« Ilya Somin on Originalism and Liberty
Michael Ramsey
| Main | Anthony Bellia & Bradford Clark: The Original Source of the Cause of Action in Federal Courts
Michael Ramsey »

06/05/2015

Damon Root on Judicial Supremacy
Michael Ramsey

At Reason, Damon Root: Can the President Lawfully Ignore a Supreme Court Decision?  Conservative legal pundits take aim at “judicial supremacy.”  From the introduction:

What if President Hillary Clinton decides that Citizens United is so wrong, so contrary to the Constitution, that she is under no obligation to acquiesce in it? President Hillary Clinton then orders the Justice Department to ignore Citizens United and to enforce the very sort of campaign finance restrictions that the Court ostensibly wiped from the books in 2010. Would President Hillary Clinton possess the lawful power to act in this fashion and bypass a decision of the U.S. Supreme Court?

According to a pair of prominent conservative legal commentators, the answer to that last question is yes.

And from the conclusion:

The judiciary, [St. George] Tucker concluded [in 1803], "is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence."

Tucker's view is consistent with Madison's conception of the judiciary as an "impenetrable bulwark" and Hamilton's description of the judiciary [in Federalist 78] as "an intermediate body between the people and the legislature." The Paulsen-Whelan approach, by contrast, would turn Tucker, Madison, and Hamilton on their heads and transform the judiciary into no shield at all.