John C. Eastman^a1

Copyright © 2005 by the Harvard Society for Law & Public Policy, Inc.; John C. Eastman

Last year law schools across the country celebrated the 200th anniversary of the Supreme Court’s landmark decision in Marbury v. Madison, which firmly entrenched judicial review as a fundamental component of our constitutional system of government–so fundamental, in fact, that adorning the east wall of the Justices’ dining room in the building that is home to the Supreme Court of the United States are portraits of William Marbury and James Madison, side-by-side, facing each other as if in eternal combat.¹ At Chapman Law School, where I teach, we marked the occasion with a re-enactment of the oral argument in the case. University of Southern California Law Professor Erwin Chemerinsky (who is now a member of the faculty at Duke Law School) and I were opposing advocates. Fifth Circuit Court of Appeals Judge Jerry Smith, of Hopwood v. Texas² fame, played the role of Chief Justice, while a combination of Chapman law students and undergraduate legal studies majors filled out the bench.

Complete transcripts of the original oral argument are not available, of course, so we were able to exercise a little literary license to fill in *714 the gaps. I was there to argue Madison’s case, for example, when no one appeared on Madison’s behalf during the original proceedings, and various executive and legislative branch officials would not even provide Marbury’s lawyers with documentary evidence of his nomination, confirmation, appointment, and commission.³ I appeared specially only to challenge the Court’s jurisdiction, and I began the argument with a motion that the Chief Justice recuse himself; it was, after all, Marshall’s own failure while still Secretary of State to deliver Marbury’s midnight commission that generated the controversy in the first place.

“Chief Justice” Smith thundered a question to me from the bench: “Are you accusing me of bias?” (Actually, the question from Judge Smith was quite tame, but I did imagine the responsive thunder that such a question might have evoked from Chief Justice John Marshall himself!). My response drew a predictable round of laughter from the crowd: “I would never make such an accusation, Mr. Chief Justice. But the mere appearance of bias is sufficient to warrant recusal here.” “Chief Justice” Smith denied my motion–thankfully, as my Dean would undoubtedly have been upset with me were our star jurist to leave the bench in the opening moments of the argument–but I suspect Chief Justice Marshall would have denied the motion as well, despite his connection to the case and familial relationship with the real party in interest, President Thomas Jefferson, his cousin.

Why is it even arguably the case that Marshall should have recused himself? Nothing in the Constitution explicitly bars one from serving as judge in a legal case or controversy in which he has an interest. On the contrary, Article III provides that “the judicial power of the United States shall be vested in one Supreme Court,” and Marshall, as Chief Justice, was clearly a member of the Supreme Court. To be sure, Article III also specifies that judges “shall hold their Offices during good Behaviour,”⁴ and the Fifth Amendment guarantees that no one can be “deprived of life, liberty, or property without due process of law,”⁵ but neither of these clauses explicitly prevented the self-interested Marshall from presiding over the case, and there was at the time no positive law pronouncement, no statutory code of judicial ethics, that barred a biased jurist from taking the bench.

Yet, even absent an express statutory prohibition, I think most of us *715 have the innate sense that a judge should not sit in judgment over a case in which he has a personal interest. Call it “bad” behavior for a judge, or a deprivation of the process that is due as a matter of fundamental fairness, but is it not evident that to pursue either inquiry necessarily requires that we look beyond the mere text of the Constitution, to some notion of justice that would help give substance to its provisions? It may well be, then, that the problem of judges ruling on unenumerated rights was with us long before Earl Warren ascended to the bench.

There is another problem underlying Marbury, at least as it has come to be interpreted, that needs to be addressed. Although in our re-enactment Professor Chemerinsky and I donned period dress–complete with wigs, knee-breeches, and buckled shoes—-the controversy over judicial review is as current as recent headlines. In July 2003, the Nevada Supreme Court ordered the state legislature to consider tax increases by simple majority vote, in violation of the two-thirds vote requirement of the Nevada constitution. The Court stated in the course of its opinion that it was the interpreter (apparently the only interpreter) of the state’s constitution⁶–a broad expansion of Marshall’s claim in Marbury itself. In August of the same year, a new controversy over the display of the Ten Commandments in public space erupted in Alabama, with federal judges pitted against a state Supreme Court Chief Justice, and both sides claiming the mantle of the Rule of Law.⁷ And in November 2003, the Supreme Judicial *716 Court of Massachusetts ordered the county clerks of that state to begin issuing marriage licenses to same-sex couples, despite its own acknowledgement that neither the Massachusetts Constitution nor statutory law had ever been understood to extend “marriage” in such a fashion.⁸

When a court’s resolution of an issue before it is concededly grounded in neither constitutional text nor the original principles and practice of those who drafted it, can the claim of judicial supremacy that has been attributed to Chief Justice Marshall still be made without fundamentally altering the very nature of our republican form of government? Is the post-Warren Court’s jurisprudence of unenumerated rights different not just in degree but in kind from the jurisprudence of its predecessor courts, and if so, to what effect? My aim in this article is to explore these thorny questions.

