Constitutional Disorder in the Era of Judicial Supremacy: The Founders' Understanding of the Court
by Matthew J. Franck
July 07, 2009
Judicial supremacy is inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law. The upcoming confirmation hearings for Sonia Sotomayor should force citizens to reconsider the place of the Court in our political life. The first in a two-part series.
With confirmation hearings around the corner for Judge Sonia Sotomayors nomination to the Supreme Court, its a good time to take stock of some fundamental issues regarding the place of the Court in our political life. What should we expect of the justices as they perform their duties under the Constitution? What are the appropriate modes of interaction between the Court and the other branches of our government?
A good place to start is with the Supreme Courts self-understandingthe justices own understanding of their power under the Constitutionwhich turns out to be ahistorical and self-serving. In a unanimous 1958 ruling in Cooper v. Aaron regarding the desegregation of schools in Little Rock, Arkansas, the justices went out of their way to declare as settled doctrine . . . the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. The Court traced this doctrine back to the landmark 1803 decision of Marbury v. Madison and said that its supreme authority to answer constitutional questions, putatively announced in that case, had ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system. The Cooper opinion travelled the rest of the way to the logical conclusion: that Supreme Court decisions are the supreme law of the land, indistinguishable from the Constitution itself and as binding on other political actors as the charter of government they take an oath to uphold.
Nothing the Court has done or said in the last half century has deviated from this understanding of its unrivalled authority to interpret the Constitution, and the Cooper doctrine was a long time gestating before the justices delivered it in 1958. But it is, or ought to be, a shocking view to take of our constitutional order. Judicial supremacythe doctrine that the nations governing charter means whatever a majority of Supreme Court justices say it meansis profoundly inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law themselves. If the Court that gave us Cooper was right about Marbury v. Madison, then we would be entitled to hope that Marbury was wrong about the Constitution. And if Marbury, understood as the Cooper justices put it, was right about the Constitution, we would be entitled to grave misgivings about the goodness of our constitutional order.
The good news is that the Cooper opinion was wrong about Marbury, which in fact set forth a far more limited understanding of judicial power, consistent with the framers republicanism and separation of powers. The bad news is that our political system suffers from the disordering effects of judicial supremacy with no easy or obvious way out of the disorder. Both the good news and the bad require some explaining...
