fbpx

What Is Judicial Equality?

Law and Order Pillars in the Supreme Court during the day

When the topic is the Constitution, law professors and political science professors often talk past each other, and I’ll cop to talking past Randy Barnett, whose work commands respect even by way of dispute, first. But I’m not sure his reply at Volokh—which, in fairness, was primarily to Ed Whelan, mentioning my post here only in passing—reached my argument either. I never fired on the hill Barnett defended.

His post defended judicial review. I attacked judicial supremacy. There’s a difference. Judicial review is the authority of the courts to declare laws unconstitutional. Judicial supremacy insulates such declarations from challenge, holding them to be the final and authoritative word, for purposes of the functioning of the regime, of the Constitution’s meaning.

The evidence Barnett mustered established that the founders, including Madison, favored judicial review. I never denied that. Nor do I deny Congress’ power to pass laws. Or the President’s power to enforce them. Or Congress’ power to withhold funds. Or the President’s power not to prosecute cases or enforce rulings, the latter of which was one of the reasons the judiciary was supposed to be the least dangerous branch.

What I deny is that any one branch, at any one moment, has the final word on the Constitution’s meaning.

Barnett, disagreeing with Madison, denies that the power of the last word makes the judiciary supreme, describing that branch instead as “co-equal.” But the power of the last word includes the power to overrule the constitutional views of the other branches.

Granted, all three branches get a say, but it matters whose word is last. Fair enough, Congress assents to the constitutionality of a law when it passes it; yes, the President does so when s/he signs it; but the Court, ruling last, can annul them both, and no one, on Barnett’s reading, can stand in its way. Sorry, but how is that not supremacy?

A truly co-equal branch would have no more right than the other two to pronounce on constitutional questions, which would have to mean its views would be open to challenge in turn. As near as I can tell, Barnett acknowledges no authority sanctioned to challenge the Court once it renders a decision on a constitutional dispute, save the Court itself changing its mind, the elected branches changing the decision that triggered the dispute or the people changing the Constitution.

The difference here may distill to one of perspective. The legal view of the Constitution seeks conclusive decisions at discrete moments. The political view—political in the noble sense—understands the regime to be subject to interpretation by all three branches, and thus the deliberate judgment of the people, over time.

Again, this conversation requires all three branches to engage. When Congress capitulates, executive or judicial supremacy, or both, ensue. The emasculation of the impeachment power and Congress’ persistent refusal to utilize even far tamer authorities at its disposal, like that of the purse, badly undermine this balance.

That does not mean the answer is to elevate one of the other branches, especially the one that was supposed to exercise neither force nor will.[1] The answer is what Barnett endorsed in expression but not in institutional architecture: a judiciary that is genuinely no more than co-equal.

In either case, the hill I assaulted was not judicial review. It was judicial supremacy. Barnett prefers judicial equality. Call it what one will, it is a judiciary with the last word on constitutional affairs. That’s a hill worth fighting on.

[1] It is, incidentally, an exegetical mistake to say, as Evan Bernick does in the course of this debate, that Madison assigned the judiciary the role of policing the legislature to prevent it from judging its own cause. Madison concludes Federalist 10 by saying he has solved the problem of faction utilizing the extended republic, and he does so without once mentioning a single institutional device save representation. The judiciary simply plays no role in the resolution of this problem. That is not to say it is unimportant to Madison. But it is not the solution to the problem of faction. Moreover, his Federalist 51, by way of introducing a restatement of the extended republic thesis, explicitly rejects referring disputes to “a will in the community independent of the majority.”

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 06, 2015 at 11:15:08 am

"It is, incidentally, an exegetical mistake to say, as Evan Bernick does in the course of this debate, that Madison assigned the judiciary the role of policing the legislature to prevent it from judging its own cause."

This would indeed be an exegetical mistake, but it's not one that I made. Here's what wrote about Madison:

"Of course, Madison did not believe that the problem of self-interested legislative behavior could ever be entirely solved. How, then, is the balance of justice to be maintained? The American fear that republican governments exhibited a tendency toward tyranny led to a need for a check on both legislative and executive excesses. There is substantial evidence that the Framers authorized an independent judiciary to evaluate the constitutionality of the government's actions using tried-and-true, logic-guided methods of inquiry, and that such judicial engagement was seen as part and parcel of judicial duty."