I. FROM MARBURY TO GUINN: HAS THE NATURE OF JUDICIAL REVIEW CHANGED?

Before embarking on the principal inquiry, it is important to remember the precise claim that Chief Justice Marshall actually staked out in Marbury v. Madison. It was not, as many have apparently come to believe, that the courts are the only arbiter of constitutional questions.⁹ Nor was it even that the Supreme Court is *717 the final arbiter of all constitutional questions, not just for the judicial branch but for all three branches of government, though that was certainly urged by Marbury’s counsel, who made the following argument to the Court:

This is the supreme court, and by reason of its supremacy must have the superintendance of the inferior tribunals and officers, whether judicial or ministerial. In this respect there is no difference between a judicial and a ministerial officer.¹⁰

Rather, Marshall made the much more limited, common-sense claim that, in a regime operating under a constitution by which only certain limited, enumerated powers were granted to the government, laws made in excess of that delegated authority could not be applied by judges bound by oath to uphold the Constitution.¹¹ The courts, then, were not only authorized to refuse to give unlawful statutes any effect in the cases before them, but were in fact obligated to take that course.

Marshall was not the first to make such a claim, of course. Alexander Hamilton made it explicitly in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges *718 would amount to nothing.¹²

Although in his Federalist 78 discussion Hamilton seems to limit judicial review to express constitutional prohibitions such as those contained in Article I, sections 9 and 10 of the Constitution (rather than the limits inherent in the enumerated powers listed in Article I, section 8), others were not so stingy. Oliver Ellsworth, for example, expressly contended during the Connecticut ratifying convention that judicial review would also be available to enforce the limits of the powers granted to the national government:

This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.¹³

Indeed, the idea that judicial review would be used to insure conformity with all the Constitution’s provisions–the limits of enumerated powers as well as the express prohibitions–seems to have been assumed by the delegates to the constitutional convention, even during a debate in which the convention rejected efforts to have the Supreme Court justices serve as a council of revision that would have a share in the President’s veto power. George Mason noted, for example, that judges “could declare an unconstitutional law void.”¹⁴ Luther Martin, who opposed including Supreme Court justices in a council of revision, and James Wilson, who supported such a council, both agreed that judges, in their judicial capacity, would already have “a negative on the laws.”¹⁵ The debate over the council of revision was thus about whether the justices should also have the power to negate laws on policy grounds before they took effect, not whether they would be obliged, when asked to enforce an unconstitutional law in a case or controversy before them, to give effect to the unconstitutional law, the Constitution itself notwithstanding.¹⁶

*719 Marshall’s holding in Marbury is therefore really not very surprising. Each officer of government has an equal obligation, by oath, “to support [the] Constitution,”¹⁷ and, as Randy Barnett has recently pointed out, each does so at the appropriate point in the constitutional process.¹⁸ Should Congress deem a bill to be unconstitutional, it simply does not enact it.¹⁹ Should the President deem a bill presented to him by Congress to be unconstitutional, he vetoes it.²⁰ And should the courts deem an enacted statute to be unconstitutional, they simply do not give it effect in cases that come before them. Thus far, there is perfect equality between the three branches of government (and, I should note, between the branches of the federal government and those of the state governments). As Madison himself noted in Federalist 49: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers ….”²¹ That was the limit of Marshall’s holding in Marbury–call it the first quarter of a constitutional competition. Indeed, had Marshall ruled otherwise, the courts would have been bound to accept Congress’s interpretation of its own powers, and to that extent the judiciary would be inferior to, rather than the equal of, the legislative branch.

*720 The constitutional competition gets interesting, though, when it moves into the second quarter and beyond; that is, when the branches disagree as to constitutionality. One possibility might well be that no law can take effect, and remain in effect, without the concurrence of all three branches of government, just as, absent a veto override, no bill can become a law without the concurrence of both houses of Congress and the President.²² But the constitutional text itself already disclaims that possibility, at least in some circumstances. A presidential veto, on constitutional grounds,²³ can be overridden by a two-thirds supermajority vote of both houses of Congress, such that the bill will become law even over the constitutional objection of one branch of the government.²⁴

