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Judicial Equality and Its Critics: Dispelling the Myth of Majoritarianism

06/08/2015 07:56 am ET | Updated Jun 08, 2016
KAREN BLEIER via Getty Images

Do we have three co-equal branches of government, or does the judiciary occupy second-class status? Following up on an outstanding post from Professor Randy Barnett, who argues that the courts have the authority to invalidate unconstitutional government actions and to bind the other branches to their judgments (a position which I defended here), and a response from Ed Whelan in which he denies that the judiciary possesses this authority, I'd like to make three points to clarify my own position and identify what I believe to be the false majoritarian premise upon which Whelan's position rests.

1. "Judicial equality" is a not a euphemism for "judicial supremacy."

On Whelan's account, the position advocated by Professor Barnett and myself (which we have termed "judicial co-equality" or simply "judicial equality") is properly termed "judicial supremacy." In an initial response to Professor Michael Ramsey, Whelan defined "judicial supremacy" as the belief that "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--even if it is in clear conflict with the actual meaning of the Constitution--until such time as five justices revise it or a constitutional amendment overrides it." In his recent response to Professor Barnett, Whelan contends that "judicial supremacy" is not a "deliberately loaded pejorative term" but an accurate description of a pernicious and widely-held view of judicial power. In support of this claim, he cites the Court's assertion (in dicta) in Cooper v. Aaron (1958) that "the federal judiciary is supreme in the exposition of the law of the Constitution" and points out that Professor Ramsey (and Professor Ilya Somin) embrace the term.

Indeed, Professors Somin and Ramsey have expressly defended "judicial supremacy." But neither of them defends judicial supremacy as defined by Whelan. Barnett, Ramsey, Somin and I have argued that the judiciary, like the other branches, has a duty to interpret and adhere to the written Constitution; that it cannot compel the other branches to exercise their powers in a manner that they deem to be unconstitutional; and that it can effectively check government actions that it deems to be unconstitutional. This is not supremacy; it is equality. Whelan's view--that, alone among the branches, only the judiciary's concurrence concerning constitutionality is unnecessary for legislation to be valid--would render the judiciary a subordinate rather than a coordinate branch.

2. Defenders of judicial equality need not defend Dred Scott, nor condemn Lincoln.

Whelan makes much of Abraham Lincoln's defiance of the Supreme Court's decision in Dred Scott v. Sandford (1857), claiming that defenders of judicial equality must necessarily "join forces with Chief Justice Taney" and that they must denounce Lincoln. Both of these claims are false.

First, judicial equality does not entail the endorsement of any particular decision, least of all Taney's tortured, disingenuous, singularly unpersuasive effort to transform the Constitution into a proslavery document. The Supreme Court can and does err in constitutional interpretation (indeed, certain cases, like Dred Scott, warrant the charge of deliberate distortion of constitutional meaning), and should be criticized when it does so.

Second, as Professor Somin points out, judicial equality does not entail unthinking official obedience to judicial decisions. Lincoln's response to Dred Scott provides an instructive example of legitimate executive defiance. He made no effort to free Dred Scott, but he rejected the principles articulated in the Court's decision in word and deed from the early days of his presidency--for instance, issuing patents and passports to free blacks, together with an opinion by Attorney General Edward Bates declaring that, in the understanding of the Lincoln Administration (and contra Dred Scott), free blacks born in the United States were in fact citizens of the United States. But there is a substantial difference between affirming that officials under certain circumstances may legitimately defy a particular judicial decision and affirming that they are not generally obliged to adhere to judicial determinations that acts of government are unconstitutional. Lincoln's moral integrity and prudence in the face of tyranny is inspiring--he was prepared to be judged for the rectitude of his intentions and his understanding of the Constitution was ultimately ratified in the Reconstruction Amendments. However, as emergencies are not good starting points for ethics, constitutional crises are not good starting points for thinking about how our legal order is generally supposed to operate. Lincoln understood this well.

3. The myth that needs to be dispelled is not "judicial supremacy" but majoritarianism.

Whelan's subordination of the judiciary, taken together with his endorsement of reflexive judicial deference in constitutional cases, suggests the influence of a false premise about our constitutional order. If the Constitution prioritized majority rule over individual freedom, it would be sensible for judges to be deferential to assertions of power by elected officials and for the judiciary to be disabled from effectively checking the political branches.

But this majoritarian premise is false. It is, indeed, a myth, and one that is far more pernicious than the (mythical) myth of judicial supremacy, and far more ancient. Lincoln confronted a particularly deplorable expression of it in his debates with Stephen Douglas, who stated that he did not care whether slavery got voted up or down in federal territories, as the Constitution left that decision to the democratic process. In an 1854 speech in Peoria, Illinois, Lincoln rejected Douglas' majoritarianism: "The doctrine of self government is... absolutely and eternally right--but it has no just application, as here attempted... [T]he just powers of governments are derived from the consent of the governed. Now the relation of masters and slaves is... a total violation of this principle."

Lincoln believed that the Constitution rested upon the moral premises, according to which no one (or group of people) is entitled to deprive others of their rightful freedom. As Professor Hadley Arkes observes in a magnificent recent essay, the logic of these "libertarian premises" demands that "the law... bear the burden of justification when it would displace the freedom of a person to pursue his own ends." That logic requires consistent judicial engagement--a genuine, impartial effort to determine the truth concerning the constitutionality of the government's actions in every constitutional case. It also demands judicial equality. The institution best-suited to protect people's freedom from overbearing majorities and ambitious executives must have the authority to do so.