It does not follow from the fact that Madison acknowledged that the problem of legislative self-interest cannot be solved (and Madison did not think it could be) that the Framers did not perceive dangers in allowing the political branches to act as the sole judges of the limits of their own authority, and that they established an independent judiciary to keep them within those limits. Federalist 78, among other sources, reflects acute awareness of those dangers. That Madison does not discuss the judiciary in Federalist 10 does not speak to whether concerns about legislative self-interest did not play a substantial (I'd say essential) role in the Framers' thought about the role of the judiciary and the necessity of judicial review. I think it's quite clear that they did.

read full comment
Image of Evan Bernick
Evan Bernick
on June 06, 2015 at 12:27:39 pm

While reading something off topic from this discussion, the thought occurred to me that what we have here is an “undigested morsel” of Enlightenment Era confusion between the physical and the political sciences. The former anticipates, and is quite capable of arriving at, definitive solutions, while the latter science is clearly unable to attain such definitive results, or at least history indicates this to be the case.
Here is Isaiah Berlin commenting on the problem arising from the attempt to apply “mechanics” to political questions: “A science of nature had been created; a science of mind [law?] had yet to be made. The goal in most cases must remain the same: the formulation of general laws based upon observation (“inner” and “outer”), and, when necessary, experiment; and the deduction from such laws, when established, of specific conclusions. To every genuine question, there were many false answers, and only one true one; once discovered it was final – it remained forever true…..”
It would seem that those who advocate Judicial Supremacy, whether self-identifying or not, place undue confidence in the ability of a *measured* scientific (name your preferred interpretive theory here) to arrive at a final and conclusive AND true answer.
Yet, it would not appear that Madison and his contemporaries would subscribe to this as their system / structure allowed for multiple intervention points, and knowing the weaknesses of men (legislatures?) provided several counterbalances – ONE of which was the Supreme Court – not the sole one as both Hamilton and Madison (not to mention a number of anti-Feds) placed great importance upon the interplay of the several branches of government AND levels of government (States and the central government.
It seems to me that Mr. Weiner’s approach is more in keeping with the intent of the Founders and has the added benefit of not being susceptible to the “undigested morsel” of erroneous Enlightenment Era “scientism.” It also recognizes that which Madison, et al. recognized – and Woodrow Wilson and certain members of SCOTUS do / did not – politics is not an empirical science. There is no final arbiter – there is, and was so intended, “interplay.”

read full comment
Image of gabe
gabe
on June 07, 2015 at 05:56:24 am

Gabe,

The point about the Enlightenment conception of science is immensely helpful. And you are absolutely right: Wilson didn't get it. A I don't need to tell you, he likened Publius' system to Newton, whereas Wilson claimed society was Darwinian. As you suggest, Publius was actually far more classical than Newtonian. Thanks.

Greg

read full comment
Image of Greg Weiner
Greg Weiner
on June 07, 2015 at 06:06:37 am

Evan,

I appreciate your thoughtful contributions to this conversation, even when we disagree. Perhaps I misunderstand your point, but it seems to me the passage you quote is incomplete for purposes of establishing your exegetical point. In the paragraph immediately preceding the one you quote in this comment, you move directly from quoting Federalist 10 to, in the passage you quote, invoking the judiciary. Yet Federalist 10's penultimate sentence says the paper has solved its own problem solely utilizing the extent of the republic. And Federalist 51, returning to the same topic, explicitly raises the possibility of solving the problem by utilizing a will independent of the majority and rejects it, opting instead -- again, quite explicitly -- for the extended republic theory.

The threat of legislative "tyranny" (see Federalist 47 on Publius' understanding of that term) is solved via the separation of powers (see George Carey, American Political Science Review, 1978 on this). Judicial review plays a role in the separation of powers. But to repeat -- to repeat, to repeat, to repeat -- I never denied judicial review. I denied judicial supremacy, which is another way of saying I endorsed separation of powers. All three branches engage in this conversation. I understand you call this judicial equality, an important dispute in itself. I don't see how it's equality if the judiciary gets the final word. Regardless, there is no sense in which free-standing, autonomous judicial review -- independent of a broader understanding of the separation of powers -- is Publius' solution to the problem of governmental tyranny.

Greg

read full comment
Image of Greg Weiner
Greg Weiner
on June 07, 2015 at 09:14:20 am

What you're missing is the built-in asymmetry between constitutional and unconstitutional laws. Yes, when the Court invalidates a law it has the last word, but any other branch also has the last word in that case. When the Court believes a law constitutional it has no power to enforce that view on the other branches if they disagree. For example, the Court can't force the president to enforce a law he has vetoed.

The current scheme requires the agreement of all three branches that a law is constitutional. Since the Court only gets involved if the other two branches have already acted, it's not superior to them, it just gets consulted too.

The only possible case of "supremacy" would be of the Court during the President to enforce a law that he isn't because he believes it unconstitutional. That situation is so rare I don't know of examples off-hand.

read full comment
Image of Lior
Lior
on June 07, 2015 at 10:39:36 am

Greg,

I also enjoy our discussions, and it's possible that we're talking past each other. I hope this will clarify my position, although I expect we'll still disagree.

