A half-century ago, in Cooper v. Aaron (1958), the Supreme Court referred to the “basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” as “settled doctrine” and “a permanent and indispensable feature of our constitutional system.” If the Founding Fathers were rolling in their graves in 1958, they must still be pretty restive.
Today, the judiciary possesses extraordinary power. The Supreme Court can use its essentially unaccountable judgment, under the rubric of “individual rights,” to force the people to reinvent themselves against their will. The judicial branch has reached the point where its unprecedented power is simply taken for granted. The appellate courts have come to expect the other “co-equal” branches of government to heed their dictates on nearly all constitutional matters, including matters of individual rights about which citizens reasonably disagree. In short, the courts expect us to obey them, however unconvinced we may be of the rightness of their decisions.
Judicial supremacy—the judicial right of preemption, entailing the finality of the judiciary’s judgment over that of all other governmental actors, including legislatures—is premised on this expectation of obedience. For at least half a century, in the biggest intragovernmental battle of them all, Congress has routinely wilted in the face of the Supreme Court’s increasingly fast and furious cavalry charges. And yet the judicial redefining of individual rights is inherently problematic, especially since the abstractness and generality of those rights makes the attainment of consensus about them difficult or impossible. Citizens disagree about what those rights mean and what can be inferred from them. Does a proper understanding of liberty, for example, really include the right to kill the unborn?
In a sense, the problem is not so much the judicial usurpation of democracy as the judicial usurpation of citizenship. In a republic, the exercise of citizenship is an important responsibility for the members of the whole society, not just for a handful of elites. Without a high degree of civic engagement, the political system cannot help but degenerate. Judicial supremacy is one symptom of this degeneration.
Beyond its ill effects on democracy and citizenship, judicial supremacy is not good for the rule of law. It leads to the twin maladies of subjectivism and arbitrariness.
If the Constitution is what the Supreme Court says it is, then the Constitution has no meaning apart from the Court. In that case, the law is subjective. Subjectivism is the result of regarding the Court’s decisions as full-stop authoritative—legally binding (short of amendment) no matter what. I prefer, however, to emphasize arbitrariness.
In hard cases of constitutional law involving basic moral issues—such as abortion, same-sex “marriage,” physician-assisted suicide, and (arguably) capital punishment—the chief characteristic of the controversy is that both sides embrace a reasonable point of view, and neither side can conclusively demonstrate that the other side is wrong. Unfortunately, disagreements about morality go more or less “all the way down,” which makes judicial settlement of the issue fundamentally arbitrary.
Take the issue of abortion. The two main constitutional facets of the “right” to have an abortion are liberty (“substantive” due process) and equality (equal protection). Pro-lifers insist that liberty doesn’t include the right to kill the unborn, and that equality must be understood as a moral relation among all humans rather than as a social relation between men and women. Pro-lifers believe the criterion of moral worth is the possession not of consciousness but of a human identity, which is valuable either because humans are “rational animals” and made in the image of God or because after the point of individuation—syngamy—newly existing humans have a “future like ours.” (Syngamy marks the end of the roughly 24-hour period of conception when the genetic materials of the sperm and egg become fully fused.) Either way, pro-lifers deny that there is an important moral difference between persons and “mere” humans.
Pro-choicers think there is such a difference. They believe that moral worth is tied up with moral agency, which is dependent on consciousness. For pro-choicers, rights presuppose interests, and creatures without a fairly advanced state of consciousness do not have interests. Accordingly, pro-choicers believe that, since the liberty of women is constitutionally protected, they must be able to end their pregnancies. Pro-choicers also believe that moral equality is too “theological” to be allowed to take precedence over social equality, and that social equality entails that women have a right to end their pregnancies because men have no burden equivalent to pregnancy.
The views of both pro-lifers and pro-choicers contain many complexities that cannot be summarized, much less adequately discussed, in a few short paragraphs. But both sides have a reasonable point of view. Neither side has succeeded in rationally knocking the other side out of contention, because liberty and equality, as constitutional values, do not even come close to speaking conclusively about abortion. Based solely on these abstractions, judicial rulings (in the name of the Constitution) about the permissibility of abortion are arbitrary. Because of that, they are inevitably unprincipled.
The basic decision about abortion should be left to the legislature. Legislative judgments can be principled simply as compromises in a structured system of rules. Legislators shoulder a lesser burden of proof, with respect to reason and principle, than judges do. This greater burden of rationality gives judges their unique authority, but it also limits the scope of that authority. Judicial authority must be limited in such a way as to avoid moral arbitrariness.
Defenders of judicial supremacy have a shrewd but disingenuous strategy for deflecting criticism. They say that certain rulings are “preconditions of democracy.” (Cass Sunstein’s eerily Rousseauian formulation is “democracy-forcing.”) But what if citizens disagree about what is, or is not, a precondition of democracy? Is legalized abortion a precondition of democracy? Is affirmative action? Same-sex “marriage”? Are these things that citizens must have in order to be full-fledged members of the polity? Most importantly, who is entitled to say when such disagreements are no longer reasonable, or that, regardless of any continuing disagreement, judges may decide for the country what is and is not a precondition of democracy?
Americans can find their way out of the cave of judicial supremacy by considering the significance of the Preamble to the Constitution. The beginning words of the Constitution are “We the People . . . do ordain and establish . . . ” What do these words imply? The subject of the Preamble, “We the People,” presupposes that the people possess equality of citizenship; the Preamble rejects the hierarchy in which judges are way up there and everyone else is way down here. The predicate, “ordain and establish,” suggests that the people possess political liberty. Pure majoritarianism is ruled out of the political regime in the very first words of the Constitution: No majority can take away the rights of equal citizenship or of political liberty. But pure countermajoritarianism is ruled out as well by virtue of the equality of citizenship. Judges are not privileged citizens, much less supercitizens, in this constitutional democracy.
No constitution could sensibly permit pure countermajoritarianism—the genus to which preemptive judicial authority is a species—for then it would defeat itself. A constitution is a particular social contract for a particular people. It requires consent, however that is understood. Giving consent to the social contract is not possible except to the extent that there is a belief in the equality of citizenship—citizens being those who consent on equal terms to the construction of a framework of law that binds them all. This equality of citizenship, whether it is official or unofficial, whether tacitly recognized or just assumed, flies in the face of the idea of preemptive judicial supremacy. We the People who ordain and establish a constitution could not, even if we wanted to, make our own generation subject to preemptive judicial authority. Much less can we bind future generations to such an order.
A constitution could allow for pure majoritarianism—there is nothing inherently self-defeating about that. But our Constitution does not allow it. In the United States, legislative supremacy has both judicial and political limits. (The judicial limits—embodied in the institution of judicial review—are vulnerable to being undermined by the fact of reasonable disagreement. But the political limits, such as the executive veto, are not similarly vulnerable.)
Judicial supremacy is on a collision course with constitutionalism. Giving a blank check to judges to say exclusively and with finality what the Constitution means is democratically tyrannical, foolish from the standpoint of history (because history testifies to the fact that too much power concentrated in one place tends to corrupt), and fundamentally unsound (because it makes the rule of law arbitrary and subjective). The Constitution is not the private property or secret oracle of a smug smidgen of lawyers who wear black robes.