In the 1780s, our Founders feared many things about the tenuous future of the republic they were creating, but a tyrannical judiciary that acts as supreme to the other branches wasn’t one of them. They would have laughed at the spectacle of two parties at each other’s throats not over the balance of power in the Senate, but over how that balance of power will determine the tilt of the Supreme Court, where the true power resides these days.
Regardless of whom Trump nominates to fill the latest Supreme Court vacancy, both sides will vociferously question the nominee over his or her views of certain court precedents. But we could go a long way toward cooling some of this political acrimony (and fixing our republic to boot) if we focused on just one court precedent: The Supreme Court’s own declaration, during the Warren era, that its decisions over the Constitution are exclusive, final, and universally binding over the other branches of government. It’s this legal fiction that is fueling the high-stakes fights over every other precedent. If we all agreed to end judicial supremacy, control over the other two branches of government – with their more robust powers to affect their respective interpretations of the Constitution – would matter much more than control over the Supreme Court.
Judicial supremacy is an absurd and tyrannical fiction
In a 2017 report, the Congressional Research Service observed that “early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” Members of Congress weren’t so complacent in their duties and, as the CRS observed, never sat idly allowing the courts to wield “a final or even exclusive role in defining the basic powers and limits of the federal government.” They subscribed to Madison’s view in Federalist #49 that “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” He emphatically believed that “each [department] must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.”
It wasn’t until Cooper v. Aaron (1958), during a time when the high court was reinterpreting the Constitution beyond recognition, that it brazenly declared “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” as “a permanent and indispensable feature of our constitutional system.”
While the case itself dealt with desegregation of schools in Arkansas, an outcome we all support, the court grabbed power for itself by noting that the court doesn’t only bind the parties in an individual case but prevents states from doing anything to “indirectly” undermine the outcome and precedent of the case “through evasive schemes.” In other words, the judiciary is really a legislature and passes “laws” with majority opinions that are self-executing and universally binding even on non-parties and the other branches of government. As the court wrote emphatically at the end of the opinion in sly and gratuitous dictum, “The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.”
Thus was born the notion that the court can declare abortion, gay marriage, early voting, voting without photo ID, and affirmative action a part of the Fourteenth Amendment and have it be regarded by the body politic as “the law of the land.”
Former Attorney General Ed Meese, in his famous bicentennial lecture on the Constitution, lambasted this opinion as a “faulty syllogism of legal reasoning” that would have “shocked men like John Marshall and Joseph Story,” conjuring up the faulty logic of Stephen Douglas in promoting Dred Scott as the “law of the land.” He rightfully observed that this logic was “at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.”
Several years after Cooper v. Aaron, the Brennan-Warren court issued another doozy in Baker v. Carr, declaring redistricting a justiciable issue through which the courts can intervene and serve as the final arbiter. A few years later, in Powell v. McCormick, Justice Warren declared the court “the ultimate interpreter” of the Constitution, even in an internal issue in the House of Representative over the qualifications of one of its members. Since that era, the courts have become the final arbiter of every abstract, hypothetical, and notional claim of a nakedly political grievance, even without an individual or legitimate justiciable complaint.
And in very recent years, the courts have assumed control over issues of immigration and national sovereignty, the one area even the Warren court avoided. We now have illegals openly invading our country with the ability to distort our census, citizenship, and public benefits, and yet the other branches act as if they are impotent in stopping it because of lower courts, which are themselves violating Supreme Court precedent.
Our biggest political crisis: Who interprets the Constitution?
Which brings us back to the pending imbroglio over the Supreme Court nominee. The reason the two parties are tearing each other apart over picking justices and defending court precedents, while diminishing the importance of elections to nothing more than who determines the judicial picks, is because of that one court precedent, the most pernicious of all. If the courts are the sole, final, and universal arbiter of constitutional interpretation, nothing else matters in our republic beyond judicial picks. Everything depends upon getting five votes on the Supreme Court, and we must all know ahead of time where the nominees stand on the critical issues and which precedents they would uphold. Americans of all ideological persuasions should reject this tyrannical absurdity.
The notion that the courts – and only the courts – determine the Constitution is the single biggest political crisis facing this nation. Rather than fight exclusively over the nominee, now would be a great time to foster a national discussion and hopefully an agreement in Congress to return to republican constitutionalism, which recognizes constitutional interpretation in each of the three co-equal branches.
Now is an auspicious time for conservatives to push for an end to judicial supremacism. Liberals wrongly fear that the courts will now turn super-conservative and are already contemplating means of fighting back against the traditional judicial system. Conservatives should embrace this discussion. As I’ve noted ad nauseum since the founding of this column and in my book, Stolen Sovereignty, judicial supremacy will never work for conservatives in the long run; it will always be a liability. But now, as Democrats fear losing the courts, we have our best opportunity to resolve to overturn the precedent of judicial supremacy.
What would such a grand bargain look like?
If Democrats fear the courts clipping the wings of the unions, permitting more direct donations to candidates, or overturning some of their sacred precedents, they can use the political process in the states and the other branches of the federal government to push back against those decisions, as I have detailed previously. But by the same token, conservatives can do the same on marriage, public prayer, abortion, election law, and immigration.
Ultimately, it’s the political branches of government – with their powers of the purse and enforcement – that are tasked with executing the law. When answering the question of “what is to control Congress when backed and even pushed on by a majority of their Constituents” to enact something unconstitutional, Madison said that ultimately the power resides with the people. “Nothing within the pale of the Constitution but sound argument & conciliatory expostulations addressed both to Congress & to their Constituents.”
Yes, the Supreme Court can always be used as one avenue for pushing a specific constitutional interpretation, particularly for specific cases and controversies, but it should by no means be the only and final avenue. That is the core difference between judicial review and judicial supremacy. But the Founders purposely didn’t give the judiciary any tools to enforce its decisions, because they relied solely on sound argument resonating with the people to pressure the other branches into acquiescence. As Eleventh Circuit Judge William Pryor once said:
Alexander Hamilton explained in Federalist No. 78 that judges exercise “neither FORCE nor WILL, but merely judgment.” Hamilton’s point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.
At the end of his epic dissent in Obergefell, Scalia ominously warned, “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.” Scalia was clearly signaling to the other branches to re-enter the playing field of constitutional interpretation and use their more robust powers to push back.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.