutional, the Court interpreted Marbury to establish not just judicial review but judicial supremacy, the doctrine that the Supreme Court has not just a word, but the final word, on the meaning of the Constitution. (9) Now a growing number of respected constitutional theorists, coming from a broad range of political and jurisprudential perspectives, have begun to question the legitimacy of judicial supremacy in constitutional interpretation. (10)

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives. My friend and colleague Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution for himself, is not obliged to adopt the Court's interpretation of the Constitution, and may even refuse to execute orders from the Court. (11) Professor Larry Kramer argues that the Rehnquist Court has transformed judicial supremacy into "judicial sovereignty," threatening to erase the idea of "popular constitutionalism" under which the people themselves are ultimately responsible for interpreting and implementing their Constitution. (12)

I will make the negative case that these critiques of judicial supremacy miss the mark. What I will not do here is make an affirmative case for judicial supremacy. Such an affirmative case could be made from the text, structure, and history of the Constitution, as well as from the repeated acquiescence of the coordinate branches to it and from simple prudence. My argument, especially as it relates to Paulsen's thesis, rests on the admittedly contestable premise that advocates for changing longstanding practices bear the burden of persuasion for changing them.

1. ALL QUIET ON THE POPULAR FRONT

   At the outset of this essay, I said there is "remarkably" little public agitation just now about the Constitution and the role of the federal courts in its interpretation because, when you think about it, there have been plausible grounds for public provocation. There has certainly been enough to rile citizens of a conservative political bent. The list of such incitements is very long but a short catalogue of the highlights will suffice. In just the past forty years, the federal courts, in the name of the Constitution and under the guise of interpreting it, have stricken teacher-led prayer from public schools, (13) required that children be bussed from neighborhood schools to schools across town, (14) allowed the proliferation of pornography in the public square, (15) shielded flag-burning, (16) and--most galling of all--sharply limited the power of the government to regulate abortion, (17) even to the point of striking down a statute that forbade the practice of late-term abortion. (18)

   There's also been plenty, especially in the past two decades of conservative judicial ascendancy, to anger citizens with a more politically liberal bent. So, the federal courts, again in the name of the Constitution and under the guise of interpreting it, struck down a state anti-discrimination law that sought to force the Boy Scouts to admit openly gay scoutmasters, (19) invalidated congressional attempts to deal with the problem of gun possession near schools (20) and violence against women, (21) have upheld many of the domestic-security measures taken in the aftermath of September 11, (22) and--most galling of all--halted the counting of votes in the 2000 election, ensuring that George W. Bush would be the next President of the United States. (23)

   Yet where are the mass protests? Why haven't elections over the past four decades been a series of referenda on federal judicial appointments? Where are the calls for impeaching Supreme Court justices? Why aren't the people--whether conservative or liberal or neither--as upset about all this objectionable judicial activity as are the academic participants in this and other symposia questioning the very basis for judicial supremacy?

   The people have not always been so quiet about the Constitution or about the Court's role in interpreting it. In fact, there has been at least some protest of many of the decisions listed above, especially the abortion decisions and the 2000 election decision. The abortion decisions continue to draw annual protests marches in Washington. But anti-Roe activists are no closer to having the decision reversed today than they were when Ronald Reagan took office and may be even further from their goal, thanks to the votes of several Republican appointees,. The 2000 election decision is largely forgotten, except by the most partisan political critics and frustrated academics, for whom it will always be 10 p.m. on December 12, 2000. But, as a Gallup poll determined on the eve of the decision, seventy-three percent of Americans were prepared to accept the Supreme Court's decision as a "legitimate outcome no matter which candidate it favors." (24)

   The limited eruptions of late against the federal judiciary are nothing compared to the widespread public agitation of some earlier times, when Supreme Court decisions engendered open defiance, by elected officials, legislatures, and state judges, and led to mass protests and riots in the streets. (25) Despite Roe, and Bush v. Gore, and all the other decisions of late that one or another constitutional theorist regards as a travesty, America is not in a state of constitutional crisis or even close to one. The public consistently holds the Supreme Court in high esteem. The Court is usually the most trusted of the three branches of the federal government--except when the country is at war or very close to one, at which point the President's stock temporarily rises above that of the other branches. (26)

   Also significant is the relative silence of the two politically accountable branches of the federal government. Members of Congress frequently criticize the Court's decisions and question the suspected political agendas of the Justices, but these criticisms almost never go to the legitimacy of judicial supremacy in constitutional interpretation. Congress is not passing flag-burning statutes in defiance of the Supreme Court, though such acts would have popular support. (27) It has not even acted recently to limit the Court's jurisdiction to hear certain matters, as it has in the past. Similarly, presidents--whether Democrat or Republican, whether or not serving with a Court favorable to them--have obeyed orders from the Court. Even Richard Nixon, perhaps the most zealous claimant to (and abuser of) executive authority in the country's history, backed down when faced with a direct order from the Court to produce audiotapes that incriminated him and led to his resignation. (28) There has been no plan to pack the Court by enlarging its membership; if one were offered, it would be seen as a dangerous and destabilizing power grab, just as Franklin Roosevelt's was.

   Then there is the relative silence of the...