There has been much ado in the legalosphere about “judicial supremacy.” Randy Barnett gives a good summary of (and links to) the views of various constitutional scholars, then puts the power of the judiciary in constitutional context:
In some respects “judicial supremacy”–like “judicial activism”–is a deliberately loaded pejorative term. I agree entirely with the “departmentalist” vision identified by [Michael Stokes] Paulsen and [Ed] Whelan that each constitutional actor has a duty to adhere to the written Constitution that is independent of the opinions of other constitutional actors…. As a separate and co-equal branch of government, the judiciary gets to render its opinion on the constitutionality of a law, but only if the other branches first decide the measure is constitutional. Because, as Evan Bernick points out, the judiciary’s concurrence that a law is constitutional is a function of its equality to the other branches not its supremacy…. In short, the judicial power to invalidate a law because it is unconstitutional is a manifestation of judicial equality, not judicial supremacy. But this necessarily means that the law is void unless the judiciary concurs, and this judgment is then “binding” on the other branches, just as the other branches refusal to enact or sign a law is binding on the judiciary…. So, the “myth of judicial supremacy” is itself a myth. The “judicial power” to nullify unconstitutional laws was no invention of John Marshall in Marbury but was well accepted at the time the Constitution was adopted. All assumed that courts could render a law “void”–indeed that this was their duty–and their judgment would necessarily be binding on the other branches. Nor does this power make the judiciary “supreme.” It merely recognizes the concurrence of a coequal judiciary as the last line of defense of the rights retained by the people. [“In Defense of Judicial Equality,” The Volokh Conspiracy, June 3, 2015]
But when the Supreme Court’s judgments subvert the Constitution or uphold its subversion, the Court doesn’t defend “the rights retained by the people,” it deletes them. Take three examples of economic legislation:
- the Wagner Act, which (despite some softening through subsequent legislation) allows labor unions to force themselves on employers and on employees (except where State legislators and governors have mustered the courage to enact right-to-work laws)
- the Fair Labor Standards Act, which allows the central government to dictate a minimum wage
- the Social Security Act, which, as amended, forces Americans to contribute to a Ponzi-like “retirement savings” scheme, and has led to the nationalization and bureaucratization of health care through Medicare, Medicaid, and their expansion under Obamacare.
In each of these monumentally anti-libertarian cases, the Supreme Court failed to defend the “rights retained by the people.” Neither directly nor by implication does the Constitution empower Congress and the president to do what is done by the three acts cited above; namely:
- to dictate to workers and employers the terms and conditions of employment
- to operate a pension plan and force citizens to join it
- to commandeer the country’s health-care system and dictate the products and services it provides, the prices at which they are provided, and to whom they are provided.
Pardon me while I scoff at the notion that the Supreme Court is “the last line of defense of the rights retained by the people.” Well, it may be the last line of defense, but it has proved time and again to be a porous defense. With defenders like the Supreme Court, the Constitution and the rights of the people need no enemies.
UPDATE 06/25/15: Six of the nine justices of the Supreme Court have just proved my point with their decision in the case of King v. Burwell, wherein the Court upholds subsidies to participants in federally established Obamacare exchanges despite the plain language of the Affordable Care Act. In the words of Justice Scalia, whose dissent was joined by Justices Alito and Thomas:
[T]his Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State”means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
And I most vehemently dissent. Further, I decline to give my allegiance to the government of the United States as it is now constituted, and vow to disobey every unlawful act of that government, to the extent that I can while providing for myself and my family.
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- Michael S. Paulsen, “The Myth of Judicial Supremacy,” The Volokh Conspiracy, May 19, 2015
- Michael S. Paulsen, “The Constitutional Case for Interposition and Nullification,” The Volokh Conspiracy, May 20, 2015
- Ed Whelan, “A New Book Revitalizes Our Understanding of the Meaning of the Constitution,” National Review, May 20, 2015
- Michael Ramsey, “Originalism and Judicial Supremacy,” The Originalism Blog, May 29, 2015
- Ilya Somin, “Defending Judicial Supremacy,” The Volokh Conspiracy, June 1, 2015
- Evan Bernick, “Judicial Equality Is Not Judicial Supremacy: Why the Judiciary Has the Final Say in Constitutional Disputes,” Huff Post Politics, June 1, 2015
- Ed Whelan, “On Originalism and Judicial Supremacy – Part 1” and “Part 2,” National Review – Bench Memos, June 2, 2015
- Michael Ramsey, “Damon Root on Judicial Supremacy,” The Originalism Blog, June 5, 2015
- Randy Barnett, “What Is the Positive Law of the Land after a Supreme Court Holding of Unconstitutionality?,” The Volokh Conspiracy, June 9, 2015
- Michael Stokes Paulsen, “A ‘Judicial Supremacy’ Test Question,” National Review – Bench Memos, June 9, 2015 (Paulsen’s answers to his four-part question are here, here, here and here.)
- Mike Rappaport, “Departmentalism versus Judicial Supremacy — Part I: Some Preliminary Distinctions,” The Originalism Blog, June 12, 2015
- Mike Rappaport, “Paulsen on Departmentalism versus Judicial Supremacy,” Library of Law and Liberty, June 15, 2015
- Mike Rappaport, “Departmentalism versus Judicial Supremacy — Part II: Getting from Departmentalism to Judicial Supremacy,” The Originalism Blog, June 18, 2015
- Mike Rappaport, “Departmentalism versus Judicial Supremacy — Part III: Some Thoughts on the History,” The Originalism Blog, June 22, 2015
- Mike Rappaport, “Departmentalism versus Judicial Supremacy — Part IV: The Argument Based on the Constitution Being a New System,” The Originalism Blog, June 25, 2015
- Mike Rappaport, “Departmentalism versus Judicial Supremacy — Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedents,” Library of Law and Liberty, July 7, 2015
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When Must the Executive Enforce the Law?
More on the Debate about Judicial Supremacy
Another Look at Judicial Supremacy
Freedom of Contract and the Rise of Judicial Tyranny
Is Nullification the Answer to Judicial Supremacy?
The Alternative to Nullification
No Way Out? The Wrong Case for Judicial Review
An Answer to Judicial Supremacy?
The Constitution: Who Has the Last Word?
The Slippery Slope of Constitutional Revisionism The Real Constitution and Civil Disobedience
The Constitution: Original Meaning, Corruption, and Restoration
Our Perfect, Perfect Constitution
How Libertarians Ought to Think about the Constitution
See also “The Constitution: Myths and Realities“.