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

• Author: El-Haj, Tabatha Abu
• Position: III. Linking Judicial Supremacy to Constitutional Interpretation through Conclusion, with footnotes, p. 1332-1373

With this account of the practice of constitutional interpretation, we are finally in a position to assess the Court's interpretive expertise and to explore its implications for judicial supremacy. The preceding account enables us to see that there are, in fact, limits to the Court's alleged expertise. The judiciary is uniquely situated only with respect to some of these modalities of constitutional argumentation. This Part explains this claim and uses it to develop a framework for analyzing when it would be reasonable for the public to revoke its consent to the Court's final interpretive authority and, thus, for the other branches of government to reassert shared responsibility for constitutional interpretation. Finally, this Part explores how the process of revocation might work as a practical matter.

1. The Court's Claim to Interpretive Expertise

   The Court's claim to expertise is strongest when it is engaging in interpretive modalities for which lawyers are uniquely trained and the judicial forum is particularly well suited. As James M. Landis once noted regarding the division of legal labor between judges and administrators: "Our desire to have courts determine questions of law is related to a belief in their possession of expertness with regard to such questions." (109) similarly, constitutional questions should be left to courts where they possess relative expertise with regard to constitutional interpretation.

   Where constitutional meaning is elaborated through textual, historical, structural, and doctrinal argument, the Court's claimed expertise is solid, and deference to its views makes sense. Arguments based on text, structure, and doctrine depend on close analyses of language or ideas within a limited universe of texts. More importantly, this universe of texts with its accompanying stories is precisely what is taught in law school. "[I]n the last analysis," these are modalities "that lawyers are equipped to decide." (110)

   The competence of judges with respect to the historical modality--especially in its traditional, originalist form--is also credible. As others have argued before me, "[t]he telling of history is an evidentiary exercise"--one that "requires judges to sift through competing evidence offered by litigants." (111)

   Moreover, the judicial forum--including brief writing and the work in judicial chambers--is particularly conducive to the sort of reading, writing, and research that is required by these four modalities. (112) By contrast, the legislative forum is ill suited to such arguments, especially those requiring a careful analysis of precedent. (113)

   The Court's claim to interpretive expertise is at its lowest ebb when it resolves constitutional ambiguity through interpretive modalities for which lawyers are not uniquely trained. (114) Specifically, where the Court's interpretations of the Constitution ultimately rest on prudential and ethical argument, it lacks a special claim to interpretive expertise.

   Nonjudicial actors are at least as good at making these sorts of arguments about the Constitution, if not better. To take each in turn, prudential arguments are essentially policy arguments. They are arguments about the consequences of competing constitutional rules, and they turn on empirical facts. Policy arguments are a regular feature of legislative hearings as well as official and private legislative debates. Similarly, the Executive, especially its administrative arm, has both expertise and experience in empirical, consequentialist reasoning as well as established procedures and forums in which these types of arguments are regularly made (e.g., notice and comment rulemaking).

   Democratically accountable bodies have another competitive advantage as places for debates about constitutional constraints to the degree that those debates turn on prudential considerations. This is because final decisions in policy matters frequently turn on value judgments. Heterogeneous, modern societies generally default to the democratic process to make such value judgments in recognition of the fact that moral consensus is frankly impossible. (115)

   Judges, by contrast, are not particularly well positioned to adjudicate policy debates, lacking both technical expertise and democratic accountability. (116) Moreover, the adversarial system and the rules of evidence undermine the reliability and scope of empirical evidence that comes before the courts, and judges are generalists.

   Several of the Court's own doctrines acknowledge this, calling for deference to other branches when a question turns on the weighing of empirical evidence or policy consequences. (117) These same doctrines recognize a democratic accountability rationale for deference. To the degree that policy questions frequently cannot be resolved entirely on objective scientific grounds and instead require value judgments, courts have recognized that these decisions are best left to democratically accountable actors.

