THE HIGH (AND MIGHTY) COURT: Judicial Supremacy

Monday, October 27, 2003

Did the framers of the United States Constitution intend that the Supreme Court be the sole and final interpreter of the Constitution, with the power to place binding decisions on the executive and legislative branches? Or did they intend that the Supreme Court have the final say only on the legal cases that came before it, thus permitting the executive and legislative branches to have wide latitude in interpreting the Constitution for themselves? The former view, that of judicial supremacy, is the dominant view of the Supreme Court today, accepted, for the most part, both within government and in society more generally. Is this view supported by the Constitution? If not, why and when did it arise? Should we support judicial supremacy, or is it time to rein in the Supreme Court?

Recorded on Monday, October 27, 2003

Peter Robinson: Today on Uncommon Knowledge: Mirror, mirror on the wall, who's the most powerful branch of all?

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: when it comes to interpreting the Constitution of the United States, who says the Supreme Court should have the final say?

When they drafted the Constitution, did the framers intend for the Supreme Court to be the sole and final interpreter of the document, with the power to make binding decisions on the President and Congress? Or did the framers intend instead for the Supreme Court to have the final say only in the particular cases that came before it, leaving the other two branches, the Executive and the Legislative, wide latitude to interpret the Constitution for themselves? The former view, known as judicial supremacy, is certainly the view most widely held today, yet a number of legal scholars are challenging it. So, should we continue to support judicial supremacy or is it time to rein in the Supreme Court?

Joining us, two guests. Lawrence Alexander is a professor of law at the University of San Diego. Robert George is a professor of jurisprudence and politics at Princeton University.

Title: Masters of Our Domain

Peter Robinson: In the 1958 case Cooper v. Aaron, the Supreme Court for the first time, made the sweeping assertion that "The federal judiciary is supreme in exposition of the law of the Constitution." Presidents, members of Congress, governors, state officials--all, the Court held, must submit to the constitutional interpretations of the Supreme Court. As a matter of legal reasoning and American history, was the Supreme Court correct in making that assertion?

Lawrence Alexander: Let me just give it a qualified yes.

Peter Robinson: Qualified yes? Robert?

Robert George: Qualified no.

Peter Robinson: And off we go. Marbury v. Madison, 1803. According to the accepted account, there seems to be no choice here but to set this up by going through the facts of the case. The power of judicial review, that is the authority of the federal judiciary to invalidate acts of the President and Congress on grounds that they violate the Constitution, dates from the 1803 case Marbury v. Madison. After the election of Thomas Jefferson but before leaving office, President John Adams nominates and the Senate confirms a number of men to judgeships and other positions. When he becomes President, Thomas Jefferson, at this time of course, a bitter enemy of Adams, orders his Secretary of State, James Madison--these were impressive people by the way--not to deliver the commissions of those Adams had nominated. One of these men, William Marbury, sues the Secretary of State, asking the Supreme Court to order the Secretary of State to give Marbury his commission and at about the same time, Congress passes a law giving the Supreme Court the authority to do just that. Chief Justice of the Supreme Court, John Marshall, refuses to do so and says that law that congress just passed is unconstitutional. And here's what it comes down to--this one sentence from Chief Justice John Marshall--"It is emphatically the province and duty of the judicial department to say what the law is." Robert, why doesn't that settle it?

Robert George: Well, it doesn't settle it because the Supreme Court is simply, in the 1958 case of Cooper, relying on that sentence to mean that the Supreme Court gets the final word every time a case comes before it on matters of constitutional interpretation. And Marbury simply won't bear that broad or sweeping an interpretation of judicial power. Marbury could stand for something much, much narrower. It could simply stand for the proposition that the Supreme Court is a co-equal, co-sovereign branch of government, has the right to determine for itself how it will act in its own affairs, whether, for example, it will exercise jurisdiction it believes has wrongly been conferred on it by the Congress, wrongly in the sense of unconstitutionally been conferred. Perhaps all that Chief Justice Marshall was saying in the Marbury case was that as we interpret the Constitution, we're not entitled to exercise this jurisdiction. Therefore, we won't exercise it. That's entirely compatible with allowing the Congress in its own sphere or the President in his own sphere, to make their own constitutional judgments.

Peter Robinson: So Marshall--this could be interpreted as saying, in effect, by John Marshall, look Congress, you come to your own decision about what you think is and isn't constitutional but as for us on the Court, we think that this law was mistaken?

Robert George: And in our actions, we are going to follow our own constitutional interpretation. That's compatible with the Court believing that in your actions, members of Congress or President, you must follow your interpretation of the Constitution.

