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Originalism and Judicial Supremacy
Michael Ramsey

Last week Michael Paulsen and Ed Whelan criticized the idea of judicial supremacy.  Here I will say some words in its defense.

To begin, let’s clarify what we are not talking about.  I don’t think anyone (even including the Supreme Court) doubts that the Supreme Court makes mistakes in interpreting the Constitution – that is, that there is sometimes a difference between what the Court says the Constitution means and what it ought to say the Constitution means.  (This is especially true for originalists with a nonorginalist Court).  Further, I think everyone agrees (a) that it’s appropriate to criticize the Court for its mistakes – even for the President, other federal officials and state officials to do so; (b) it’s appropriate for them to call for erroneous decisions to be overturned, either by constitutional amendment or re-argument to the Court; and (c) it’s appropriate for state and federal officials to refuse to extend what they perceive to be erroneous Court decisions to somewhat analogous but arguably distinguishable circumstances (even where it’s fairly obvious that the Court would make the extension if it had the opportunity).

In addition, I think it's clear that substantial and important constitutional decisionmaking goes on in the executive branch and in Congress, and in the states, in areas where the Court has not spoken directly.  Finally (although some might dispute it), I think a President or Congress may refuse to take an action, or may block an action, on constitutional grounds even if the Court has said the action is perfectly constitutional.  (The classic example is Andrew Jackson’s veto of the Bank of the United States on constitutional grounds after the Court said the Bank was constitutional).

In my view the debate over judicial supremacy is mostly about two issues.  First, must the President (or other governmental actor) obey a court ruling requiring or prohibiting a particular action?  This is the In re Merryman situation, in which President Lincoln refused to obey a court order to release Merryman, whom the court found to be unconstitutionally detained.  (The order was from a lower court but that seems immaterial).  An equivalent modern situation would be if President Obama declined to halt the DAPA immigration enforcement program despite the court order to halt it.

Second, if there is a court decision finding a particular type of action unconstitutional, must the President or other governmental actor apply it to identically situated people who are not parties to the case?  This is the Cooper v. Aaron situation, in which Arkansas officials claimed not to be bound to desegregate Arkansas schools although the Court had – in Brown, involving Kansas schools – said that segregation was unconstitutional.   An equivalent modern situation would be if the Court found states constitutionally obligated to recognize same-sex marriage, and state officials refused to recognize the marriages of any same-sex couples other than those who were actually parties to the Supreme Court case.

I take it that the anti-supremacy argument is principally that government officials (especially the President) are bound by what the Constitution actually means, not by what the Supreme Court says it means.  As a result, if the Court gets the meaning wrong (in the President’s view, let’s say), the President’s duty is to the actual Constitution.  Or put another way, the Court can decide for its purposes what the Constitution means but the President can decide for his purposes what the Constitution means.

But I see several originalist problems with this position.  First, that is not how the relationship between the monarch and judges was understood in eighteenth-century England.  The king was not entitled to pursue his own view of the law despite the judges’ view of it.  To take the Merryman situation, if an English judge ordered a person released on a writ of habeas corpus, the king would not be entitled to refuse because (in the king’s view) the judge got the law wrong.  The whole point of habeas corpus in English law was to check executive power, and that check could only be effective if it was understood that the judge’s view of the law prevailed over the executive’s view.  If we understand “the judicial Power” granted in Article III to encompass the judicial power as it had operated in English law, a similar supremacy should exist in American judges.  At minimum, one would need to explain why the framers thought the President would have more power than the king in this regard.

Second, at least some framers expressed views that indicated a privileged role for judges in interpreting the law.  Hamilton in Federalist 22 wrote: 

Laws are a dead letter without courts to expound and define their true meaning and operation. … To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. … If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

The idea that courts are to “expound and define [laws’] true meaning and operation” necessarily encompasses a view of judicial supremacy.  Hamilton does not appear to be talking about courts merely establishing a rule for themselves.  Rather he sees court decisions as establishing a “uniform rule” for society as a whole – something that could not happen unless court decisions (especially decisions of the “one supreme tribunal”) were not regarded as authoritative statements of the law by other governmental actors.

Further, John Marshall seems to echo these views in Marbury.  Though I agree that technically Marbury need not be read to declare judicial supremacy, I think Marshall’s view of the courts was similar to Hamilton’s. The famous statement that  “[i]t is emphatically the province and duty of the judicial department to say what the law is” fits with Hamilton’s idea that courts would expound laws’ “true” meaning – that is, the meaning for everyone.

Third, I’m doubtful that anyone in the founding era reliably expressed the opposing view.  (Jefferson did as President, but he had obvious institutional reasons for doing so).  Professor Paulsen relies heavily on Lincoln, but Lincoln wasn't a framer and only some of Lincoln’s statements and actions truly challenge judicial supremacy as I would defined it (Lincoln said Dred Scott was wrongly decided and vowed to overturn it, but saying so is not inconsistent with judicial supremacy: a reasonable version of judicial supremacy does not require that we always think the Court is correct).  In addition, Lincoln faced a unique crisis situation; it’s doubtful that actions in a crisis situation should be persuasive authority for how one should see the Constitution in ordinary times. And at least, I think we can say without apology that Lincoln erred as a constitutional matter in Merryman; otherwise, there is simply no legal check on executive power.

In any event, I’m not persuaded that originalism doesn’t include a form of judicial supremacy.  The alternative is every branch a law unto itself, which seems inconsistent with the framers' idea of a written Constitution to check the branches' tendency to wrongfully augment their power and of an independent judiciary to keep the political branches within their constitutional boundaries.  To be sure, a privileged position for the judiciary binds the political branches to erroneous judicial interpretations at the expense of the true meaning of the Constitution, but it also allows courts to block erroneous political branch interpretations that undermine the true meaning of the Constitution.  It's not clear that the framers would have sacrificed the latter to avoid the former.