Does this mean that the Congress is in fact more equal than the President in the separation-of-powers balance? Well, not exactly. It simply means that the Congress has a mechanism to pursue its view of the matter when it is adamant about both the constitutionality of its bill and the need for the policy sought to be achieved by it. But the President is likewise not without power to give effect to his view of a bill’s unconstitutionality even in the event of a veto override, if he is in turn equally adamant. He can simply decline to enforce the new law, treating his constitutional obligation “to take care that the laws be faithfully executed”²⁵ as obliging him not to enforce laws that, in his view, would amount to a breach of his oath to “preserve, protect and defend” the Constitution itself.²⁶ Congress can, in turn, use its other powers to reassert its view once again. It can mandate that the executive branch take certain actions and attempt to limit executive action through statutory restraint;²⁷ bar funding to any department *721 that does not accede to its wishes;²⁸ even impeach executive branch officials, up to and including the President himself, for their failure to execute the laws faithfully, as Congress interprets “faithfully.”²⁹ The fact that the President and the Congress each has an answer to the other at every stage of this ping-pong match should come as no surprise; it necessarily follows from a system where co-equal branches were designed to serve as a check on one another,³⁰ with tepid or weak-hearted objections by either side losing out along the way to the determined certitude of the other. Even if the dispute rises to the level of impeachment–what we might call sudden death in our constitutional game–the President can ultimately defend his actions with an appeal directly to the people,³¹ who in that event will render judgment at the next election and, as a result, be the final arbiter of the constitutional question, just as the theory of the Constitution says they should be.³²

Indeed, this very scenario played out with the impeachment of President Andrew Johnson in the aftermath of the Civil War. Congress passed the Tenure of Office Act in 1867 to prevent President Johnson from removing cabinet-level appointees of the late President Abraham Lincoln. President Johnson vetoed the bill as an unconstitutional intrusion upon his appointment and removal power, but Congress overrode the veto and the bill became law. The President nevertheless refused to comply with the law, holding firm to his position as to its unconstitutionality when he fired Lincoln’s Secretary of War, Edwin Stanton. The House of Representatives responded by voting for articles of impeachment against President Johnson, but the Senate backed down from the constitutional confrontation the Congress had initiated, voting 35-19 in favor of the *722 impeachment, one vote short of the two-thirds vote needed for conviction.³³

Marshall’s holding in Marbury was, as I noted, limited to the first quarter of this constitutional game. Indeed, Marshall cleverly wrote his opinion so as steadfastly to avoid taking the game beyond the first quarter. He did not issue a writ of mandamus to Secretary of State Madison, for example, or even compel any of the lower executive branch officers to testify over their objection,³⁴ because either order might well have been refused³⁵ as improperly rendering the executive branch subservient to the judicial branch.

So how then did we get from Marbury to Guinn and Goodridge, the cases I mentioned briefly at the outset of this paper? Nevada Governor Guinn filed a petition for a writ of mandamus, asking the Nevada Supreme Court to order the State Legislature to complete work on a tax increase to fund K-12 education for the coming fiscal year.³⁶ An extraordinary request in its own right, the remedy provided by the Nevada Supreme Court was even more audacious. Because the stand-off in the Legislature had been manufactured (or, perhaps, just so happened) to pit the education funding mandated by one provision of the Nevada Constitution³⁷ against the two-thirds vote requirement for tax increases contained in another, more recent provision of the Nevada Constitution,³⁸ the Nevada Supreme Court took it upon itself, without request even from the Governor petitioner in the case, to order that the Legislature proceed to consider a tax increase “under simple majority rule,” in acknowledged violation of the State Constitution.³⁹ In the course of rendering its opinion, the Nevada Supreme Court stated that it was taking the action pursuant to its role as interpreter of the State Constitution, as if neither of the *723 other two branches of government had any independent obligation to interpret the State Constitution themselves.⁴⁰

Similarly, the Massachusetts Supreme Judicial Court in Goodridge took it upon itself to redefine both statutory and constitutional law, altering a couple of millennia of understanding of the nature of “marriage” in the process.⁴¹ The Supreme Judicial Court noted that it was “mindful” that the decision “marks a change in the history of our marriage law” but concluded that the existing marriage laws had no rational basis, even while the Court purported to “give[] full deference to the arguments made by the Commonwealth.”⁴² The majority, chastising the three dissenting judges for “label[ing] the court’s role as usurping that of the Legislature,” asserted that the dissenters “misunderstand the nature and purpose of judicial review.”⁴³

Although both holdings are a significant expansion of the Marbury holding, they are not without precedent. Legal scholars have generally recognized that a similar expansion was undertaken by the Supreme Court itself in Cooper v. Aaron.⁴⁴ Relying on a statement of obiter *724 dictum from Marbury rather than the actual holding, the Supreme Court in Cooper held that the Governor of Arkansas was bound by a federal court constitutional interpretation in a separate school desegregation case to which neither the Governor nor the State of Arkansas was party:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”⁴⁵

Note just how significant an expansion of Marbury the Court’s holding in Cooper v. Aaron really is. Whereas Marbury was on its face grounded in an equality of the branches, each having its own independent right and obligation to interpret and be bound by the Constitution in matters coming before it, the holding in Cooper is fundamentally grounded on the claim that the judiciary is superior to all other branches of government. Once the judiciary interprets the Constitution, everyone else is bound by that interpretation–not just those who were party to the case where the interpretation was provided, but all other public officials, executive as well as legislative, federal as well as state, who had no opportunity to be heard before the initial ruling was handed down. In other words, far from the judiciary being but one equal part in a sophisticated system of checks and balances where each branch checks the other, the judiciary becomes, under this view, the principal and final check on the rest of government, with nothing, not even the law itself, serving as a check on it.