Peter Robinson: Why did the Founders leave the entire subject of judicial review out of the Constitution?

Title: Papas Don't Preach

Peter Robinson: Thomas Jefferson condemns the decision in Marbury, arguing later in the famous letter, that it would place Americans--that is, the Supreme Court taking this power of judicial review to itself--would place Americans "under the despotism of an oligarchy." The Supreme Court becomes an oligarchy to Thomas Jefferson. The document, the Constitution itself, is silent on this question of judicial review. But we've got Thomas Jefferson and John Marshall, both members of the founding generation coming to differing conclusions. What did the Framers intend? What can the constitutional debates tell us? What was in the air at the time?

Robert George: Well, you're absolutely right that there's no mention of the power of judicial review in the Constitution. Now that led some people then to conclude that since the national government is a government of delegated powers and no power had been delegated to the national judiciary to review statutes, state or federal, for constitutionality, the courts didn't have that power. But an awful lot of the framing or founding generation including significant people like Alexander Hamilton believed that the power of judicial review was implicit in the Constitution.

Peter Robinson: This is what Marshall's picking up on?

Robert George: Yes, Marshall is very much in the Hamilton camp on this. And he has the view that if the Constitution is to be supreme, then it's got to be interpreted and the courts have at least some scope for the interpretation of the Constitution.

Peter Robinson: The Constitution is the supreme document. The Supreme Court is the supreme court…

Robert George: Marshall doesn't say that.

Peter Robinson: Therefore it follows--it's implicit, it's easy to tease out…

Robert George: Well, judicial review is implicit, Marshall believes. But I don't think you can stick Marshall with the view that the Supreme Court is supreme in constitutional interpretation in all cases. You can't give him the view that the Court claims for itself in the Cooper case in 1958.

Lawrence Alexander: Before we get to the Cooper--just with respect to whether judicial review is--was intended by the Framers.

Peter Robinson: Yes, right.

Lawrence Alexander: While there is nothing in the document that, you know, is definitive on the point, I think both in terms of the general understanding of the Framers' and Hamilton's expressed views on this, but also in implications that are pretty strong from things that are in the Constitution, I think it would have been commonly understood that the judicial power was to decide cases according to law. The judicial power was given to the federal courts. And that Article VI tells you when you want to find out what the law is, where to go. And the Constitution is there. Now there are people--there are modern people who think that the Constitution was supposed to function as a political document, not a strictly legal document. So it wasn't really law in the ordinary sense. I think the weight of the evidence is against that view.

Peter Robinson: If you examine the records such as they are that we have of the constitutional debates, the question is never raised, it's raised but only obliquely, it's raised directly and we have a record of what they intended? What category does this fall into?

Robert George: It's raised soon after. There's an important senatorial debate--a debate in the United States Senate about it. Larry will have to check me on the date, I believe 1802 or 1803 and you find…

Peter Robinson: I will not correct you so…

Robert George: …members of the Senate on opposing sides of the question.

Peter Robinson: So is this an oops? They just didn't think of it at the constitutional debates or was this one of those moments of creative silence and ambiguity? It's hard to believe that these great throbbing minds who were looking around corners that didn't appear to us until the twentieth century--they saw everything it seems. Why are they silent on this? What's going on?

Lawrence Alexander: I'm not a constitutional historian but my understanding is that the practice of judicial review was something that pre-existed the Constitution. It existed in the colonies themselves. It would have been a familiar practice.

Peter Robinson: So it didn't require a comment.

Peter Robinson: From Marbury v. Madison, let's move ahead to 1857 and only the second exercise of judicial review in American history.

Title: Chattel Call

Peter Robinson: Dred Scott is a slave in Missouri whose master takes him into the free state of Illinois and the free territory of Wisconsin. Dred Scott then brings suit back in Missouri claiming to be free by virtue of having resided in a free state and a free territory. The Supreme Court holds--in a breathtaking decision, they hold all kinds of things--that African Americans lack the right to become citizens and therefore, the right to bring suits in federal courts in the first place, that congress lacked the constitutional authority to forbid or abolish slavery in federal territories and that since slaves represented personal property protected by the Constitution, the Missouri compromise--this is the measure of course, under which Missouri's brought into the union as a slave state, coupled with Maine which is brought in as a free state--is itself unconstitutional. Abraham Lincoln denounces Dred Scott right away on what grounds?

Robert George: On the ground that the Court had usurped the power of Congress. It had overstepped its bounds and was claiming for itself a power to tell the other branches of the national government what they could and could not do in their own affairs.

