Linking the questions: judicial supremacy as a matter of constitutional interpretation.

• Author: El-Haj, Tabatha Abu
• Position: Introduction through II. Constitutional Interpretation as Practice, p. 1309-1332

TABLE OF CONTENTS INTRODUCTION I. JUDICIAL SUPREMACY: THE DEBATE II. CONSTITUTIONAL INTERPRETATION AS PRACTICE III. LINKING JUDICIAL SUPREMACY TO CONSTITUTIONAL INTERPRETATION A. THE COURT'S CLAIM TO INTERPRETIVE EXPERTISE B. THEORIZING LIMITS TO JUDICIAL SUPREMACY C. DEVELOPING A FRAMEWORK FOR ANALYZING A CLAIM TO SUPREMACY D. IMAGINING A PROCESS FOR REVOCATION AND A WORLD WITHOUT SUPREMACY IV. RACE AND REPRESENTATION-APPLYING THE FRAMEWORK V. WHY BOTH ARE BETTER THAN EITHER CONCLUSION INTRODUCTION

Two questions lie at the heart of constitutional theory: How do we determine what the Constitution means? And who should decide? (1) This Article argues that these two questions are linked. The question of who should be given final authority to decide what the constitution means critically depends on what is required to determine constitutional meaning. Normative limits to the Supreme Court's claim to a monopoly over constitutional meaning lie, if anywhere, in limits to its expertise with respect to constitutional interpretation, should they exist.

Today, most people take it for granted that the supreme court is in the best position to interpret the constitution and thus is entitled to do so for all of us. But that consensus has not always existed in the United States, and, in recent years, a number of prominent constitutional scholars have challenged us to reexamine this assumption. (2) These scholars have reopened the debate about who should decide what the constitution means.

The popular constitutionalism literature has been as rigorous as it has been provocative. (3) Yet, it has largely failed to generate a widespread shift in attitudes about judicial supremacy. (4) For instance, neither president Obama nor his administration has asserted that the Executive (or Congress) is entitled to determine independently the First Amendment's constraints on corporate political spending, or that they will continue to refuse to enforce the Defense of Marriage Act ("DOMA") should the Court find it constitutional. (5) In fact, these scholars tend to be disheartened about whether American citizens are likely to reassert "their right ... as republican citizens to say finally what the Constitution means." (6)

In the legal academy, the popular constitutionalism literature has been much criticized, occasionally even disparaged. (7) Many see nothing to fear in judicial supremacy and firmly believe that the Court is better suited to the task of principled constitutional interpretation than any other branch of government. (8) "Isn't it likely that you and I will hate the public's view of the Constitution?," they ask.

What has been missing from the debate between advocates of popular constitutionalism and defenders of the Court is any account of the practice of constitutional interpretation. This absence is particularly glaring since it is relatively uncontroversial that the Court's expertise with respect to constitutional interpretation would justify giving it the final say as to constitutional meaning. (9)

Without a clear sense of what constitutional interpretation involves, however, one cannot assess the prevailing assumption that the Court is uniquely positioned to interpret the Constitution or explore an expertise-based justification for its claim to finality. This Article, therefore, revisits the debate about judicial supremacy by starting, not with history or politics, but with constitutional interpretation itself. The Article uses the work of Phillip Bobbitt to provide a thorough account of how constitutional meaning is derived in practice. (10) Bobbitt has identified a set of conventions with respect to constitutional argument and illustrated how they confer legitimacy on interpretations of the Constitution within the legal field. (11)

A close analysis of the conventions of constitutional interpretation reveals that there are indeed limits to the Court's interpretive expertise. While the Court is generally more competent than other branches of government or the public in interpreting the Constitution, its "[i]nterpretive authority has internal limits." (12)

The Court's claim to supremacy is strongest when its decisions are based on interpretive methods in which it is uniquely expert. These tend to be methods for which lawyers are specifically trained and the judicial forum is specifically well suited. By contrast, the Court's claim to supremacy is at its lowest ebb when its views are ultimately determined by methods for which it cannot claim unique expertise.

Some constitutional questions, however, are ultimately resolvable only based on interpretive methods for which the Court cannot claim unique expertise. Moreover, some of these questions, for a variety of reasons, would be better resolved in conversation with other constitutional actors. They are issues with respect to which the other branches of government and the public itself are, at the very least, equally capable of undertaking constitutional interpretation.

As such, there may be times when judicial supremacy should be abandoned and interpretive authority should be shared. This, of course, leaves us with an obvious question: Even if this is right, is it possible (let alone desirable) to translate this theoretical insight into practical limits on judicial authority over the Constitution? The Article suggests that it is.

It proceeds to develop a framework that would enable one to decide when the default rule of supremacy should be revoked. The framework is designed to take into account two key points: first, the Court's relative expertise will vary in important respects depending on the question to be resolved; second, whether it is desirable to revoke the default rule will also turn on countervailing concerns, including an interest in settlement and in having a clear forum for decisionmaking.

In the first instance, the framework seeks to address how one would decide whether the Court's claim to expertise is at its lowest ebb. Briefly, where the Court's interpretations do not ultimately turn on forms of interpretation for which it has special expertise, its views are less worthy of deference and more open to challenge.

In light of the systemic advantages to granting a single institution the authority to resolve constitutional conflict, however, it would be foolish to allow for shared interpretive authority every time the Court reached a conclusion that could not be attributed to its special competence. As such, the framework also offers an account of the kinds of considerations that should inform whether the default rule of supremacy should be revoked if the Court's claim to expertise is found to be at its lowest ebb.

Revoking the default rule of judicial supremacy depends ultimately on a determination that the Court has failed to resolve constitutional ambiguity over time and that, all things considered, shared interpretive responsibility is preferable. All of this requires close analysis of a series of decisions wrestling with a specific constitutional question as well as careful consideration of contextual factors.

The analysis offered here seeks to persuade the reader that it is possible to transfer issues out of the Court's exclusive domain. (13) At the same time, it seeks to explain why we generally are right to accept the Court's views even when we disagree with them. That is, it offers an account of why judicial supremacy is appropriate in most cases-one that is grounded in the nature of constitutional interpretation itself.

To be clear, the paradigm proposed here does not rob the Court of its constitutional say. Judicial review will remain, and the Court will continue to get the first shot at constitutional issues, so long as they can be properly presented. The framework does not allow challenges to judicial supremacy...