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Judicial Co-Equality Is Not Judicial Supremacy: Why the Judiciary Has the Final Say in Constitutional Disputes

06/01/2015 05:31 pm ET | Updated Jun 01, 2016
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The concept of "judicial supremacy" has been all over the news lately, as the Supreme Court prepares to decide several controversial cases involving (among other matters) same-sex marriage and Obamacare. In several recent articles, Michael Paulsen, Michael Ramsey, Ilya Somin, and Ed Whelan have discussed the concept, confronting fundamental questions about judicial review in the process. Ramsey and Somin argue that officials in other branches of government must obey judicial decisions invalidating their laws or policies and must follow the rules laid down in those decisions in similar future cases; Paulsen and Whelan reject this view, contending that no government officials are actually bound by the views of any of the others.

While my views are substantially identical to those of Ramsey and Somin, I believe that certain aspects of the debate are being framed in the wrong terms. The fundamental question presented by Paulsen and Whelan's position is not whether the judiciary is superior in its interpretation of the Constitution or in any other respect but whether it is inferior to the other branches and disabled from preserving the rule of law. Put differently, their rejection of judicial supremacy is in fact a rejection of judicial co-equality.

The Framers' plan of government proceeded from certain basic fundamental premises about human nature and the nature of government. Though the Framers held a high opinion of human beings' faculties and capacity for virtue and industry, they recognized, following John Locke, that men are not impartial judges of their own conduct. Indeed, Locke believed that one of the reasons that the enjoyment of liberty is so uncertain absent government is that there is no "known and indifferent judge" to settle disputes in accordance with "settled standing rules, indifferent, and the same to all parties." James Madison alludes to the problem of self-interested judgment in his discussion of the "mischiefs of faction" in Federalist 10, stating that "[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." Lest one think that the problem is solved once a representative government is established, Madison urged that, on the contrary, "[w]ith equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time.... Justice ought to hold the balance between them."

Of course, Madison did not believe that the problem of self-interested legislative behavior could ever be entirely solved. How, then, is the balance of justice to be maintained? The American fear that republican governments exhibited a tendency toward tyranny led to a need for a check on both legislative and executive excesses. There is substantial evidence that the Framers authorized an independent judiciary to evaluate the constitutionality of the government's actions using tried-and-true, logic-guided methods of inquiry, and that such judicial engagement was seen as part and parcel of judicial duty. As Professor Somin points out, Alexander Hamilton emphasized in Federalist 78 that "'the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority'" by the Constitution. They could hardly fulfill that duty if they reflexively deferred to the political branches concerning constitutional questions.

To say that the judiciary is duty-bound to say "what the law is" and should not simply rubber-stamp the actions of the other branches is not to say that the other branches have a duty to obey its decisions. But holding the contrary position would make the judiciary an inferior branch and risk creating an uncertain and dangerous state of affairs.

If the judiciary's say is not final -- if it can simply be ignored by the other branches in cases of constitutional disagreement -- it is denied a prerogative that every other branch possesses. Legislatures, after all, cannot be compelled to pass statutes, and executives cannot be compelled to sign them. Both are obliged to engage with the Constitution and carefully consider whether a proposed measure is consistent with its terms. If they decide that the answer is "no," that is the end of the matter.

On Paulsen and Whelan's account, however, the judiciary's "no" does not end the matter. Quite the contrary. On their telling, the Supreme Court's decision that an act of government is unconstitutional binds only the individual parties in a given case. The other branches must decide for themselves whether they will accept and follow the rationale of the decision. As a result, the political branches are, practically speaking, allowed to be judges in their own cause, and a state of affairs even more uncertain and more threatening than the state of nature looms -- one in which those bent on pursuing morally illegitimate ends are far more capable of accomplishing them than they would be absent any government at all. To borrow Locke's concept, the known and indifferent judge is available, but when he is most urgently needed, he is reduced to issuing what are little more than advisory opinions.

When the political branches are at odds with another, we get a glimpse of the dangers that Locke perceived in the state of nature and that the Framers perceived in representative government -- and we have a pressing need for a conclusive determination of what the "settled, standing rules" set forth in the Constitution require. To argue, as Ramsey, Somin, and I have, that the judiciary has the authority, and, indeed, the duty, to nullify unconstitutional actions, and that the other branches must adhere to its judgments, is not to make the judiciary supreme over the other branches but co-equal. Paulsen and Whelan would deprive the judiciary of a power that every other branch possesses -- that is, the power to serve as a check against the exercise of potentially unconstitutional government action -- and prevent it from guarding against a grave danger that it was designed to serve as a bulwark against.