Peter Robinson: Okay. So as late as 1857, it is a current and acceptable idea to say that Congress gets to decide what is and is not constitutional for Congress to do? Right?

Lawrence Alexander: I don't read Dred Scott that way.

Peter Robinson: Lincoln was wrong?

Lawrence Alexander: Lincoln's attack on what the Court did in Dred Scott--it's a question of how you, you know, what the attack is leveled at.

Peter Robinson: Let me give you the attack. Lincoln's first inaugural address, "I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court," point against you, "nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit. At the same time," point against you, "the candid citizen must confess," confess, excuse me, "that if the policy of the government 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."

Lawrence Alexander: Let me make--okay. Well good, I'm glad you got to the Lincoln quote.

Peter Robinson: And as a matter of legal reasoning and legal history, Lincoln is wrong?

Lawrence Alexander: It turns out Cooper v. Aaron rejects that narrow…

Peter Robinson: What's your view?

Lawrence Alexander : As I said at the beginning, qualified yes--qualified support for Cooper v. Aaron.

Peter Robinson: So you are saying that this wonderful statement from Abraham Lincoln's first inaugural address is at least in a qualified way, mistaken?

Lawrence Alexander: Yes.

Peter Robinson: Robert?

Robert George: Seems sound to me. Dred Scott alas, contrary to the Constitution as far as Lincoln can tell, has got to be delivered back into slavery…

Peter Robinson: Right.

Robert George: …because he was a party to the case and as a--there's a court order. But Lincoln's argument is that I, as the executive of the nation who swore an oath to the Constitution and not to Chief Justice Roger Brooke Taney's interpretation of it, must act on my own judgment in all other cases and not treat a rule as a binding principle. So I'll give you an example. As President…

Peter Robinson: During the war--what I'd like is the way Lincoln lived up to his own assertions there.

Robert George: Well I'll tell you how. The Dred Scott decision held not only that Dred Scott had to go back into slavery. It held that blacks, even free blacks in the United States could not be citizens. Lincoln refused to be bound by that ruling. He treated free blacks as citizens by doing things such as issuing passports to them. He also supported action in the congress to restrict slavery in the territories which was plainly in defiance of the Dred Scott

Peter Robinson: Now is it your assertion that Presidents ought to behave that way even today?

Robert George: Within the bounds of prudence, I believe that they've got to act on the basis of their own constitutional interpretations in many, many cases.

Peter Robinson: Robert opposes judicial supremacy but without it, how would conflicts over the meaning of the Constitution be settled?

Title: My Way or the Beltway

Peter Robinson: Larry Alexander, "Without authoritative settlement, most constitutional issues will remain open in the sense that any governmental actor who disagrees with the Supreme Court decision will feel free legally and morally to ignore that decision. Somebody in the government has to have the final say or chaos will ensue.

Robert George: I don't believe that's true. If somebody in the government doesn't have the final say, what happens is politics.

Peter Robinson: Okay, let's give you a test case. United States v. Nixon, Watergate crisis. This is perhaps the most dramatic constitutional crisis in our lifetimes. Congress says you hand over those tapes. The President says nothing doing. And under Robert George's interpretation of the Constitution, the Supreme Court doesn't have the right to tell Nixon to hand over the tapes.

Robert George: It certainly has the right to tell Nixon. The question is whether Nixon has an obligation to comply. And if so, what kind of obligation is it that Nixon has to comply? If a President honestly believes that the prosecution of his own constitutional duty requires him not to comply because the Court is behaving unconstitutionally, then in my judgment, he's got to stand by his constitutional judgment. Now that very well may cost him his presidency. Either reelection if he's in his first term or maybe forced out of office because of public sentiment or he may be unable to prosecute the rest of his program.

Peter Robinson: Let me ask you this…

Robert George: At the end of the day, Peter, it seems to me in cases like this the people will be the protectors of their own Constitution.

Peter Robinson: Let me pursue it one step further however. The President is the Commander in Chief of the Armed Forces. Under your interpretation in a constitutional crisis like Watergate where congress says one thing, the President says the other, doesn't the President in some sense, ultimately win because he has the guns behind him? Wouldn't your interpretation take us down the road toward a Latin American situation where the Chief Executive and the Army are the defenders of the Constitution and so forth?

Robert George: No.

Peter Robinson: No. You're confident of that?

Robert George: I'm very confident of that. Look…

Peter Robinson: You jump in and get your shot.