I'm not sure what you mean by "free-standing, autonomous judicial review," but yes, meaningful scrutiny of legislative and executive branch actions by an impartial magistrate that independently assesses the constitutionality of those actions is part of the Framers' solution to the problem of governmental tyranny. Had Madison (or any of the Framers) been convinced that the problem of legislative self-interest identified in Federalist 10 was "solved" through the extent of the republic, it would hardly have been necessary to incorporate independent tribunals of justice into the Constitution, as we both acknowledged that the Framers did. To attribute to me the view that "Madison assigned the judiciary the role of policing the legislature to prevent it from judging its own cause" suggests that I read Federalist 10 as a positive argument in favor of judicial review. It obviously is not. But yes, the concern that legislators cannot safely be left as the sole judges of the extent of their own powers did serve as a justification for judicial review-- this is explicit in Federalist 78. It is a concern that permeates the Framers' thought, for reasons which I indicated.

I'll have more to say about the judicial equality point in a future post. For now: The legislature can't be forced to pass statutes it deems unconstitutional; the executive's veto can only be overridden by a legislative supramajority. That is to say, each of the political branches can *stop* unconstitutional government action--their determinations that an act of government is unconstitutional are "binding" at that moment on the other branches, including, of course, the judiciary (that is, the action in question will not be given effect) although they are not in an absolute sense binding (the legislature can change its mind, the executive can change its mind, people can be voted out of office, impeached, etc.) If the judiciary's determination of unconstitutionality can simply be ignored if the other branches disagree, it *alone* lacks the capacity to bind. In a republic that prioritizes individual rights over majority rule, it's entirely appropriate that the judiciary --an institution with neither force, nor will, only judgment (that is, reason), and which is best-positioned to guard the rights of individuals-- serve as the last line of defense against unconstitutional action and that that line of defense only be overcome with great difficulty.

In summary: courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme-- and even that finality is not absolute. For instance, besides overruling (self-initiated or legislative) and amendment, even if the Supreme Court wrongly strikes down a law, the legislature can pass a very similar law that it thinks passes constitutional muster. There’s always an ongoing dialogue between the branches of government regarding the scope of constitutional limits.

Evan

read full comment
Image of Evan Bernick
Evan Bernick
on June 07, 2015 at 16:35:19 pm

Evan:

"...it’s entirely appropriate that the judiciary –an institution with neither force, nor will, only judgment (that is, reason), and which is best-positioned to guard the rights of individuals– serve as the last line of defense against unconstitutional action and that that line of defense only be overcome with great difficulty. "

This position is pregnant with the potential for persuasiveness.

Often when attempting to digest the import / historical basis of constitutional arguments advanced on this site, I find my self thinking of those sometimes forgotten English jurists who took the monarch to task for his rather frequent usurpations. They had, as you (&Hamilton, Madison) argue neither force nor will - yet, they were successful. This leads one to ask, as you assert, whether their success was a function of their "disability?" - and, if so, did not the understanding / recognition of this rather unique strength arising from institutional weakness influence the thinking of the Framers. I admit of this possibility and there is some evidence from Hamilton's commentaries that he thought that since the Court WAS "weak", and was so designed, it could or WOULD NOT pose a threat to liberty. wishful thinking, perhaps? - clever rhetoric to garner support from doubters of the proposed structure, again, perhaps?

Also, did not these same English jurists, proclaim that the Parliament could enact anything under heaven. It's power was limitless. Thus, the English Bench assigned itself a subordinate role in English governance (even if, in practice, it continued to serve as the bulwark of the people's liberty; yet, it was against THE CROWN, not the Parliament, that these judicial efforts were primarily directed. Both Madison and Hamilton were quite familiar with English governance - indeed, Hamilton in his first oratory at the Convention asserted that the British Government was the best government in all of civilization (let's forget for the moment his call for an American King).

What does this mean - this seeming paradox?
A case can be made, such as you have here done, that Hamilton (perhaps, less so Madison) was quite comfortable with a rather constricted yet enhanced power for the Judiciary of Judicial Review while at the same time believing that a) it lacked force and will AND 2) similar to the British Parliament, the Congress may, will, and must play a counterbalancing (if sometimes final) role as it, too, would be the most powerful of the Branches (at least in theory,(and practice for 150+ years)). In short, it is appropriate for the Judiciary to exercise review - if the Bench gets it wrong, there is not much it can do about counterbalancing by the Legislative, if the Legislative Branch is so inclined.

