Excerpts from ‘How the Court Became Supreme’ (Part 2)

Continuing with our excerpts from Robert Lowry Clinton’s 1999 article in First Things, about a third of the way through Clinton explains that in the the 1958 case Cooper v. Aaron (the Little Rock school desegregation case) that the U.S. Supreme Court first asserted “its claim to be the primary, even exclusive, organ of constitutional interpretation in the United States.” He then writes (and the italicized part of the last sentence is his):

It is difficult to see how Congress can “enforce” the Constitution without being able to “determine what constitutes a constitutional violation.” For this essay, though, the important point is this: RFRA can be said to have altered the meaning of the Free Exercise Clause only because in Cooper v. Aaron the Court had put its own “interpretations” on a par with the Constitution itself. According to the logic of Cooper , the Court’s decision in Smith about the meaning of the Free Exercise Clause actually is the Free Exercise Clause. In Boerne, not content to rest upon this claim alone, the Court, for the first time ever (so far as I know), explicitly denied the authority of Congress to interpret the Constitution with any conclusive effect, or to define its own powers in accordance with it.

It’s a cliche — people get the government they deserve. The same applies when it comes to what the Founding Fathers warned about regarding the separation of powers and the responsibility of each branch to fight against encroachment from the other branches. Here are Clinton’s next two paragraph (this time the emphasis is mine):

Thus the Boerne Court, in spelling out the full implications of Cooper’s “final interpreter” doctrine, appears to have brought the development of judicial supremacy to completion. Modern judicial review affords the Supreme Court ultimate freedom to strike down laws merely because the Justices believe those laws to be inconsistent with the Constitution, no matter what the constitutional issue involved, and no matter how clearly the Constitution assigns authority to another branch of government. Coordinate agencies of government, the policies of which are defeated by the Court, are then expected to march to the Court-imposed drumbeat, even to the point of conforming future policy choices to judicial preferences.

It has not always been so. Nowhere is this better shown than in the Court’s historical treatment of the Marbury case—the very case misrepresented in Cooper and Boerne to support constitutional judicial supremacy. Marbury involved a provision addressed directly to the Court—Article III’s original/ appellate jurisdictional distribution—while Boerne involved the Fourteenth Amendment, whose enforcement provision is directly addressed to Congress. Marbury contains no assertion that the Court has exclusive authority to bind other parts of the government. Chief Justice Marshall claimed only that the Court must obey explicit commands of the Constitution in preference to conflicting laws when such commands are directed at the Court itself and not to another branch of government.

Just two more paragraphs — again, the article runs nineteen pages printed and it’s worth reading in full because excerpting can only convey a fraction of the important history contained in it. Again, the emphasis is my own:

Everything changed in 1958. Over the next forty years, there were 113 separate citations of Marbury , greater than the total of the previous 154 years. During this period, Marbury was employed fifty-eight times to support judicial review, twenty-one times to justify sweeping assertions of judicial power, and ten times to support the idea that the Court is final or ultimate interpreter of the Constitution, with power to issue binding proclamations to any other agency or department of government respecting any constitutional issue. Cooper v. Aaron is the earliest case in the last-mentioned category, and Boerne is the most recent. If we take the Court’s own statements seriously, we must conclude that judicial supremacy originated neither in Marbury nor in the Constitution, but was established by the Warren Court and developed subsequently by the Burger Court. And if we take seriously the Court’s use of Marbury in the post-1983 era—particularly in the Boerne case—we must conclude that the Rehnquist Court is also doing its part to perpetuate the doctrine.

If the doctrine of judicial supremacy is not the correct understanding of the judiciary established in the Constitution, then what is? The best way to answer this question is to contrast the modern doctrine with its traditional counterpart as revealed in Article III of the Constitution, Marbury v. Madison, and the thought of the Framers.

Next Clinton writes:

Judicial review of national law in the U.S. is usually thought to be constitutionally grounded in the Article III, Section 2 extension of federal judicial power to cases “arising under” the Constitution, laws, and treaties. The exact language is this: “The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” The most explicit contemporaneous statement regarding the scope of this power is found in James Madison’s Notes on the Federal Convention. According to Madison, the Founders extended federal judicial power only after agreeing that the jurisdiction was to be “constructively limited to cases of a judiciary nature.” This statement was clarified on June 17, 1789, amid congressional debate over the President’s removal power. There, Madison flatly denied the power of any branch of the national government (including the judicial) to “determine the limits of the constitutional division of power”…

Here’s the section Clinton includes from Madison (and again, the emphasis is my own):

I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But, I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments. The Constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point . . . . There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent.

Few Americans have been taught what Richard Lowry Clinton writes about in this article and the other three I linked authored by him on this page. But they, nor most wrongly taught lawyers, shouldn’t feel too bad. When you’re misinformed on any issue like so many people are, the best remedy is to be open to correction and the weighing of the new facts presented.

Two more excerpts from Clinton (emphasis added):

Since no single department “draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments,” the Founders’ restriction of the “arising under” jurisdiction of federal courts to cases “of a judiciary nature” must be construed as a denial of the power of courts to issue final constitutional pronouncements in cases involving interpretations of the constitutional powers of coordinate agencies. Cases not of a judiciary nature that also arise under the Constitution are preeminently those that require determination of the constitutional authority of the legislative or executive branch. Appropriate cases for judicial review are those that do not require such a determination.

And finally:

Even though the Court’s decision may bind the parties in a particular case, Congress might nonetheless choose to disregard the Court’s constitutional ruling and provide for executive enforcement of the statute.

Madison’s theory of review divides constitutionally defective laws into two categories: those instances where the unconstitutional law affects the function of the judiciary and those where it does not. The most obvious example of the former is an act which operates “unconstitutionally” on a court’s performance of its own duties; here judicial review is appropriate. In the other category, constitutional judicial review is inappropriate, because the performance of judicial duty in those instances is unaffected by the constitutional infirmity of the law.

You have to read the entire article — you’ll find it here: How the Court Became Supreme.

For more on this topic, visit this page: Judicial Supremacy: Not in the U.S. Constitution, Not the Intention of the Founding Fathers.

Image credit: The Supreme Court in 1935, Wikipedia image.