   Make no mistake, the claim, here, is not that "[j]udicial decisions inconsistent with the people's will should be resisted" simply because they are anti-majoritarian. (118) Rather, the point is that since value judgments are typically left to the democratic process, and policy decisions always involve value judgments, our democratic institutions should have a voice in constitutional interpretation that turns on prudential reasoning, absent some countervailing concern.

   The capacity of nonjudicial actors with respect to the ethical modality is similarly robust. As we have seen, the ethical modality is not an assessment of morality. Instead, it seeks to resolve ambiguity by reading the Constitution in light of fundamental tenets of American culture. (119)

   Once again, democratically elected bodies have the advantage of accountability (and relatedly exposure) to a wide range of perspectives on our national commitments. This is essentially Mark Tushnet's point when he suggests that "disagreements over the thin Constitution's meaning are best conducted by the people, in the ordinary venues for political discussion" (where the "thin Constitution" refers to the Constitution's "fundamental guarantees of equality, freedom of expression and liberty.") (120)

   Judges, by contrast, are intentionally insulated from the democratic process by our Constitution through the grant of life-tenure. (121) Moreover, judges, as a group, turn out to be highly unrepresentative of the American public. (122)

   Another underappreciated advantage that nonjudicial actors have with respect to the ethical modality is that they are not constrained by the legal profession's limited notion of what constitutes a relevant text from which to discern our nation's fundamental ethical commitments. Presidential speeches, the speeches of Frederick Douglass, Martin Luther King, Elizabeth Cady Stanton or advocates of the Seventeenth Amendment, even monuments on the National Mall, are all arguably relevant to understanding our nation's fundamental moral commitments and the ways they have changed. Such texts are, nevertheless, awkward bases for judicial decisionmaking within the conventions of legal practice. (123)

   None of this is to say that the Justices (or other judges) should be precluded from engaging in the ethical modality. Justices, over time, accrue vast knowledge of important legal texts that reveal our ethical commitments. As such, it is important to have their voice in any debate.

   At the same time, we should not preclude others from speaking simply because there are benefits to hearing the Court's views. This is especially so given that when the Court "purport[s] to speak for the fundamental ethos of the contemporary community," it is likely to find itself in "an exposed position" since its positions are "justified in the end only by the wisdom of its own insight." (124)

2. Theorizing Limits to Judicial Supremacy

   The Supreme Court's claim to supremacy is strongest when it is engaging in interpretive methods in which it is uniquely expert. When the Court's decisions turn on prudential or ethical judgments, however, its claim to expertise is at its lowest ebb. Interpretive questions that ultimately depend on the ethical and prudential modality are precisely the questions with respect to which the other branches of government and the public itself are, at the very least, equally capable of engaging.

   In order to imagine, how the limits of judicial expertise with respect to constitutional interpretation might inform a discussion of judicial supremacy, a number of considerations must first be explored. Most importantly, we must recognize the significant systemic advantages to granting a single institution the authority to resolve constitutional conflicts.

   The primary advantage of a bright-line rule of judicial supremacy is that it provides a clear forum for the ultimate resolution of controversies. The first advocates of judicial supremacy argued precisely this point. In the early 1830s, for instance, Justice Story urged that the Constitution required a single interpreter, whose interpretations would be final, in order to further the central benefits of all law: uniformity, certainty, predictability, and stability. (125) This same argument was recently expanded upon by Alexander and Schauer, who warn against shared interpretive authority on the grounds that the "settlement of contested issues is a crucial component of constitutionalism" that requires "an authoritative interpreter whose interpretations bind all others." (126) In light of this consideration, the public would be foolish to revoke consent every time the Court reached a conclusion that could not be attributed to its special competence.

   Judicial supremacy is appropriate where indeterminate meaning is stabilized despite critical reliance on modalities for which the Court cannot claim special competence. Put differently, where the Court succeeds in resolving constitutional ambiguity (i.e., deciding...