Political Foundations of Judicial Supremacy

The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History

Keith E. Whittington

• Publisher: Princeton University Press
• Year: 2009
• ISBN:
  9781400827756
• Topic: Diritto
• Subtopic: Procedure civili

Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution.
Whittington examines why presidents have often found judicial supremacy to be in their best interest, why they have rarely assumed responsibility for interpreting the Constitution, and why constitutional leadership has often been passed to the courts. The unprecedented assertiveness of the Rehnquist Court in striking down acts of Congress is only the most recent example of a development that began with the founding generation itself. Presidential bids for constitutional leadership have been rare, but reflect the temporary political advantage in doing so. Far more often, presidents have cooperated in increasing the Court's power and encouraging its activism. Challenging the conventional wisdom that judges have usurped democracy, Whittington shows that judicial supremacy is the product of democratic politics.

ONE

The Politics of Constitutional Meaning

THE CONSTITUTION IS OFTEN thought to transcend our current disagreements and to have settled our fundamental political arguments. Its text embodies our most fundamental commitments, those things about which we no longer disagree, such as the content of our “self-evident” truths and “unalienable rights.” The Founding constituted order out of chaos, setting an authoritative higher law over the discord of politics. We may understand the meaning of that law differently than did those who framed it, but the Constitution remains a source of determinate answers to even our hardest political questions.

We may come to disagree about the proper interpretation of even such a Constitution, however. In such cases, the judiciary is thought to become an essential guardian of the constitutional order. By issuing an authoritative interpretation of the Constitution, the judiciary, and especially the Supreme Court, secures order and reestablishes agreement. Without such an authoritative interpreter, the constitutional order would threaten to dissolve back into political discord. Daniel Webster, one of our nation’s most incisive constitutional thinkers, captured this sense of constitutional order well. When faced with the argument that the individual states that formed the Union could determine the terms of the Union and the meaning of the Constitution, Webster recoiled. Could it be possible to leave the meaning of the Constitution not in the hands of “one tribunal” but in the hands of multiple “popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others; and each at liberty, then to give a new construction on every new election of its own members?” Could such a thing be “fit to be called a government? No sir. It should not be denominated a constitution. It should be called, rather, a collection of topics, for everlasting controversy; heads of debate for a disputatious people. It would not be a government. It would not be adequate to any practical good, nor fit for any country to live under.”¹ Constitutions require a single, authoritative interpreter, subject to neither popular pressure nor electoral instability. Constitutional government, Webster and others have argued, requires judicial supremacy.

Webster’s views were controversial in the early nineteenth century, but they are widely accepted now. At least in the United States, judicial supremacy is often regarded as essential to constitutionalism. The legal roots of the current consensus are often traced to Chief Justice John Marshall. In his 1803 opinion in the case of William Marbury v. James Madison, Marshall, having characterized the Constitution as the “fundamental and paramount law of the nation,” importantly declared, “It is emphatically the province and duty of the judicial department to say what the law is.”² This was a strong claim to judicial authority over the interpretation of constitutional meaning. The judiciary “must of necessity expound and interpret that rule.” It was the “very essence of the judicial duty” to determine the meaning of the Constitution and to lay aside those statutes that contradicted that fundamental law.³ “The Constitution is either a superior paramount law” subject to judicial interpretation and application, or it is “absurd.”⁴

Marshall did temper this strong claim, however. In the context of the time, it was clear that other political institutions had been actively engaged in interpreting the Constitution and that those interpretations were broadly accepted as authoritative. The Constitution, Marshall recognized, was not in the hands of the judges alone. He concluded his opinion more modestly, arguing that surely “the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.” How could a judge uphold his own duties to the Constitution if its text “is closed upon him, and cannot be inspected by him?”⁵ The courts did not so much have authority over the Constitution and over other political actors as they had the obligation not to “close their eyes on the Constitution, and see only the law.”⁶

By the mid–twentieth century, the justices of the Supreme Court had abandoned such tempering statements. In 1958, Chief Justice Earl Warren, speaking for a unanimous court, offered his own interpretation of John Marshall’s famous sentence declaring the judicial duty to “say what the law is.” In response to state government officials who questioned the judicial authority to define constitutional meaning, the chief justice noted that “it is only necessary to recall some basic constitutional propositions which are settled doctrine.”⁷ The Warren Court instructed, “This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.” It concluded, “Every state legislator and executive and judicial officer is solemnly committed by oath pursuant to Art. VI, cl. 3, ‘to support this Constitution. ”⁸ Four years later, the Court was obliged to again explain to the state governments that the Supreme Court is the “ultimate interpreter of the Constitution.”⁹ Within a decade the Court had repeated those words first to the Congress and then to the president, and insisted that the power to interpret the meaning of the Constitution “can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power.”¹⁰

Constitutional maintenance, in this view, requires an independent judiciary with the authority to articulate the meaning of the Constitution and have all other political actors defer to those judicial interpretations. Without judicial supremacy, government officials would be free to ignore constitutional requirements with impunity. The Court has recently employed another favored quote from Marbury to that effect, arguing in Boerne that “if Congress could define its own powers by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’ It would be ‘on a level with ordinary legislative acts, and, like other acts, … alterable when the legislature shall please to alter it.’ ” The Court concluded, “Under this approach, it is difficult to conceive of a principle that would limit congressional power.”¹¹ Implicit in this argument was the equation between the “Fourteenth Amendment’s meaning” and the Court’s own recent interpretation of that text. The Court later clarified what was at stake in the case, offering that “our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches,” in particular current judicial precedent.¹² It is for the Supreme Court to “speak before all others for [the nation’s] constitutional ideals.”¹³ The Constitution cannot be maintained as a coherent law unless the Court serves as its “ultimate interpreter,” whose understandings of the constitutional text supersede any others and which other government officials are required to adopt.

