Abraham Lincoln, in his 1860 Cooper Union speech, asked, “What is the frame of government under which we live?”  The answer must be, he said, the Constitution of the United States.  The answer today, as Chronicles’ reviewer of Quirk’s and Bridewell’s Judicial Dictatorship stated in 1995, is a judicial dictatorship imposed by the Supreme Court.  If 80 percent of the people want to try term limits to make Congress more responsive, the idea must be presented to the Court for approval or rejection.  The same goes for school vouchers, campaign-finance reform, and so on.  The Court now decides all kinds of questions that used to be left to the legislature.  May the President conduct a “War on Terror”?  The Court now tells him what rights he must allow to his captives, though, in all preceding wars, it had deferred to the executive.  The Court now stands astride the country like a colossus.

The imperial judiciary, though, has suddenly come under heavy attack.  On July 22, the House of Representatives passed the Marriage Protection Act (H.R. 3313), which would remove the “gay marriage” issue from the Supreme Court’s docket.  Of course, if you can put “gay marriage” off limits to the Court, you can do the same with any other kind of case: All it takes is a statute passed by Congress and signed by the president.  Indeed, the 2004 Republican platform proposes removing a few other things from the Court’s docket by “using Article III of the Constitution to limit federal court jurisdiction” over cases trying to delete “under God” from the Pledge of Allegiance and those prohibiting public depictions of the Ten Commandments.  On the heels of these developments, the press reports that Karl Rove’s current reading includes Larry D. Kramer’s The People Themselves, published last July.  In this book, Kramer, dean of the Stanford Law School, makes a comprehensive attack on judicial supremacy.  Judge Richard A. Posner, in his review in the New Republic (July 19), notes that Kramer is one of a small band of “mainly left-leaning law professors” from such elite schools as Georgetown and New York University who, within the past four or five years, have challenged judicial supremacy.  Is the imperial judiciary falling out of favor with respectable opinionmakers?

The imperial judiciary finds support in neither the text of the Constitution nor the history of our country’s founding, while contravening the philosophies of all our great presidents.  The Founding Fathers’ revolutionary ideology was formed in a bloody eight-year war to get rid of the English and their king.  In Philadelphia in 1787, a people, for the first time in history, deliberately constructed a form of government of their own choosing.  Is it reasonable to think that Washington, Franklin, Hamilton, and Madison wished to live under rules imposed by an unelected court?  Clearly not, for, if any one “co-equal” branch was intended to be supreme, it is Congress.  As James Madison noted in Federalist 51, “In republican government the legislative authority, necessarily, predominates.”  This only makes sense.  The legislature crafts the rules and regulations for society.  Also, because members of the popular branch of the legislature are typically chosen from small districts with short election cycles, they are more in touch with local circumstances and are more susceptible to censure should they violate the people’s trust.  In Article I, we see that Congress’s authority far eclipses that of the other branches.  Congress, for example, has the power to raise and spend money, declare war, impeach members of the other two branches, and control the Supreme Court’s appellate jurisdiction.

Viewed in the light of history and the text of the Constitution itself, the acceptance of judicial supremacy in modern times is astonishing.  Congress, if it chose, could abolish all federal courts except the Supreme Court, and it could reduce that Court’s jurisdiction to only those cases affecting ambassadors, other public ministers and consuls, and ones to which a state is a party.  Except for guaranteeing the bare existence of the Supreme Court—with the minor jurisdiction mentioned—the Constitution authorizes Congress to establish and regulate the judicial system.  Congress controls such matters as how many judges make up the Court, its budget, what writs it may issue, how much its members are paid, and what appeals from state courts it may hear.

Hamilton, in Federalist 78, noted that the Court has “no influence over sword or purse” and it must rely on the aid of the executive even for the enforcement of its orders.  He concluded that

the judicial is beyond comparison the weakest of three departments of power; it can never attack with success either of the other two and that all possible care is requisite to enable it to defend itself against their attacks.

