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Judicial Supremacists’ Dilemma

Supreme Court of United States

Whether it derives from the right or left, the argument for judicial supremacy—giving the judiciary the last word in sequence in constitutional interpretation—distills to this: Because no one can be trusted with unchecked power, the judiciary must be trusted with unchecked power. Call this the Supremacist’s Dilemma. It does not appear to trouble its adherents nor, in fairness, need it. If one sees the regime in a linear sense—evaluating decisions at discrete moments in final terms—one must lodge ultimate authority somewhere. Granted, this particular “somewhere” partakes of trusting the first five seats on the Supreme Court more than the first 2,000 names in a metropolitan phone book, but that does not of itself disqualify the reasoning. What might is its refusal to apply to the Court the very restraints on power for which, citing the liability of all power to abuse, it summons the Court in the first place.

The dilemma is this: We need a Court to check the abuses of power, but those who sit on it will be subject to the same human propensity to abuse power that necessitates their authority. The Anti-Federalist Brutus was wrong about some things, but he had this one dead to rights. The justices of the Supreme Court, he warned, would be “independent of every power under heaven.  Men placed in this situation will generally soon feel themselves independent of heaven itself.” Earl Warren, call your office.

This is, it bears emphasis, the “Supremacist’s” Dilemma. It is not the Founder’s Dilemma, because the Founders were not judicial supremacists. They recognized the role that judicial review played in maintaining the separation of powers. They, too, believed that power was liable to abuse. The divergence is that they subjected the judiciary to controls on its power too.

A recent framing of the supremacist position holds that since the judiciary holds no more power than Congress or the President in the process of evaluating the constitutionality of laws—i.e., the elected branches do so when deciding whether to enact a bill—the courts are actually merely “co-equal.”

This view of constitutional procedure is overly linear. It overlooks the extent to which interpretation involves ongoing and multidirectional conversation and conflict between the branches. But if the view is going to be linear, sequence—i.e., the last word—matters. To deny the importance of sequence—to overlook the decisiveness of who did what to whom last—is like saying Muhammad Ali and Sonny Liston were co-equal heavyweight champs because each of them had won title fights. Who last knocked out whom makes a difference in who wears the belt, just as who last pronounces on a law decides whether that law stands.

And this raises the question Juvenal recognized: Quis custodiet ipsos custodes? Who will watch the watchers? To what authority, in this linear sequence, is the Court itself subject?

Here things begin to break down. True, legislators can alter laws in an attempt to get them to pass constitutional muster, but this amounts to capitulating to what remains final judicial authority. Fair enough, the people can change the Constitution through amendment, but this, too, makes judges ultimate arbiters of what the extant Constitution means. So to whom, then, do the judges answer?

On the supremacists’ argument, the answer would appear to be: Judges answer to no one, until someone caves to judges. (Read: Judges answer to no one.)

This was not the plan. Both Hamilton—whose Federalist 81, incidentally, denies Brutus’ claim that the Court’s decisions are final and irreversible—and Madison (here, inter alia) suggested judges might answer to impeachment for abusing their authority.

But that option is long discarded, neutered along with the power of executive impeachment. So what options remain? In Plato’s Republic, the guardians are acculturated not to abuse their power through education. But the idea that human beings—especially human beings invested with uncontrolled power—can be educated out of the propensity for abuse would be wholly foreign to the American regime and, crucially, to the very premises about power on which the judicial supremacists operate.

And this is the rub. That is not to say the supremacists want merely to wish or educate abuse away in Socratic style (or, for that matter, that Plato believes it to be possible either). It is to say the supremacists’ institutional architecture—the linear conception of the regime that places the judges last—simply does not account for the possibility of judges abusing their power.

This would be a problem in any institutional design. It is particularly a problem in one erected on the assumption that the other two branches will abuse their power. The answer to the Supremacist’s Dilemma thus distills to this: The very reasons we need judges in the first place, mandate that their office be checked before the constitutional music stops.

Reader Discussion

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on June 09, 2015 at 09:17:14 am

"To deny the importance of sequence—to overlook the decisiveness of who did what to whom last—is like saying Muhammad Ali and Sonny Liston were co-equal heavyweight champs because each of them had won title fights. Who last knocked out whom makes a difference in who wears the belt, just as who last pronounces on a law decides whether that law stands."

This analogy betrays a misunderstanding of the argument-- it suggests that the judiciary's determination is the only determination that counts, just as the outcome of the fight between Ali and Liston is the only outcome that counts for the purposes of determining who wears the belt. It doesn't matter, really, what happened prior to the Ali-Liston fight-- if Liston loses, he loses the belt (and so he did).

The situation with the judiciary is quite different-- the other branches' determinations do count. If they don't consider a proposed measure constitutional, there is nothing that the judiciary can do about it. Sure, they can change their minds-- but your argument that last in sequence equals judicial supremacy turns upon the claim that judicial mind-changing isn't sufficient ("judges answer to no one"), so why should judicial or legislative mind-changing be sufficient? If the answer is, "because they're politically accountable," how do you deal with an intransigent second-term President? Impeach him? But as you acknowledge, that option has become "neutered," which is part of the reason why you don't think that judges answer to anyone.

Speaking of impeachment. I think the historical evidence pretty clear with respect to the propriety of impeaching judges. The difficulty of doing so is certainly a practical concern, but if we're talking about institutional design, "judges answer to no one" is not an accurate statement. Further, just how do you interpret the transformation of judicial review during the late 1930s? It certainly seems to me as if the Court "answered" to someone for its intransigent fidelity to, well, the original meaning of the Constitution. As much as I deplore the Roosevelt Court's works, the New Deal constitutional revolution offers proof positive that the political branches can and do watch these watchmen. The feedback mechanism is different, but it is certainly present.

