The importance of being final.

• Author: Farber, Daniel A.
• Position: Supremacy of the US Supreme Court

The Supreme Court likes to bill itself as the definitive interpreter of the Constitution. In Cooper v. Aaron (1), all nine Justices individually signed an opinion proclaiming that the Court's constitutional doctrines were the supreme law of the land. More recently, the joint opinion in Planned Parenthood v. Casey (2) emphasized the Court's role in settling national controversies, arguing that such decisions must receive extraordinary respect lest the Court's authority be undermined.

The Court's self-proclaimed supremacy has not been without its critics. As early as 1819, Thomas Jefferson denounced what he viewed, even then, as the Court's pretensions to supremacy. He argued that if judges had the final word over the meaning of the Constitution, they could reshape the Constitution like wax to fit their own preferences. In contrast, Jefferson believed that all three departments were entitled to decide for themselves on the meaning of the Constitution. (3)

The debate over judicial supremacy has continued until today, at least among scholars. In Part I of this essay, I will attempt to clarify the issues in dispute. In my view, it is helpful to distinguish between three kinds of judicial supremacy. Decisional supremacy involves the power to issue coercive orders to state and federal officers, thereby overriding the constitutional judgments of those officers in particular cases. When such an order would be forthcoming later, anticipatory supremacy would require government officers to comply in advance with settled judicial doctrines rather than forcing the injured party to obtain a court order against them. The broadest form of supremacy applies in situations where coercive judicial relief is not a possibility. Precedential supremacy means that government officials should treat settled judicial doctrine as binding precedent even when their actions are not subject to judicial review. Decisional supremacy has become an accepted feature of our legal system; anticipatory supremacy probably occupies an intermediate position; precedential supremacy is the most controversial.

In Part II of this essay, I will briefly summarize the Marshall Court's campaign to secure a foothold for decisional supremacy, a campaign that opened with the mandamus discussion in Marbury itself. These efforts were bitterly resisted at the time. Marshall's opponents were right to place so much importance on the issue. Decisional supremacy is ultimately the core form of judicial supremacy. As decisional supremacy has expanded with increases in jurisdiction and remedial powers, the other forms of supremacy have become progressively less important. Once the Court established decisional supremacy, its place as the ultimate constitutional authority was essentially secured. Another way of putting this is that, as a practical matter, whatever authority the Court claimed for its precedents in Cooper v. Aaron pales by comparison with power to settle presidential elections or to order an errant president to disclose incriminating evidence.

1. THREE KINDS OF JUDICIAL SUPREMACY

   The Introduction divided claims of judicial supremacy into three subcategories. In this section, I will discuss how the debates over judicial supremacy play out with regard to each of the three. I will discuss them in reverse order, because the third form of supremacy (precedential supremacy) has received by far the most scholarly attention.

   Precedential supremacy--the kind of supremacy the Court claimed in Cooper v. Aaron--has been strongly resisted by some leading scholars. Critics make three major attacks on precedential supremacy. The first attack is based on the separation of powers. The key here is the Jeffersonian claim that the three branches are coordinate and independent. Members of each branch swear to support the Constitution. Consequently, each branch must make its own independent judgment about the meaning of the Constitution. In particular, the president's duty to take care that the laws be faithfully executed requires that he determine for himself what those laws (including the Constitution) actually require. (4)

   The second attack on precedential supremacy is based on the nature of the judicial role. The core function of courts is not to issue opinions; it is to issue judgments. Issuing judgments in individual cases is the real business of the courts, while the accompanying opinions are merely explanations of the reasons for the decision. Although the point is usually not put quite so strongly, the argument is that judicial opinions really have the same status as press releases accompanying a presidential veto. They may be useful for lawyers and lower court judges who want to predict later judicial rulings, but they are not actually "law." (5)

   A final argument against precedential...