Judicial Supremacy Has Its Limits The Court’s decisions are not binding on the executive and congressional branches.
By John Yoo — July 6, 2015 - National Review
---- the Supreme Court cannot finally determine any fundamental constitutional dispute. Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation.
Many of our greatest leaders have understood that, in a self-governing republic, the people and not the courts must settle fundamental constitutional issues. President Abraham Lincoln, for example, believed that Dred Scott only decided a controversy between two parties before the court and could not bind the president and other officials. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court,” Lincoln wrote in his first Inaugural Address, “the people will have ceased to be their rulers.” Instead, the people will have “practically resigned their government into the hands of that eminent tribunal.” Lincoln was right: the Civil War, not the Supreme Court, resolved the question of slavery.
While the Constitution does not grant the federal courts the final word, it implicitly gives the courts a right to interpret the Constitution. As Chief Justice John Marshall famously observed in Marbury v. Madison, which established the power of judicial review, “it is emphatically the province and duty of the judicial department to say what the law is.” When judges confront a case where one side relies on a federal statute and the other on the Constitution, they must choose the Constitution as the higher law and put aside the act of Congress. The judiciary’s power to interpret the Constitution derives from its responsibility to decide cases and controversies under federal law.
But the Constitution does not vest the courts with the exclusive right to interpret its meaning. It nowhere says that the Court’s reading of the Constitution bears superiority over the other branches of government. As Thomas Jefferson wrote to Abigail Adams in 1804 to explain his decision to drop existing prosecutions under the Sedition Act, “nothing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.” Indeed, the separation of powers means that the legislature and the executive also must interpret the Constitution in the course of performing their own unique functions. Congress should not pass bills that violate its understanding of the Constitution; the president should not sign bills that violate his.
Rather than give any one branch the final word, the Constitution creates three branches that can compete over its meaning. The separation of powers means not only that the President, Congress, and the Supreme Court are separate, but that they are also independent of one another. According to Jefferson, “the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.”
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A former Bush Justice Department official, he is the author, most recently, of Point of Attack: Preventive War, International Law, and Global Welfare (Oxford 2014).
