Monday, September 21, 2015



We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning. 

This mistaken concept of judicial supremacy is often confused with the power of judicial review — the ability of courts to review the constitutionality of laws and regulations that they are asked to apply. It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision. 

Thus, Abraham Lincoln, in his first inaugural address, famously defended his rejection of the Dred Scott ruling: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln’s actions as president were faithful to his words. In defiance of the dual holdings of Dred Scott, he signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens). Lincoln also refused to obey Chief Justice Taney’s order, in Ex parte Merryman, to release a prisoner from military custody. 

The Court did not propound the myth of judicial supremacy until 1958. But when it did so (in Cooper v. Aaron), it tried to concoct a venerable history. It falsely contended that Marbury v. Madison — the landmark 1803 ruling that expounded the power of judicial review — “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” Even more brazenly, without any mention of Lincoln’s compelling refutation (or of Thomas Jefferson’s and Andrew Jackson’s similar contestations), the Court asserted that the concept of judicial supremacy had “ever since [Marbury] been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” 

The myth of judicial supremacy pervades our legal culture, even if it is often invoked only selectively to protect and leverage favored rulings. Although there are some scholars, both on the right and on the left, who challenge it, most lawyers across the ideological spectrum, having suffered the detriment of a modern legal miseducation, embrace it. In our modern regime of government by judiciary, the non-lawyer may readily be pardoned for doing the same. 

But Barnett’s article pervasively conflates the power of judicial review with what he calls the power of “judicial nullification.” As I’ve made clear, the power of judicial review enables courts to decline to apply laws they deem to be unconstitutional. As Chief Justice Marshall stated in Marbury (emphasis added): 

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. 

Nothing in this narrow concept of judicial review means that a court, in declining to apply a law on the view that the law is unconstitutional, thereby wipes the law out of existence. The Founding Era evidence that Barnett offers is entirely compatible with the narrow concept of judicial review. So, yes, federal judges, in the course of deciding cases, “will declare [a law] to be void” (or, as Marshall puts it in Marbury, “entirely void”), “could declare an unconstitutional law void,” will “consider [unconstitutional laws] as null & void,” and so on. But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional.

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