JUDICIAL SUPREMACY

Stripped of the partisan rhetoric that usually surrounds important decisions of the Supreme Court, debate about judicial supremacy raises a fundamental question: Who is the final, authoritative interpreter of the Constitution? The response of judicial supremacy is that courts perform that function and other officials are bound not only to respect judges' decisions in particular cases but also, in formulating future public policy, to follow the general principles judges have laid down.

judicial review does not necessarily entail or logically imply judicial supremacy. One can, as thomas jefferson did, concede the legitimacy of courts' refusing on constitutional grounds to enforce statutes and executive orders and still deny either that officials of a coordinate branch must obey a decision or follow its rationale in the future. This view, called "departmentalism," sees the three branches of the national government as equal in constitutional interpretation. Each department has authority to interpret the Constitution for itself, but its interpretations do not bind the other two.

There are other possible answers to the basic question: Congress, the President, the states, or the people. A claim for the states presupposes the Constitution to be a compact among sovereign entities who reserved to themselves authority to construe their obligations. Such was Jefferson's assertion in the kentucky resolutions (1798), and it echoed down decades of dreary debates on nullification and secession. The civil war settled the matter, though some southern states briefly tried to resurrect nullification to oppose brown v. board of education (1954).

A claim for the President as the ultimate, authoritative interpreter smacks too much of royalty for the idea to have been seriously maintained. On the other hand, Presidents have frequently and effectively defended their independent authority to interpret the Constitution for the executive department.

A case for the people as the final, authoritative interpreter permeates the debate. American government rests on popular consent. The people can elect officials to amend the Constitution or create a new constitution and so shape basic political arrangements as well as concrete public policies. Jefferson advocated constitutional conventions as a means of popular judging between conflicting departmental interpretations.

Although even james madison rejected Jefferson's solution, indirect appeals to the people as the ultimate interpreters are reflected in claims to the supremacy of a popularly elected legislature. On the other hand, in the federalist #78, alexander hamilton, rested his argument for judicial review on the authority of the people who have declared their will in the Constitution. Judicial review, he argued, does not imply that judges are superior to legislators but that "the power of the people is superior to both."

Although john marshall partially incorporated this line of reasoning in marbury v. madison (1803), neither he nor Hamilton ever explicitly asserted that the Supreme Court's interpretation of the Constitution was binding on other branches of the federal government. One might, however, infer that conclusion from Marshall's opinions in Marbury and in McCulloch v. Maryland (1819), where he expressly claimed supremacy as far as state governments were concerned.

We know little of the Framers' attitudes toward judicial supremacy. In The Federalist #51, Madison took a clear departmentalist stand, as he did in the First Congress. In 1788 Madison wrote a friend that the new Constitution made no provision for settling differences among departments' interpretations: "[A]nd as ye Courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended and can never be proper."

In the Senate in 1802, however, gouverneur morris argued that the judges derived their power to decide on the constitutionality of laws "from authority higher than this Constitution. They derive it from the constitution of man, from the nature of things, from the necessary progress of human affairs. The decision of the Supreme Court is and, of necessity, must be final."

What turns a brief for judicial review into one for judicial supremacy is, of course, the claim of finality. Partially, that claim rests on the notion that interpretation of law is a uniquely judicial function (and, by its own terms, the Constitution is "the supreme law"); partially, on the ambiguity of the Constitution about the interpretive authority of other branches; and partially on the need for a supreme arbiter to assure the supremacy and uniform interpretations of the Constitution. The claim also rests on the belief that judges, because they are protected from popular pressures, are more apt to act fairly and coherently than elected officials. "It is only from the Supreme Court," charles evans hughes once asserted, "that we can obtain a sane, well-ordered interpretation of the Constitution." The Court itself has seldom explicitly claimed judicial supremacy and has never articulated a full argument for it vis-à-vis Congress or the President. Indeed, through such doctrines as the presumption of constitutionality and political questions, the Court often defers to interpretations by other departments.

The first modern, categorical claim by the Court to supremacy came in cooper v. aaron (1958), where the Justices said that "the federal judiciary is supreme in the exposition of the law of the Constitution," and thus that Brown v. Board of Education was "the supreme law of the land." But Cooper involved state officials as did baker v. carr (1962), where the Court first referred to itself as the "ultimate interpreter of the Constitution." Still, it was not until powell v. mccormack (1969) that the Court so designated itself in a dispute involving Congress, an assertion the Justices repeated about the President in united states v. nixon (1974) and about both in immigration and naturalization service v. chadha (1983). Powell, however, addressed only the authority of the House to exclude a duly elected member and it did not require that he be readmitted or be given back pay. Nixon upheld a subpoena to a President whose political situation was already desperate. What would have happened to the Court's claim as "ultimate interpreter" had it faced a politically secure chief executive in Nixon or tried to force Congress to take action in Powell might well have produced examples of departmentalism, as did Jefferson's refusal to obey Marshall's subpoena in United States v. Burr (1807). And early congressional reactions to Chadha's declaring the legislative veto unconstitutional have been mixed. Formally as well as informally, Congress has continued the practice, though in a more guarded fashion and on a smaller scale.

Although the constitutional text does not require judicial supremacy, Congress and the President have usually gone along with the Court's constitutional interpretations. Yet the exceptions have been sufficiently frequent and important that it is difficult to demonstrate a firm tradition requiring coordinate federal branches to accept the Court's doctrines. In matters strictly judicial—whether or not courts will enforce particular statutes—judges have been supreme, though subject to checks regarding jurisdiction and appointment of new personnel. The other branches, however, have frequently denied that they have an obligation, when setting policy, to follow the Court's constitutional interpretations.

There is a stronger argument for a duty of enforcing a judicial decision in a particular case. Certainly where the government has brought the case to the courts, an obligation to obey is obvious, as even Jefferson admitted. Where, however, the government is the defendant, the matter is much more complicated, especially when a court commands an official to perform a positive action. Jefferson and andrew jackson said they had no duty to obey such orders; abraham lincoln acted as if he did not; and franklin d. roosevelt was prepared to ignore the gold clause cases (1934) had they been decided against the government.

Typically, Congress and the President acquiesce in judicial interpretations of the Constitution because they agree with the results of judicial decisions, or fear public opinion, or recognize the difficulty of securing a congressional response. Often, too, the Justices reinforce Congress's tendency toward inertia by not pressing a claim to supremacy. Always hovering in the background of any department's assertion of supremacy is the possibility of an appeal to "the people" through the amending process. Yet even such an appeal, when directed against the Court's jurisprudence, implies an admission of the tactical if not theoretical superiority of the Court as constitutional interpreter.

Walter F. Murphy
(1986)

Bibliography

Corwin, Edwin S. 1914 Marbury v. Madison and the Doctrine of Judicial Review. Michigan Law Review 12:538–572.

Fisher, Louis 1985 Constitutional Interpretation by Members of Congress. North Carolina Law Review 63:701–741.

Mikva, Abner J. 1983 How Well Does Congress Support and Defend the Constitution? North Carolina Law Review 61: 587–611.

Murphy, Walter F.; Fleming, James E.; and Harris, William F., II 1986 American Constitutional Interpretation. Chaps. 6–7. Mineola, N.Y.: Foundation Press.