Our last foray into the wilds of judicial imperiousness discussed how a jurist’s myopic obsession with legal process tends to obscure the ends to which the Constitution was written in the first place. Note please that the wearers of the Regal Robe tend to become most agitated when progressive policies are threatened. Joe Biden could bump into the furniture in the Oval Office before being guided to his seat where he’d repeal virtually every one of Donald Trump’s policies that he could get to via executive order without so much as a whimper of protest from the Black Robed Regents who now carpet bomb President Trump’s policies at every turn.
Granted, the Supreme Court ruled that Biden’s student loan giveaway was unconstitutional, only to see Biden vow to continue the policy. Were there any injunctions? No, that would be too intrusive a breach on the separation of powers, dontcha know. At least that’s the case when progressive prerogatives are on the line.
No, the ratchet only goes in one direction, as Andrew McCarthy noted years ago. When the left is in charge, all of government works in a harmonious effort to advance the left’s agenda of leaving American citizens defenseless against domestic and imported predators while making sure to pit Americans against each other on the basis of race and 32 flavors of the latest pronouns. And then, according to the script, Republicans come into power occasionally and basically hold everything in place while reining in a few of the most egregious excesses of the left before progressives return to power and wreck the place with renewed energy.
Except this time, the American people broke the wretched ratchet and said, “no more.” They elected a guy who told us that “They’re really coming after you. I’m just standing in the way.” And right on cue, the left proved his point by attacking him in the media, attacking him with all three branches of government, including a corrupt and weaponized justice system, while screaming that Donald Trump was Hitler incarnate until someone literally shot him during the course of two assassination attempts.
He not only survived all of that, but he prevailed and was swept into office with a plurality of the electoral vote and the popular vote, bringing Republican majorities in both houses of Congress with him. Finally, it seemed that the American people had reclaimed their authority and would again be the masters of their government instead of the other way around. On cue, the judiciary now rises to thwart the will of the people and assert the supreme power of That Old Black Magic Robe.
Where exactly did this madness originate? Where does the Constitution bequeath supreme power to the judiciary? How does that concept square with the separation of powers among co-equal branches of government? First, nowhere in the Constitution do we find any mention of Judicial Supremacy. That particular concept has its roots in an 1803 opinion, written by Chief Justice John Marshall, in the much vaunted case of Marbury v. Madison.
Justice Marshall’s opinion enshrined the concept of “judicial review” into the judicial lexicon from which many have derived the concept of judicial supremacy. As Distinguished University Chair and Professor Michael Stokes Paulsen explained in his 2003 work, “The Irrepressible Myth of Marbury,“ published in the Michigan Law Review:
It is the fundamental betrayal of Marybury‘s premises and Marbury‘s logic that accounts for nearly all of what is wrong with “constitutional law” today. The twin peaks of constitutional law today are judicial supremacy and interpretive license. Marbury refutes both propositions. Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy. And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion.
Indeed, Marbury, says Professor Paulsen, is today revered “for the myth it has become” more than for the actual logic and rationality of the opinion as written. After all, officials across the Executive, Legislative, and Judicial branches of government swear an oath of allegiance to the Constitution, not stare decisis. Nor do they take an oath of allegiance to comply with the Constitutional violations of other government officials, regardless of the branch in which they serve.
Paulsen finds in Marshall’s opinion three core principles that inform and direct judicial review. The first (and foundational) principle is that of constitutional supremacy, to which all branches of government are equally beholden and equally subservient.
Second, the interpretative independence of the executive, legislative, and judicial branches, “a consequence that flows both from constitutional supremacy, and implicitly, from the structural separation of powers of the various departments of government.”
It would be incompatible with the doctrine of constitutional supremacy for one branch to bind another to unconstitutional actions or opinions. The final core component of Marshall’s opinion was the aforementioned oath of fidelity to the Constitution, which, writes Paulsen, “requires that an interpreter have direct, unmediated recourse to the Constitution.”
It is the Constitution that is preeminent, rather than the actions of agencies and departments under it. Unhappily, writes Paulsen, most in the legal community have misinterpreted Marbury to mean something else. For them, the money quote is Marshall’s line that “It is emphatically the province and duty of the judicial department to say what the law is.”
But the very next line reads, “Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” This, as Paulsen writes, is a long way from an assertion of judicial supremacy over the branches of government.
In his article, Paulsen writes:
The myth of judicial primacy tends to generate the corollary myth of plenary power over interpretive method. Because what the Court says controls, there’s no control over what the Court says. The Court’s power ‘to say what the law is’ becomes ‘the law is what the Court says it is.’ Whatever the Court says, goes. …What Marbury says, however, is that whatever the Constitution says, goes. The courts don’t get to say whatever they want. They are ‘bound by that instrument.’
The implications for the correct reading of Marbury are rather surprising, including the following, which the professor highlights:
But if the correct understanding of Marbury, and of the Constitution, is that no branch has interpretive supremacy; that each branch has independent interpretive power within its own sphere; and that the standard governing each, and to which each is required to adhere, is the Constitution itself, then impeachment of judges on the ground of constitutional infidelity is not confused at all: it is the ultimate, and perhaps the only truly effective means by which Congress might, with the cooperation of the executive, resist and check a series of attempted usurpations of power by the courts.
John Roberts, are you listening?
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