Robert George: At the end of the day, power needs to be checked. And I agree with that. And the Supreme Court by exercising judicial review is an important check on presidential and legislative power. But there has to be a check on judicial power as well. This is one of the things that Lincoln was concerned about. Lincoln knew that courts could behave unconstitutionally. They're composed of human beings just like other institutions. And by…

Peter Robinson: The check is the ballot box, ultimately?

Robert George: Not on the Supreme Court.

Lawrence Alexander: Let's look at some other crises. Suppose that the Supreme Court comes out with a controversial interpretation of what an unreasonable search and seizure--perhaps they strike down a bit of surveillance by the Justice Department under the Patriot Act as unconstitutional. According to Robert's interpretation here, well if there were a specific case that came before the Court involving this, you could throw out the evidence gathered but the Court would have no authority to extend that to any other case. So John Ashcroft could say well the Supreme Court has spoken but, you know, I think it's an unreasonable interpretation of the Fourth Amendment. I'm just going to keep instructing people to wire tap and bug.

Peter Robinson: Simply ignores the Court effectively?

Lawrence Alexander: …because it takes, you know, you could--the Supreme Court can only hear one case at a time. Only if you follow Cooper v. Aaron do you have an extension of that.

Peter Robinson: And in your view, the recourse bears to the ballot box?

Robert George: I don't think it's all or nothing. It seems to me that executives have an obligation to exercise prudence and often, as I said, to defer to Supreme Court judgments and the judgments of other courts. But often doesn't mean always. And prudence doesn't mean it's an absolute binding rule. Presidents and congress should be particularly vigilant when the Supreme Court is not simply making a mistake. I think if it's simply a mistake, ordinarily the right thing to do for the other branches is to defer. But where the Supreme Court is itself behaving unconstitutionally by grabbing for itself power that is legitimately delegated by the Constitution to the other branches, our only check there is the co-equal interpretative power of the executive.

Peter Robinson: Since making its claim of judicial supremacy in Cooper v. Aaron a half century ago, has the Supreme Court behaved reasonably or has it overstepped its authority?

Title: Origins of the Specious

Peter Robinson: Judge Robert Bork, "The Supreme Court has enacted a more permissive abortion regime than any state had enacted, prohibited any exercise or symbol of religion touching even remotely upon government, made the death penalty extremely difficult to impose and execute, perverted the political process by upholding campaign finance limits that shift political power to incumbents, journalists and labor unions and protected as free speech, computer generated pornography. These decisions are activist that is, not plausibly related to the Constitution." Thomas Jefferson, all those years ago, feared that judicial supremacy would place us under the despotism of an oligarchy. Lincoln worried that it would rob the people of genuine self government and isn't that what has happened?

Lawrence Alexander: Let's assume Bork is correct for a moment, his claim could be one of two things. The Court has in bad faith, tried to grab power, to govern without recourse to the Constitution. It's acting extra-constitutionally. Or he could be making the claim that the Court was acting in good faith but its opinions are not validated by the Constitution, they go beyond what the Constitution requires. Assume the latter.

Peter Robinson: Right.

Lawrence Alexander: Okay. The claim is basically the Court, in interpreting the Constitution, got it wrong. Anyone who has the final say can be wrong, including the Framers. And even if we interpret them correctly, they then have the final say and they could be wrong as a matter of justice, as a matter of good social policy and the like. And so in all of these cases, of course the Court can get it wrong. It's fallible. That doesn't mean that congress can't get it wrong either.

Peter Robinson: Or indeed that the people can't get it wrong but it does place the final say in different places. So under Robert--or what I take to be Robert's interpretation, it's unlikely that we'd end up with an abortion regime as permissive as the one we have or a pornography as widely available as it is now because it doesn't--it's at least arguable. Indeed I would argue it--that the politics, over time, the will of the American people would not permit that. It's only because the Court has the final say that we live in quite the America that we live in.

Robert George: I'm not suggesting that anybody has to have the final say.

Peter Robinson: Right.

Robert George: In fact, I'm suggesting that on some issues, even some important issues, nobody should have the final say, at least under our Constitution. No one has been given the authority to have the final say.

Peter Robinson: If Robert's opinion held sway, how would American government be different?

Title: Air Force One v. D.C.9

Peter Robinson: You are arguing an interpretation of the Constitution which would have us living in a somewhat different America today, are you not?

Robert George: Well it's a different America from…

Peter Robinson: Can you imagine this passage by Bork--he'd have been able to write that if your interpretation had held sway over the last century or so?

Robert George: Had prevailed? There would probably be more cases where there was conflict between the executive or the legislature on the one side and the judiciary on the other. Yes, I think that's right. I think that largely we have come to accept the judicial supremacy announced in Cooper against Aaron.

