Excerpts from ‘How the Court Became Supreme’ (Part 1)

In a post last week at American Thinker, James W. Lucas includes a number of excellent links and one of this first was to the above titled article by Robert Lowry Clinton from the publication First Things in January, 1999. Clinton has since written on the topic and I’ve linked to three of his essays previously:

Elitism and Judicial Supremacy: Faced with an increasingly democratic political system, American elites have turned to the courts as an alternate means of enacting their political and constitutional agenda.

The Marbury Myth: John Marshall’s famous decision does not support judicial supremacy.

Judicial Supremacy and the Constitution: We need to reclaim the Constitution from the Supreme Court.

Today and tomorrow I’m going to excerpt from his 1999 article since it runs nineteen pages printed and contains important history on the topic of judicial supremacy. Here’s Clinton’s opening:

The past half-century has witnessed the rise to prominence of a constitutional theory that gives the U.S. Supreme Court a virtual monopoly in American constitutional law. This theory grants the Court conclusive authority to determine the meaning of constitutional provisions—even those that empower the other, supposedly coequal, branches of the national government. The theory has become so prominent that no serious discussion of the United States Constitution can proceed without acknowledgment of the fact that the Court is now regarded by almost everyone to be the primary guardian of our fundamental law. The theme is echoed in scholarly books and articles, in the casebooks we use to train lawyers, in the political science textbooks we use to train citizens, in the councils of government, in the media, and even in the streets.

The Court’s monopoly in constitutional law rests largely upon two kinds of argument. The political argument holds that judges must control the Constitution to protect individuals and groups from the tyranny of the majority in the legislatures. The legal-historical argument asserts that judicial supremacy in constitutional matters is grounded in American constitutional history and justified in Supreme Court doctrine, especially in the landmark case of Marbury v. Madison (1803).

The Court’s constitutional hegemony, coupled with the extension of federal equity powers that has accompanied it, has created an environment in which federal courts in the most fundamental ways control the activities of coordinate agencies in the national government, the states, local governments, and many quasi-public and private organizations. In some instances, judicial supervision has penetrated so deeply as to affect the micromanagement of daily operational details for extended periods of time. As Robert F. Nagel describes it:

“This unprecedented use of judicial power is not a response to specific and limited necessity or emergency. The power is exercised in every state and on a wide variety of social issues. Even a relatively ‘conservative’ Supreme Court seems transfixed; recent decisions, such as those dealing with the legislative veto and political gerrymandering, illustrate the Court’s continuing insistence that almost no public issue should be excluded from judicial oversight. Heavy reliance on the judiciary—in various ideological directions—is fast becoming an ingrained part of the American system; already it is difficult for many even to imagine any alternative.”

After Clinton spends a couple of pages summing up some of American history regarding the Court, he writes:

Thus the origin of modern judicial supremacy in constitutional law can be found neither in the Constitution nor in its early judicial application. Tocqueville’s famous aphorism according to which all political questions sooner or later develop into judicial ones described a feared tendency rather than a reality. So had the earlier arguments of the Antifederalist Brutus. Brutus clearly saw vast potential for expansive judicial development in the 1787 Constitution, but his worst fears did not materialize until a century later. When Jeffersonian Republicans and Jacksonian Democrats launched early attacks on the Court, they did so on the basis of a widespread belief that congressional or presidential interpretations of the Constitution were entitled to as much respect as those of the Court.

During the last forty years, however, the Supreme Court has—with increasing frequency, intensity, and success—pressed its claim to be the primary, even exclusive, organ of constitutional interpretation in the United States. The first assertion of this claim came in 1958, in Cooper v. Aaron (the Little Rock school desegregation case). The Court declared the federal judiciary to be “supreme in the exposition of the law of the Constitution,” effectively equating the Court’s own interpretations with the Constitution itself. The legal peg supporting this maneuver was the Court’s assertion that its own constitutional rulings possessed status as the “supreme law” under Article VI, alongside constitutional provisions, national laws, and federal treaties. The Cooper Court also wrongly cited Marbury v. Madison as precedent for its newly discovered “ultimate” interpretive authority. Because of the Cooper decision and its more recent progeny, many have come to believe that in Marbury the Court really had declared itself the primary organ of constitutional interpretation. This belief is a useful fiction for a Court determined to establish its own constitutional hegemony, for it allows the Court to claim the support of the great Chief Justice John Marshall for its assertion of power. Such doctrinal support is essential in a legal system with common law roots and stare decisis pretensions.

His next paragraph is this one (and we’ll continue with more tomorrow):

But as the Court’s own record of precedents demonstrates, its post-1958 conception of American constitutional history is fundamentally wrong. A limited form of judicial review was already established by 1800, but only for relatively “clear cases.” Marbury did not alter this, but rather established a clear precedent for the Court’s power to disregard congressional laws in cases “of a judiciary nature”—cases in which judicial functions were threatened by application of a questionable statutory provision. Marbury established only that the judiciary would play an important role in constitutional interpretation, not that it would play the ultimate role. After Marbury the Court did not invalidate another act of Congress until Dred Scott v. Sanford in 1857. It would not cite Marbury in support of any kind of constitutional judicial review until the 1880s, and not in support of broad-gauged review until the 1950s.

Read more: First Things

Image credit: www.theimaginativeconservative.org.