Those who advocate judicial supremacy, including the Court itself, tend to treat it as a matter of normative directive and accomplished fact. The Court has claimed that judicial supremacy follows logically from the constitutional design and that since Marshall’s declaration of judicial independence “that principle has ever since been respected by this Court and the Country.”¹⁴ But of course this was wishful thinking on the part of the justices. Their very assertion of the principle of judicial supremacy in Cooper came in response to southern politicians denying that the Court had the authority to bind the states to its own controversial constitutional interpretations. American history is littered with debates over judicial authority and constitutional meaning. Although powerful federal officials have usually acceded to the Court’s claims, judicial authority has often been contested by important segments of the populace, from abolitionists to labor unions to segregationists to pro-life advocates.

If judicial supremacy cannot simply be assumed to exist, then it must be politically constructed. This book is concerned with the process by which judicial supremacy has been constructed over the course of American history. Rather than treating the judicial authority to determine constitutional meaning as a matter of legal doctrine, this book treats it as a political problem to be overcome. It asks why other powerful political actors might recognize such an authority and defer to the judiciary’s particular interpretations of the Constitution. It considers some of the political incentives facing elected politicians and how they often lead politicians to value judicial independence and seek to bolster, or at least refrain from undermining, judicial authority over constitutional meaning. An examination of the political considerations of elected officials sheds light on how constitutions are constructed and maintained in politically fractious environments. For constitutions and institutions like judicial review to exist in historical reality and be more than imagined moral abstractions, there must be political reasons for powerful political actors to support them over time. Fortunately, for judicial review, there are such reasons.

The struggle for judicial authority has occurred within our constitutional framework, not in opposition to it. The judiciary is not the sole guardian of our constitutional inheritance, and interpretive authority under the Constitution has varied over time. At some points in American history, the Court has been able to make strong claims on its own behalf, as it did in Cooper, and others have been willing to recognize that authority. At other points, however, elected officials have strongly asserted their own authority to interpret constitutional meaning and sharply challenged the judiciary’s monopoly on constitutional wisdom. For those who view judicial supremacy as an “indispensable feature of our constitutional system,” such challenges can only be regarded as deeply threatening to cherished constitutional values. An examination of the reasons for the periodic waning of judicial authority, however, provides a more nuanced view of constitutionalism. Within the American context, judicial authority has often waned precisely when constitutionalism is being taken most seriously in the larger political community.

This book is particularly concerned with how the separation of powers and the structure of American political parties have affected the institutional struggle for constitutional leadership over the course of American history. Presidents—in their capacity as heads of the government, as national political leaders, and as national party leaders—have been particularly important in determining the relative authority of the Supreme Court to say what the Constitution means. Presidents may challenge the supremacy of the Court as a constitutional interpreter, or presidents may defer to the supremacy of the Court on constitutional matters and encourage other political actors to defer also. The political incentives that lead presidents to choose either to challenge or to defer to the Court’s constitutional leadership have shaped both the substance of our constitutional understandings and practices and the place of the judiciary within the constitutional order. Through much of American history, presidents have found it in their interest to defer to the Court and encourage it to take an active role in defining the Constitution and resolving constitutional controversies. Even before the Supreme Court claimed that it was the ultimate interpreter of the Constitution, political leaders had already asserted the same thing. The strategic calculations of political leaders lay the political foundation for judicial supremacy.

THE THEORY OF JUDICIAL SUPREMACY

This book is primarily concerned with judicial supremacy, not judicial review per se. These two concepts should be distinguished. Although judicial supremacy entails judicial review, judicial review need not entail judicial supremacy. The authority of the Supreme Court to exercise the power of judicial review is potentially controversial in its own right. Certainly the argument that John Marshall offered on behalf of the Court’s power of judicial review in Marbury is problematic.¹⁵ The basic concept of judicial review is readily recognizable, however, even divorced from any particular justificatory theory. The doctrine of judicial review refers to the authority of a court, in the context of deciding a particular case, to refuse to give force to an act of another governmental institution on the grounds that such an act is contrary to the requirements of the Constitution. Judges, in this reading, are the agents of the people, not merely of the legislature. As such, they have an independent responsibility to adhere to the mandates of the Constitution, even when they contradict the instructions of the legislature. The power of judicial review as exercised by American courts can be further distinguished from the power of abstract constitutional review as exercised by some European courts.¹⁶ The power of judicial review only authorizes courts to refuse to apply a law in a particular case in a manner that contradicts the terms of the Constitution. Judicial constitutional decisions arise only in the context of specific controversies, and the broader applicability of those decisions is a function of precedent and common-law reasoning. By contrast, the power of abstract constitutional review allows a constitutional court to directly evaluate the text of a law prior to its application, or even its formal adoption, for its consistency with constitutional requirements and to exercise a veto to block the promulgation of the law or to issue instructions to the legislature as to how to avoid the constitutional difficulty. The possibility of abstract review clarifies the distinctly “judicial” nature of American-style constitutional review, which arises only in the context of normal judicial proceedings and develops through common-law m...