I do sometimes wonder how to tell when folks are in agreement or not.....

read full comment
Image of gabe
gabe
on June 07, 2015 at 16:54:01 pm

Evan,

I think we are nearing an understanding of each other, which is to say a distillation of our disagreement. I did not mean to impute to you the view that F. 10 of itself argues for judicial review. I did understand you to say that F. 10 identifies a problem, and part of the answer to that problem is judicial review. There I think we disagree, if, of course, I am characterizing you correctly. I read F. 10 to say it has solved its own problem and that judicial review must therefore pertain to another one. The problem of tyranny -- the government abusing the people -- is different in Madison's thought from the problem of majorities abusing minorities, which he addresses via separation of powers. If we don't keep these separate, Madison is open to Burns' critique of the separation of powers as unnecessary and undemocratic. I'll save that for a future post (and past ones) too, but see the Carey article I referenced above for more.

Disagreement #2: you say the courts are the final arbiter only to the extent they are last in time. That's a big "only," i.e., a big "extent." I don't see how this fails to make their will supreme. As I understand your reading, the conversation continues by the legislature capitulating or the people changing the Constitution. That sounds like the courts get the last word with respect to the Constitution and law as they stand. Right?

Greg

read full comment
Image of Greg Weiner
Greg Weiner
on June 07, 2015 at 16:57:12 pm

Just to clarify my poor syntax, which I blame on insufficient caffeine: Madison addresses abusive majorities through the extended republic and governmental tyranny through separation of powers. Again, we may not have a major disagreement here. I would just keep F. 10 out of this discussion, as I think Madison does.

read full comment
Image of Greg Weiner
Greg Weiner
on June 07, 2015 at 20:03:40 pm

Excellent response--though with one caveat. Federalist 10 is a follow-up to 9, in which Publius (Hamilton) had already mentioned the large republic as the fifth *and most novel) in a series of ways to solve the problem of popular government. The first four, less novel, included judges holding their office during good behavior. These five, together, seem to correspond to the "auxiliary" precautions that supplement popular government, per 51.

read full comment
Image of David Upham
David Upham
on June 08, 2015 at 17:45:39 pm

Bracketing for a moment our disagreement concerning Federalist 10 (which although important is, I think, a secondary point rather than a primary one), I'd like to focus on the equality issue.

There is nothing that the judiciary can do to compel the legislature to pass a statute it deems unconstitutional. There is nothing that the judiciary can do to compel the executive to sign a statute he deems unconstitutional. If either of those things happen, the action in question will not take place. That determination of unconstitutionality is "binding" on the judiciary-- it's stuck with it. By the same token, a judicial determination of unconstitutionality binds the other branches. But that does not make it "supreme" over the other branches. It is only the last branch to have an opportunity to pronounce a proposed action unconstitutional.

The alternative is that only the judiciary does not have the ability to bind the other branches in its determinations of unconstitutionality. It alone can be ignored. Only the judiciary lacks an effective check on unconstitutional government action. One could argue that this is somehow appropriate, but it certainly doesn't make for co-equality.

I hold that the judiciary, like the other branches, has a duty to interpret and adhere to the written Constitution; that it cannot compel the other branches to exercise their powers in a manner that they deem to be unconstitutional; and it can effectively check government actions that it deems to be unconstitutional. That it is last in time does offer it a unique position, but there is nothing about that position that would justify the term "supremacy." By contrast, if obedience to judicial determinations of unconstitutionality is a mere prudential matter, rather than a positive obligation that would make the political branches superior to the judiciary.

You write: "Barnett acknowledges no authority sanctioned to challenge the Court once it renders a decision on a constitutional dispute, save the Court itself changing its mind, the elected branches changing the decision that triggered the dispute or the people changing the Constitution." But there are impediments to challenging determinations of unconstitutionality by any branch. If you want Congress to pass something it deems unconstitutional at time A, you've got plenty of work to do (voting the bums out is easier said than done, and the executive and the judiciary can't force them to change their minds); if you want to overcome an executive's veto, you need a legislative supramajority, which isn't easy (you could impeach him, but,as you acknowledge, that isn't easy). It's not easy to get rid of a bad decision, but it's not impossible, either, and the "finality" only pertains to determinations of unconstitutionality-- further, Congress often responds to adverse decisions by passing substantially similar statutes.

In summary, I don't think you've convincingly shown that the "supremacy" label is appropriate, and I don't think that there's a way that we can accept the legitimacy, as a general matter, of the political branches refusing to abide by judicial determinations of unconstitutionality without subordinating the judiciary. I'm certainly open to continuing this discussion, however. I wrote a follow-up response to Ed Whelan here. http://www.huffingtonpost.com/evan-bernick/judicial-equality-and-its_b_7531782.html

Evan

read full comment
Image of Evan Bernick
Evan Bernick

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.