Peter Robinson: Okay.

Lawrence Alexander: Let me just give you one other case…

Peter Robinson: Yeah, sure. Go ahead.

Lawrence Alexander: …where judicial supremacy would have been, you know, where you can see the value of it and that's Bush v. Gore.

Peter Robinson: Right.

Lawrence Alexander: Assume for a moment that the other political branches did not feel bound by the Supreme Court opinion. You can imagine various scenarios in which politics wouldn't settle the matter because it's the very rules of politics that themselves would be at issue. And there would be disagreements. There could have been disagreements about whether, you know, which delegation from Florida should be recognized, about how the votes could be--there were a number of constitutional questions up in the air. And if you don't assume the power of the Court to arbitrate in that--to come up with a definitive interpretation of the Constitution as it applies…

Peter Robinson: Binding on the state court in Florida, binding on the Florida legislature, binding on…

Lawrence Alexander: Binding on Congress.

Peter Robinson: …binding on Congress, binding on the President, the Vice President. That was important.

Lawrence Alexander: I mean, one of the things that Cooper v. Aaron does is it prevents--assuming the Court doesn't go completely mad and wild, it prevents major constitutional crises. I'm not so sure that I wanted, you know, ordinary politics to settle the Nixon tapes things. I'm not sure what that would have looked like.

Peter Robinson: Well what would Bush v. Gore

Robert George: I think Nixon would have been gone. I mean…

Peter Robinson: What would Bush v. Gore have looked like?

Robert George: And it was public opinion that forced Nixon out of office in the end anyway.

Peter Robinson: Absent the assumption of judicial supremacy, absent that, what would Bush v. Gore have looked like?

Robert George: Let me make three points about it.

Peter Robinson: Sure.

Robert George: First, according to Lincoln's own standards, Bush v. Gore would be settled law because it's binding on the parties to the case. That is Bush and Gore. Secondly…

Peter Robinson: He's got you there, no?

Lawrence Alexander: Well it's true that in terms of…

Peter Robinson: We'll get your other two points if we need to but the first one seems decisive, no?

Lawrence Alexander: It's true that in terms of the counting of the ballots in Florida, it was binding on the parties. That did not necessarily conclude anything else.

Peter Robinson: Okay. Other two points. Sorry.

Robert George: Well the second point is that often it will be prudent for statesmen in the executive and legislative branches by Lincoln's own terms here, to comply with Supreme Court rulings, not because they're necessarily the final word but because in the circumstances, the public weal does require that. So compliance with Bush v. Gore would have been probably a prudent thing to do even if a particular person didn't believe he was constitutionally required to…

Peter Robinson: Are you asserting, Robert, that if your view had prevailed, we just wouldn't have any more constitutional crises than we've had? We would have been…

Robert George: No, we would have constitutional crises but we would not call them constitutional crises. We would call it constitutional politics, I think.

Peter Robinson: It's my understanding from going through the Internet that his view is gaining intellectual ground. So a decade from now, let me ask you this, will the legal establishment--law schools, the prominent lawyers, the judges themselves, have grown more skeptical of judicial supremacy or will it remain a fixed feature of the legal system?

Lawrence Alexander: Well the sentiment in the intellectual class that pays attention to this…

Peter Robinson: Yes. That's exactly what I'm asking.

Lawrence Alexander: …tends to follow the political preferences vis-à-vis how the Court decides. So right now you're getting more skepticism about Cooper v. Aaron because the Supreme Court has decided some cases against congressional power recently which liberal academics don't like. And so liberal academics who did like Cooper v. Aaron now find that it's, of course, a two-edged sword.

Peter Robinson: I see.

Lawrence Alexander: The Supreme Court is not always the Warren Court. But I think for that reason, I think it's hard to make these kinds of predictions very far out.

Peter Robinson: Let's stipulate then that George W. Bush is reelected and gets enough seats in the Senate so that he--let's say that in the course of the second Bush Administration, he gets three appointments to the Supreme Court. Then liberal academics start rethinking Cooper v. Aaron in a big way?

Lawrence Alexander: I think the correlation there is very direct and yes, I…

Peter Robinson: Robert, your predictions.

Robert George: Larry's absolutely right about that. I, myself, am a person of largely conservative sentiments but I find the support for my view now substantially to be on the left of people who are critical of Cooper v. Aaron because they fear a conservative Supreme Court.

Peter Robinson: Larry Alexander, Robert George, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge, thanks for joining us.