The Unsoundness of Judicial Supremacy

It appears the U.S. Supreme Court expanded their powers in this session.

Paul R. DeHart, an associate professor of political science at Texas State University, has a post up at Public Discourse on one of my favorite topics lately — the myth of judicial supremacy. I’ve noticed that it’s usually the political science professors that understand the Constitution, whereas the law professors are more likely to be confused. There’s just something about the progressive law schools that leave even intelligent people terribly confused about the actual words of the Constitution, and the equally as plain words of the Founding Fathers commenting on the Constitution.

Here is the introductory sentence:

Decisions of the Supreme Court that go beyond power delegated to the judicial branch or are contrary to the Constitution are null and void. To protect our constitutional republic, citizens, states, and the other branches of the federal government must resist any such decision.

These days, when the Supreme Court issues an opinion that goes beyond the power delegated to it or that is contrary to the Constitution, much of our society, led by confused law school graduates and gutless politicians, is convinced that the Supreme Court has just decreed a law from on high. No matter how ridiculous the opinion is. It makes you wonder just how off the wall a majority opinion would have to be before some people woke up and realized that we’re not governed by an oligarchy.

The four Justices that dissented each wrote devastating critiques of this recent marriage decision, so it wasn’t just those who disagreed with the politics of it that are on record calling it for what it was: an emotion-based political decision that had nothing to do with the U.S. Constitution.

Here are the opening paragraphs DeHart’s post — I pull this much material so as to entice you to follow the link below and read the entire article:

The Supreme Court looms large in American politics. In fact, many accept the claim—made by the Court and others—that the Supreme Court gets the final say as to what counts as law under our system of government. Judicial review is now bound together with the doctrine of judicial supremacy, crafted by Chief Justice Roger Taney in Ableman v. Booth—the case that infamously upheld the Fugitive Slave Act.

Together with Thomas Jefferson, Abraham Lincoln, Carson Holloway, and Robert George, I dissent from this view. Judicial supremacy is contrary to republicanism (that is, to popular sovereignty) and to constitutionalism (that is, to the rule of law rather than men). Indeed, the doctrine of judicial supremacy unravels the entire fabric of our constitutional order.

Several weeks ago, I entered this debate publicly by critiquing an argument proffered by Gabriel Malor. In a column at The Federalist, Malor criticized Governor Mike Huckabee’s claim that states have the right to resist or refuse to comply with decisions of the Court that extend beyond their jurisdiction under the Constitution. According to Malor, such a view is pure “gobbledygook.”

On the contrary, I argued, our founders and framers held that no act of the federal government—the Supreme Court included—that goes beyond power granted in the Constitution or that is contrary to its express prohibitions possesses the power to bind. Other actors—the legislative or executive branches, the state government, and even individuals—therefore have the right to ignore decisions of the Court that exceed its jurisdiction. I demonstrated that this was the position of the framers of the Constitution, including not only James Madison but also Alexander Hamilton, the principal architect of judicial review. And I maintained that constitutionalism and republican form depend upon affirming that decisions of the Court that go beyond power delegated by, or contrary to, the Constitution are null and void.

In reply, Malor made two points that will serve as my point of departure here. First, he maintained that Huckabee “is off in fringe territory” when he claims that “the Supreme Court . . . cannot overrule the other branches of government.” Second, he maintained that my rejection of judicial supremacy turned on a normative rather than a notional account of law. While I describe the way things should be, Malor describes the way things are. In our current climate, he thinks, it’s just not possible to resist the decrees of the Supreme Court, and to suggest that things could or should be different is simply nonsensical.

What they’re saying, DeHart writes, is that “The Supreme Court cannot be resisted because it has power; justice is of no consequence here.”

Even if it’s true that resistance to the Supreme Court will not succeed, it does not follow that such resistance cannot or ought not be undertaken. But even if the argument were not invalid, the major premise—that the Supreme Court cannot be successfully resisted—is demonstrably false.

It doesn’t take long to read DeHart’s entire article — and I can’t recommend it highly enough since he covers so much of the debate so effectively. You’ll find it here.

I have linked other articles on the topic on this page.

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