In the course of a conservation I’ve been having with an extremely smart lawyer about John Roberts’ arguments about Article III, I’ve been trying to clarify some thoughts about judicial review and democracy. Before I get into that, however, it’s worth emphasizing the distinction beteween two seperate concepts: judicial review and judicial supremacy. The former means that the courts have the power to nullify acts of the legislature and the executive as a power inherent in the courts being a co-equal branch, while the latter means that the Courts are the foremost expositor of the meaning of the Constitution, and any difference between the constitutional interpretations of the political branches and the judiciary should be resolved in favor of the courts. All theories of judicial supremacy imply judicial review, but judicial review does not require accepting judicial supremacy.
Judicial supremacy is quite clearly entrenched in current American constitutional doctrine, accepted by most people on both sides of the political spectrum. My own opinion is that this is a relatively recent phenomenon, although many scholars disagree. This conversation has to start with the decision that is generally (although not entirely accurately) seen as the decision that created judicial review in the United States: Marbury v. Madison. Chief Justice Marshall defended his assumption (not explicitly in the text of the Constitution) that the judiciary had, at least, the power of judicial review as follows:
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
From these and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
In other words, the judiciary–which, like the other branches–is bound by the Constitution, cannot enforce acts that are unconstitutional. This argument makes a great deal of sense, and I think Marshall is right that this power is implicit in the Constitution. However, I think that this is quite clearly a defense of judicial review, not judicial supremacy. Marshall says nothing about the circumstances by which the courts are in a position to render constitutional judgments; nothing in Marshall’s framework would preclude either jurisdiction-stripping under Article III, or Canadian-style legislative overrides. In addition, Marshall goes out of his way to say that judicial review is inherent in the judiciary being a co-equal branch. I do not think that Marbury can be cited as the source of a strong version of judicial supremacy.
Other cases, however, are more explicit. Let’s take two:
Cooper v. Aaron: This was the case that arose when Arkansas school boards were attempting to nullify Brown v. Board, culminating in forcing Eisenhower to send the Big Red One into Little Rock. The Court’s opinion–misinterpreting Marbury, in my view, claimed that “This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Obviously Cooper v. Aaronis an attractive case with which to assert judicial supremacy, as the Court was on the side of the angels against a demagogue trying to prolong Jim Crow in a lawless and unprincipled way. (Liberals should, as I will argue in my next post, be careful not to fall into an obvious trap, and remember that judicial supremacy doesn’t just apply to the Court’s good decisions.) The thing about this case, though, is that the dicta asserting judicial supremacy is unnecessary; all that is needed is to assert the clearly spelled out in the Constitution. The state of Arkansas is bound to respect the constitutional interpretations of the Court even if the Court is not “supreme in the exposition of the law of the Constitution” because a conflict between a state and any federal institution must be revolved in favor of the latter.
City of Boerne v. Flores: Judicial supremacy is, however, necessary to reach the outcome in this case. In Oregon v. Smith, Scalia wrote an opinion overturning a major precedent and giving a much narrower construction of the free exercise clause than the previous standard, resulting in someone who was fired for smoking peyote as part of a religious ceremony was not eligible for unemployment benefits. The decision enraged religious conservatives and civil libertarians alike, and Congress (by huge, bipartisan margins in both Houses) enacted the Religious Freedom Restoration Act, which restored the previous standard. The Court, in an equally ideologically mixed majority opinion (Ginsburg and Stevens joining Rehnquist, Scalia, Thomas, and Kennedy) struck down RIFA, affirming the theory of judicial supremacy laid out in Cooper. Make sure to note that–contrary to the assumptions many people make about the Court being the stalwart defender of powerless minorities against majority tyranny–that Congress wanted to give constitutional rights to religious minorities, and the Court refused to let them. Is City of Boerne right? I’m not sure; I’m agnostic-to-skeptical about judicial supremacy. But I do want to emphasize that while the distinction between judicial review and judicial supremacy may seem subtle–particularly given that the courts tend to come last in the process of interpretation–when it comes to determining what legitimate means Congress has of responding to judicial policy-making, it’s extremely important. I’ll discuss this question next.