To give the judiciary the final say on constitutional matters would, in Jefferson’s words, make it “a despotic branch.”  Jefferson recognized that a final arbiter was needed if the three branches could not work out their differences on certain issues.  However, his final arbiter was not the federal government but the people of the several states.  Jefferson envisioned the people acting in their elective capacities or in conventions as the final decisionmakers on issues of constitutional law.

Our great presidents have all rejected judicial supremacy—Jefferson, Madison, Jackson, Lincoln, and both Roosevelts.  Lincoln, in his First Inaugural Address, said that

A majority held in restraint by constitutional checks and limitations and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.  Whoever rejects it does of necessity, fly to anarchy or despotism . . . [I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Judicial supremacy is antithetical to the republican form of government.  It is a constitutional oxymoron, Jefferson wrote on April 20, 1806, to make “any branch independent of the nation.”  Just where did such an exotic plant come from, and what has been holding it up?  More importantly, what, specifically, can be done to end it?  Kramer, disappointingly, is incurious about the first and vague about the second:

Sometime in the past generation or so (it is impossible to pinpoint a moment in what was, after all, a gradual process), Americans came to believe that the meaning of their Constitution is something that should be left to others.  Constitutional history was recast . . . as a story of judicial triumphalism.

He tries again a few pages later:

A broad change in public attitudes toward the Court occurred in the latter half of the twentieth century . . . How and why this change came about is a complicated story . . . But whatever the explanation there can be little doubt [that a change occurred].

Kramer appears to be contemplating an “Invasion of the Body Snatchers” theory—people go to sleep as good democrats but wake up as judicial supremacists.

The reality is not that complicated.  Because blacks were politically excluded, the judiciary was the only branch available that could bring racial justice to the country.  What began as a necessity continued as a convenience.  An entire generation of constitutional-law scholars became so taken with the Court’s results that, in the process, they evolved voluminous and elaborate rationalizations to justify the Court’s expanded authority.  Additionally, the political branches learned the surprising lesson that they could gain power by ceding power.  The hot-button cultural issues—e.g. race, sex, religion, and abortion—are so controversial that a large number of voters will be alienated no matter which way their representatives vote.  Incumbents came to believe, reasonably enough, that, if they could avoid being forced to take sides on such volatile issues, their reelection would be more likely.  The unelected Supreme Court, whose members have lifetime tenure, became (and remain) willing to take on the issues.  The justices have become celebrities.  As the Court is increasingly recognized as just another political branch, however, great costs have been incurred.  The Founding Fathers would have a hard time understanding why the future makeup of the Supreme Court was a major issue in the 2004 presidential election.

Kramer persuasively argues for an end to judicial supremacy: “The Supreme Court is not the highest authority in the land on constitutional law.  We are.”  He is not clear on how “we” should express ourselves, however.  What does it mean, Judge Posner asks, to say the people are the “authoritative tribunal”?  The “very concept is barely intelligible.”  Is Kramer suggesting that judges be impeached if the people disagree with an opinion?

The big news is that practical, everyday people are working hard right now to bring the colossus down.  The House of Representatives, in passing H.R. 3313, is attempting to reassert legislative control of the Court by limiting the kinds of cases the Supreme Court may hear.  What Congress does next depends on how the Court responds.  The Court may be conciliatory, or we may be headed directly into a constitutional crisis 

The fight over judicial supremacy, Kramer rightly points out, amounts to the latest battle in the old war between Hamiltonians and Jeffersonians.  The Hamiltonians are deeply ambivalent toward democracy; while committed to the notion of popular rule, they are pessimistic about the outcome and anxious to hedge it.  Jeffersonians, on the other hand, are optimistic about self-rule: “They see risks, but are not persuaded that the risks justify circumscribing popular control by overtly undemocratic means.”  Democracy, Jefferson said, is more than a political system—it is a way of life, an attitude toward people.  As he put it, governments are republican “in proportion as they embody the will of the people and execute it.”  A country run by the majority is not a perfect society; it is sometimes foolish, sometimes callous, but it will never intentionally work against its own interest.  And, as Jefferson said, it will be as good as the people.


[The People Themselves: Popular Constitutionalism and Judicial Review, by Larry D. Kramer (New York: Oxford University Press) 363 pp., $29.95]