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Evan Bernick
on June 09, 2015 at 11:14:58 am

What Evan Bernick said.

The question, “Who watches the watchers?” has been regarded as an intractable problem for democracy, but after reading this essay – it remains intractable. Thus, while I can’t say that Weiner mischaracterizes the weakness of the Judicial Supremacist position, I still think he does miss one powerful argument in its favor: What’s the better alternative? To misquote Churchill, judicial supremacy may be the worst system ever devised -- except for all the others.

That said, Weiner may have some justification in saying that the Founders did not explicitly embrace judicial supremacy. In practice, they may have embraced the strategy that denies that “one must lodge ultimate authority somewhere.” That is, the Founders may have concluded that Constitutional ambiguity is not a bug, but a feature, of our system: Each branch may have an incentive to seek accommodation with the other branches due to the uncertainty about how unresolved conflicts would play out in the end. Clarity, in contrast, invites each branch to push its prerogatives right to the very limit of its authority, the other branches be damned.

Alas, it’s hard to “institutionalize” ambiguity. Over time we develop precedents establishing how conflicts will be resolved among the branches. (This includes informal sanctions: We now know that when the legislative and executive branches deadlock over budgets, leading to a government shut-down, the public is likely to blame the legislative branch. This knowledge influences the willingness of the legislative and executive branches in future deadlocks.)

I sometimes wonder if we shouldn’t build into the Constitution an ambiguity generator, such as “When there is a deadlock between the branches, the matter will be resolved by flipping a coin.” But alas, this would not really achieve the same thing as genuine ambiguity. Genuine ambiguity not only leaves the outcome of the conflict in doubt, but due to the tension created by the unresolved conflict, it stigmatizes the parties that provoke the conflict in the first place. In contrast, any clear conflict-resolution mechanism would tend to de-stigmatize the practice of brinksmanship that would provoke the use of that mechanism. The mere existence of the mechanism would legitimate behavior calling for its use.

Bottom line: The judicial branch, having the weakest capacity to initiate its own agenda, would seem to be the least harmful place to lodge the power to overrule the other branches. And while impeachment and social pressure may be weak tools for controlling the court, I don’t know of any better alternatives.

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nobody.really
on June 09, 2015 at 16:06:39 pm

It is not necessary as you say that "one must lodge ultimate authority somewhere." I don't think we have a single branch that is the "ultimate authority." Instead we have three branches that each have a constitutional veto. If any of the three branches thinks something is unconstitutional then it is. If ALL the three branches agree something is constitutional then it is (at least as a positivist matter). None alone can say what is constitutional, but each alone can say what is unconstitutional.

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Devin Watkins
on June 10, 2015 at 09:17:23 am

[…] Judicial Supremacists’ Dilemma […]

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What Is Dignity for the Goose Is Dignity for the Gander - Freedom's Floodgates
on June 10, 2015 at 12:39:39 pm

I assume judges are as susceptible to the variations of prejudice as the rest of us As I see the Supreme Court I note the political preferences of judges, some more than others. But then the shift to the leviathan state has its champions, for some reason or other, and power, going back to Greece and Rome, is the lodestar of the aggressive and ambitious.

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JohnT
on June 10, 2015 at 16:21:23 pm

Nobody:

“Bottom line: The judicial branch, having the weakest capacity to initiate its own agenda, would seem to be the least harmful place to lodge the power to overrule the other branches. And while impeachment and social pressure may be weak tools for controlling the court, I don’t know of any better alternatives.”
I, also, operated on this assumption (no doubt in deference to Hamilton / Madison’s theoretical propositions in the Federalist). However, recent reading reminded me that what we all like to assume to be true in theory is also true in practice – and that this may be problematic.

On this site, Michael Greve (I think?) offered a review of Paul Nolette’s new book, “Federalism on Trial: State Attorneys General…..Contemporary America”. While reading it, I was again reminded that so much of current policy / law / rules are not the product of representative Legislatures but rather are the product of litigation AND JUDGES. Skip, for the moment, how this came to be – it simply is – and it is one of the more predominant forms of both statutory / administrative rule/ lawmaking as well as bearing both directly and indirectly upon questions / issues of constitutional import.
AND
It is both widespread and unchallenged – that is to say that these questions are in many instances DECIDED by a single Judge – and these determinations are, for all practical purposes FINAL.
Such a situation must compel one to questions Hamilton’s (and our) assertions that the Judicial is the least powerful of the Branches.
While it may be true that the Legislative may later comment, in point of fact, for a variety of reasons they either will not or cannot do so.

New Bottom Line:
Questions about who is Supreme or what is constitutional may rapidly become a mere sideshow – it sometimes seems “SO” beside the point.
I find this rather disheartening.

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gabe
on June 14, 2015 at 21:15:57 pm

“Judicial Supremacy” is the everyday current topic of the commentators; here, on Liberty law, and other forums. The pros and cons are well documented by experienced scholars – except -- the commentators have not returned to the original solution of “Supremacy” – stated in Article VI., the Supremacy Clause. Not one branch of the federal government, or office holder thereof, may usurp the Constitution of the United States. Here is where “judicial supremacy” fails to usurpation.
I submit: the First Amendment’s “free exercise” of religion is an outright enumerated Constitutional law. Congress shall make no law… nor prohibit…” Congress has not made a law prohibiting the free exercise of religion. The federal courts have made judicial law prohibiting the free exercise of religion; it is well documented by federal court decisions. There is no amended enumerated Constitutional law “prohibiting the free exercise of religion”.
The First Amendment’s free exercise of religion IS Constitutional law!
It is my hope that the scholarly commentators will start re-addressing the topic of usurpation of the Constitution’s “free exercise of religion”.
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins

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