Since Marbury v. Madison in 1803, it’s been “settled law” that the Supreme Court is the last arbiter of what the U.S. Constitution means. But is it really? A respectable line of argument says “no.”
One way to look at it is quite simple. The U.S. Constitution sets up three branches of government: the legislative, the executive, and the judicial branches, in that order. Although none is theoretically inherently superior to any other, their order of establishment appears logical in a government of, for, and by the people.
Because we, the people, did “ordain and establish” the Constitution, the lawmaking power is vested in the people, speaking through our federal and state legislatures. (Until the Seventeenth Amendment in 1913, state legislatures—not the people directly—selected U. S. Senators, but of course the people of the states elected their respective legislators.)
Article II vests the power to see that those laws are faithfully executed in a chief executive, the President. That is the only office for which the Constitution explicitly prescribes an oath: to execute the office of the President faithfully, and to “preserve, protect, and defend” the Constitution to the best of the President’s ability. So the President is bound not only to execute faithfully the laws the people make for themselves, but also to preserve, protect, and defend the Constitution. That means, in part, that the President has a profound role in determining what is constitutional and what is not. He (or she) has a sworn duty to follow the Constitution and to veto legislation that is unconstitutional, not to leave it to the courts to decide.
Only in Article III does the Constitution mention the courts. Article III vests the judicial power of the United States in a “supreme” Court and in “such inferior Courts as the Congress may from time to time ordain and establish.” Thus again it is the people, speaking through their elected representatives in Congress, who may establish “lesser” courts. It is also the people who—by adopting the Constitution in the first place—established even a “supreme” Court.
Yet the Constitution’s choice of “supreme” should be understood in the context of “inferior.” The Supreme Court is only the supreme “court,” not the supreme branch of government. It remains axiomatic, in theory if not in practice, that the three branches are co-equal.
Under Marbury v. Madison, the Supreme Court necessarily has the power of judicial review, but judicial review is different from judicial supremacy. In deciding any given case or controversy before it, as Marbury recognized, the Court may have to determine whether applicable law conflicts with the Constitution. That is because, along with treaties made under the authority of the United States and laws made in pursuance of the Constitution, the Constitution by its very terms remains the supreme law of the land.
If a law that comes before the Court is not “made in pursuance of the Constitution,” therefore, then the Court must declare the law unconstitutional. But it remains the Constitution, not the Court’s ruling, that makes that law unconstitutional. The Congress never had the authority to pass it and the President, if true to his oath, should have vetoed it. The Court is the last backstop, not the first.
Unlike Supreme Court rulings from case to case, the Constitution does not change. It is not, as progressives like to claim, a “living, breathing document.” It’s not alive; it doesn’t breathe; it is words on parchment. But those words set forth, among others, a set of fixed principles against which the laws the people enact must be measured. And when a Supreme Court ruling itself conflicts with the Constitution—a position in which each branch of government may find itself from time to time—it is the Constitution, not the Supreme Court’s ruling, that is the supreme law of the land.
How, indeed, could it be otherwise? Ramesh Ponnuru argues logically in the September 21 issue of National Review that if the Supreme Court could never be wrong about the Constitution, then the Court would have no point in trying to get it right. The Court would simply vote (as it too often, unfortunately, does) its policy preferences as an unelected mini-legislature and that would be the end of it.
The Court itself in fact acknowledges its ability to get the Constitution wrong in at least two ways. First, the Court occasionally reverses itself, as in Brown v. Board of Education, overturning Plessy v. Ferguson. Second, the Court has explicitly posited as recently as Kimble v. Marvel in 2015 that it is sometimes more important that the law be settled than that it be settled correctly; otherwise we would have no rule of stare decisis.
So how did we get from a court that was merely supreme within the judicial branch of government to a court seen as the supreme arbiter of what is constitutional and what is not?
Part of it, I believe, is a simple misconstruction of the power of judicial review found in Marbury vs. Madison. Marbury established the principle of judicial review—the ability of the Supreme Court to review a law and overrule it as unconstitutional—but not a rule of judicial supremacy.
As often, Abraham Lincoln perhaps puts it best. In his first inaugural address, as Ponnuru noted, Lincoln agreed that Supreme Court “decisions must be binding in any case upon which the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.”
At the same time, Lincoln observed, “the candid citizen must confess that if 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.”
This is in essence the same argument that Justice Scalia recently made more vituperatively in his scathing dissent in Obergefell, in which a bare 5-4 majority of the unelected Court purported to redefine the institution of marriage while invalidating the marriage laws of four separate states in the cases before it. The subject matter of the case was of little interest, Justice Scalia said; the important question was who rules the American people?
The name "Supreme" Court means only that it is the highest court in the land, not that the people should view it as the final arbiter of what is right, just, or even Constitutional. The legislative, the executive, and the judicial branches of government, along with “we the people,” would all do well to remember that if we wish to see our republican form of government survive.