The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent--soft. And the upshot of soft supremacy is this: we do not need popular constitutionalism, departmentalism, or any other theory de jour to put the people back in the Constitution. In numerous and substantial ways, they are already there.
Table of Contents INTRODUCTION I. "WE THE PEOPLE" IN CONSTITUTIONAL DECISION-MAKING A. The Judicial Appointments Process B. Constitutional Doctrine 1. Rational Basis Review 2. Constitutional Decision-Making Based on State Legislative Consensus 3. Justiciability Doctrines C. Constitutional Dialogue with the Representative Branches 1. The Solicitor General 2. Congressional Legislation D. Constitutional Dialogue with the People Themselves II. "WE THE PEOPLE" AFTER CONSTITUTIONAL Decision-Making A. The Judicial Appointments Process B. Constitutional Amendment C. Court-Curbing Measures D. Nonenforcement E. Statutory Pushback III. THREE IMPLICATIONS OF SOFT SUPREMACY A. What Soft Supremacy Does for Our Democratic Discourse B. What Soft Supremacy Does for the People C. What Soft Supremacy Does for the Representative Branches CONCLUSION INTRODUCTION
This symposium contribution offers a descriptive answer to a normative claim. The normative claim is that judicial supremacy is antidemocratic; it allows an unelected judiciary to decide issues that belong to the people themselves, and renders the people powerless to do anything about it. (1) The Constitution belongs to the people, critics claim--the people wrote it, the people ratified it, and the people should have a hand in deciding its meaning. (2) My descriptive answer is that they already do.
Those who claim that judicial supremacy is antidemocratic assume that because Supreme Court Justices are unelected, their constitutional decision-making is separate from, independent of, and even at odds with the will of the people. (3) "[J]udicial supremacy leaves us with no meaningful opportunity to participate in constitutional interpretation," (4) one critic writes, and this is the crux of the claim--that judicial supremacy affords the people no say in constitutional decision-making on the front side and no control over what has been decided on the backside. (5) The Court decides the issue and it gets the last word. Hence the depiction of an imperial Supreme Court. (6)
But this is not the Supreme Court we have, and it is not how judicial supremacy actually works. In theory, the Court might be insulated from the will of the people, but in reality, its constitutional decision-making is inextricably intertwined with the will of the people, channeling the views of political and popular majorities in numerous ways. And in theory, the Court might have the last word on what the Constitution means, but in reality, its constitutional pronouncements are final only to the extent that the people and their representatives are willing to accept them, giving political and practical majorities control of a ruling's staying power in numerous ways.
The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse of those who oppose it on democratic grounds. Judicial supremacy is porous, contingent--soft. And the upshot of soft supremacy is this: we do not need popular constitutionalism, departmentalism, or any other theory de jour to put the people back in the Constitution. In a myriad of ways, they are already there.
I am not the first to recognize the power of the people in the Supreme Court's constitutional decision-making; a rich body of scholarship has demonstrated the point across a variety of domains. My aim here is to bring together the various strands of this scholarship to construct an accurate conception of the reality of judicial supremacy--one that stands in sharp contrast to the grossly oversimplified theoretical account that is all too common in judicial supremacy debates. In the end, my hope is to push the conversation in a more realistic direction. I want those who make claims about judicial supremacy to take on the concept as it actually exists.
Mainly, I am talking to departmentalists in this project--those who claim that the representative branches have equal authority to say what the Constitution means and are therefore not bound by what the Supreme Court says. (7) Not all departmentalists oppose judicial supremacy on democratic grounds, but many do, and even those who do not are prone to depict judicial supremacy in a formalistic fashion. (8) Indeed, what some portray as the advantages of departmentalism instead describes the world of judicial supremacy as it actually exists. (9) That world has unique implications for the departmentalist position, so at the end of the discussion I direct my comments specifically to those inclined to the departmentalist view.
But to be clear, the implications of recognizing judicial supremacy for what it is, as opposed to what constitutional theory posits it to be, are broader than the departmentalist position that is my primary aim. Some defend judicial supremacy on the belief that "[s]ome questions--questions of justice and rights--are too important to be left in the hands of legislative majorities or 'the people themselves."' (10) Others, those loosely dubbed "popular constitutionalists," oppose judicial supremacy based on the flip side of that claim--the belief that questions of justice and rights are too important not to be left in the hands of legislative majorities and the people themselves. (11) Both positions assume that the Supreme Court's constitutional decision-making is separate from, and independent of, the people and their representatives. Soft supremacy challenges that assumption, showing how porous the line between the Supreme Court on the one hand, and the people and their representatives on the other, actually is.
In the end, my point is this: if we are going to debate the merits of judicial supremacy, we at least ought to do so based on an accurate conception of how it operates, and that means recognizing the role of the people and their representatives in the constitutional decision-making process. To that end, Part I surveys the various avenues of influence that the people and their representatives have on the front side of constitutional decision-making, and Part II surveys the various avenues of control that the people and their representatives have on the backside of constitutional decisionmaking. In Part III, I explore three implications of this largely descriptive account, discussing what soft supremacy does for our democratic discourse, what it does for the people themselves, and what it does for the representative branches. In light of what judicial supremacy does for the representative branches, I ultimately ask whether departmentalism is good for even departmentalists (spoiler alert: the answer is no). In the end, the notion of "power to the people" (12) is not the problem with opposition to judicial supremacy on democratic grounds. The problem is its failure to recognize the power that the people have now--a power that lies at the heart of soft supremacy.
"WE THE PEOPLE" IN CONSTITUTIONAL DECISION-MAKING
Critics of judicial supremacy claim that "the people should have a major role to play in constitutional interpretation." (13) In this Part, I challenge the assumption that they do not have that now, surveying the various avenues by which the people and their representatives shape constitutional decision-making and influence the content of constitutional law. Scholars have been exploring these avenues for decades, in part to explain a somewhat inconvenient fact for those who think judicial supremacy is antithetical to democratic rule: since at least the 1930s, the Supreme Court's decision-making has been roughly as reflective of the will of the people as that of the representative branches. (14) To be clear, my focus here is on inputs in the constitutional decision-making process rather than outputs--but the two are not unrelated. Think the Supreme Court's long-standing ability to reflect the views of the American people just happens by accident? A more likely explanation is that the people's views are somehow making their way into the Court's constitutional decision-making process. Here are the primary means by which I think this happens.
The Judicial Appointments Process
The judicial appointments process is the conventional explanation for the Supreme Court's responsiveness to the views of popular and political majorities. (15) The Justices may not be elected, but the Presidents who nominate them and the senators who confirm them are, and the idea here is that these elected representatives use the appointments process to stock the bench with jurists who share their constitutional views. (16) Over time, this process allows political majorities--and by extension, the popular majorities who elected them-to shape the Court's decision-making in ways that reflect their own constitutional understandings. (17) In short, by controlling the Supreme Court's composition, the people and their representatives have tremendous influence on its constitutional decision-making as a matter of institutional design. (18)
Granted, the judicial appointments process is far from perfect in this regard. Sometimes Presidents make appointment "mistakes," thinking nominees embrace a particular set of constitutional commitments when in fact they do not. (19)...