Judicial supremacy revisited: independent constitutional authority in American constitutional law and practice.

• Author: Ghaber, Mark A.
• Position: Special Issue on Judicial Supremacy

ABSTRACT

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority by persons other than Supreme Court Justices. Inflated claims about the role of the Supreme Court in American constitutional politics ignore significant institutional, legal, and political constraints on judicial power, conflate the judicial power to have the final say over the meaning of constitutional provisions with the judicial power to settle constitutional controversies at particular times and places, and confuse independent constitutional authority with nullification.

Table of Contents INTRODUCTION I. CONSTITUTIONAL AUTHORITY OVER LAW A. Political Questions B. Reasonable Doubt and Good Faith Rules 1. The Rule of Reasonable Doubt 2. Good Faith Mistakes 3. Unreasonable Mistakes? II. INDEPENDENT AUTHORITY TO REJECT SUPREME COURT DECISIONS INTERPRETING THE CONSTITUTION III. JURISDICTION IV. SETTLEMENTS AND ACCESS TO JUSTICE V. THE REASONS WHY CONCLUSION INTRODUCTION

Proponents and opponents of judicial supremacy routinely assume that the Supreme Court settles (almost) all constitutional controversies that excite Americans. Law professors and students of public law ritually chant Tocqueville's catechism that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (1) Participants in the debate over the proper allocation of constitutional authority dispute whether an imperial judiciary with the power to resolve (almost) all constitutional disputes is desirable, but not whether the United States actually has an imperial judiciary with the power to resolve (almost) all constitutional disputes. Professor Larry Kramer, a proponent of popular constitutionalism, complains that "everyone nowadays seems willing to accept the [Supreme] Court's word as final ... regardless of the issue, regardless of what the Justices say, and regardless of the Court's political complexion." (2) Professor Ronald Dworkin, a more enthusiastic proponent of judicial supremacy, maintained that "practice has now settled" that "courts should take final authority to interpret the Constitution." (3) Claims of a "judicial monopoly on constitutional interpretation" (4) find substantial historical support in Professor Keith Whittington's study of American constitutional development. (5) He concludes, "institutional and coalitional pressures that push political actors to turn to the Court for constitutional leadership have become more pervasive over the course of American history. Political leaders have found increasing reason to support the Court, and decreasing capacity to resist the Court, over time." (6)

Supreme Court opinions, often supported by executive pronouncements, embrace this all-encompassing power to settle constitutional conflicts by claiming responsibility for every constitutional nook and cranny. Chief Justice Roger Taney's opinion in Ableman v. Booth stated:

It was essential, therefore, to its very existence as a Government ... that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. (7) One hundred years later, every Justice on the Supreme Court signed Chief Justice Earl Warren's assertion in Cooper u. Aaron that the Justices had the final say in all controversies over the meaning and application of constitutional provisions. (8) Warren's unanimous opinion asserted:

In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.... No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery." (9) During the Little Rock Crisis, President Eisenhower firmly defended the Supreme Court as the final arbiter for all constitutional controversies. (10) He declared, "[t]he very basis of our individual rights and freedoms rests upon the certainty that the President ... will support and insure the carrying out of the decisions of the Federal Courts." (11)

Justices on the contemporary Rehnquist and Roberts Courts are particularly prone to insist on judicial supremacy over the entire American constitutional universe. (12) Professor Kramer observes that the Supreme Court's "new jurisprudence rests explicitly on a claim that it is judges who are ultimately responsible for interpreting the Constitution and that this means the whole Constitution." (13) Chief Justice Rehnquist's opinion in United States v. Morrison asserted, "ever since Marbury [u. Madison] this Court has remained the ultimate expositor of the constitutional text." (14) "When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued," Justice Kennedy's opinion for the Court in City of Boerne v. Flores stated, "it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed." (15) In Planned Parenthood of Southeastern Pennsylvania v. Casey, the plurality opinion suggested that constitutional debate outside the Court must cease when the Supreme Court speaks clearly and decisively on a constitutional issue. (16) Justices O'Connor, Kennedy, and Sou ter spoke of "the Court's interpretation of the Constitution call[ing] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." (17)

Closer examination reveals that the Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies (18) or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. (19) In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority by persons other than Supreme Court Justices. (20) Inflated claims about the role of the Supreme Court in American constitutional politics ignore significant institutional, legal, and political constraints on judicial power, conflate the judicial power to have the final say over the meaning of constitutional provisions with the judicial power to settle constitutional controversies at particular times and places, and confuse independent constitutional authority with nullification.

Established Supreme Court doctrine frequently vests independent constitutional authority in persons other than Supreme Court Justices. The political question doctrine vests Congress and the President with the power to settle important constitutional disputes. Concrete judicial review vests persons outside the Supreme Court with temporary constitutional authority, often for extended periods of time, to provide provisional settlements for constitutional disputes. Elected officials, state judges, and ordinary citizens may reject Supreme Court doctrines when making constitutional decisions, as long as they do not act in ways forbidden by existing constitutional law. (21) A governor who believes that capital punishment violates the Eighth and Fourteenth Amendments may pardon all persons on the state's death row, even when the Supreme Court insists that the death penalty meets constitutional standards. (22) President Andrew Jackson refused to follow McCulloch v. Maryland when claiming the federal government had no power to incorporate a national bank. (23) Judicial deference to legislative and trial court fact-finding enables governing officials to disregard judicial precedents as long as they can plausibly describe the underlying circumstances in ways that make their conduct appear to be consistent with constitutional norms. (24) Police officers who know that trial judges are likely to purport to believe their testimony that some evidence was in plain view have the practical authority to determine the constitutional justifications for their searches. (25)

Supreme Court Justices would face insuperable legal, institutional, and political...