Talking Back to the Court

“We the People” by Larry Kramer, in Boston Review (Feb.–Mar. 2004), E53–407, Massachusetts Institute of Technology, Cambridge, Mass. 02139.

Nearly everyone now takes it for granted that the final word on the Constitution’s meaning belongs to the Supreme Court. Yet “broad acceptance of judicial supremacy is of surprisingly recent vintage”—and ought to be overturned, argues Kramer, a law professor at New York University.

Judicial supremacy didn’t begin with Marbury v. Madison (1803), as is commonly supposed, he argues. That decision established the principle of judicial review of acts of Congress, but it didn’t imply that the Supreme Court would have the last word on all things constitutional. In invalidating a federal statute, Chief Justice John Marshall avoided using Federalist arguments for judicial supremacy (though he favored it) and instead cribbed Democratic-Republican ones for “departmentalism.” This theory, which emerged in the 1790s, grew out of the notion that the different departments of government, by checking and balancing one another, would keep the people informed about controversial proposals. The people themselves would serve as the ultimate arbiter of the Constitution’s meaning, expressing their views through petitions, protests, and public opinion.

For many years, claims of judicial supremacy were revived only occasionally. When “an overconfident Supreme Court” declared in the infamous Dred Scott decision in 1857 that Congress had no power to exclude slavery from federal territories, Abraham Lincoln and others reasserted the departmental theory and rebuked the Court for its presumption. After clashing with President Franklin D. Roosevelt over some of his New Deal legislation—and facing the threat of FDR’s court-packing plan—the Court essentially backed down: Constitutional questions about the scope of federal power would be left to the political process, while the judges would police individual rights.

But in 1958, when Arkansas and other southern states sought to defy the Supreme Court’s school desegregation decision in Brown v. Board of Education (1954), the justices made a sweeping claim of judicial supremacy, asserting that it had been accepted since Marbury.

That was nonsense, says Kramer, but the idea “seemed gradually to find public acceptance.” Conservatives, for the most part, had always favored it, and liberals, enamored of the Court’s liberal activism under Chief Justice Earl Warren, abandoned their old doubts. Still, the Court largely refrained from trying to define the scope of presidential and congressional authority.

Until, that is, Chief Justice William Rehnquist’s conservative Court became much more aggressive, says Kramer, “striking down federal legislation at a pace far greater than [that of] any other court in American history.”

Behind the rise of judicial supremacy since the mid-20th century, Kramer believes, lie “profoundly anti-democratic attitudes.” In his view, when the Court overreaches, Americans should pressure their representatives to rein in the jurists: “Justices can be impeached, the court’s budget can be slashed, the president can ignore its mandates, Congress can strip it of jurisdiction or shrink its size or pack it with new members or give it burdensome new responsibilities or revise its procedures. The means are available, and they have been used [in the past] to great effect when necessary.”