*725 II. IS TREATING THE SUPREME COURT AS SUPREME REALLY SUCH A PROBLEM?

One response to Cooper v. Aaron might be: “So what? Just what is wrong with having the Supreme Court be Supreme? The final word has to reside somewhere, and given the founders’ concern with a legislative tyranny of the majority,⁴⁶ or a kingly executive tyranny,⁴⁷ would it not be preferable to place that final authority in the Supreme Court, sufficiently wise to render good judgments and sufficiently removed from the people so as not to be swayed by their temporary passions?” I will discuss two important objections to such a view. First, there is no reason to believe that the judiciary would not be just as susceptible to tyranny as other branches; indeed, the very independence of the courts might well make them more susceptible to tyrannical tendencies. Second, in practice, judicial supremacy operates less to restrain the other branches than to sanction their own breaches of the Constitution’s limits and prohibitions.⁴⁸

A. Supreme Authority Can Be Despotic Authority⁴⁹

Thomas Jefferson early on saw the danger that any claim of judicial supremacy would pose. Writing to Abigail Adams shortly after the decision in Marbury, Jefferson acknowledged that the Court would be obliged to rule on the validity of the Alien and Sedition Act in any case that came before it involving a prosecution under the Act. But Jefferson was unwilling to treat any approval of the Act by the Court as binding upon him as President:

The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, …. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it, because that power has been confided to him by the Constitution. That instrument meant that its coordinate branches *726 should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislative and Executive also in their spheres, would make the Judiciary a despotic branch.⁵⁰

Jefferson did not simply arrive at this conclusion once he was President. As Madison reports in Federalist 49, Jefferson had proposed as early as 1783 that constitutional conventions should be called to correct breaches of the Constitution.⁵¹ This was necessary, he argued, because it was the people, rather than any branch of government, who were the ultimate sovereign:

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority … whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.⁵²

Nor did Jefferson’s objection fade away with Jefferson himself. Abraham Lincoln, criticizing the Supreme Court’s decision in Dred Scott v. Sandford,⁵³ made the identical point in his First Inaugural Address:

[T]he candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decision of the Supreme Court, … 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.⁵⁴

Of course, we must ask ourselves what it would be like if each *727 branch got to determine for itself questions of constitutional law. In one sense, Cooper v. Aaron seems relatively compelling by the nature of litigation. The Governor of Arkansas might not technically have been bound by the ruling in Brown v. Board of Education because he was not a party to it, but he surely would be bound by it (or rather, the lower courts would be bound by it to reach the same conclusion) should some plaintiff initiate parallel litigation to desegregate Arkansas schools. Is it really necessary to flood the courts with duplicative litigation, challenging futile objections of recalcitrant executive (or legislative) officials? Put in that light, Cooper v. Aaron seems perfectly sensible. Unless, of course, we agree with Jefferson’s concern that allowing the judiciary to have the final, or indeed the only, say on matters constitutional would make of it a “despotic branch,” not just unchecked by the other branches of government, but ultimately unanswerable even to the people themselves.⁵⁵

The Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey⁵⁶ demonstrates just how the claim of judicial supremacy among the branches of government necessarily leads to a claim of judicial supremacy even against the will of the people themselves. In their plurality opinion, Justices O’Connor, Kennedy, and Souter made the extraordinary claim that the Court’s decision in Roe v. Wade⁵⁷ resolved not just the constitutional question in the actual case before it, as Marshall’s holding in Marbury held it was obligated to do, nor the further claim that it resolved it for all governmental officials in similar contexts, as Cooper v. Aaron held, but that it resolved it forever more, cutting off even debate on the correctness of the decision:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

*728 The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe.⁵⁸ But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.⁵⁹

By contending that they should not overrule Roe because to do so would be seen as “a surrender to political pressure,” Justices O’Connor, Kennedy, and Souter rejected the foundational principle of our constitutional order, namely, that the people are the ultimate sovereign.⁶⁰ They rejected Jefferson, Madison, and the near-uniform opinion of our nation’s founders. They rejected Lincoln (or rather embraced the consequence he feared, that should the Supreme Court itself have the final, unchecked authority to fix by interpretation the provisions of the Constitution, “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”).⁶¹ Indeed, the Justices demonstrated their utter ignorance of this fundamental maxim of republican government by erroneously noting earlier in the opinion that “[t]he root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court.”⁶²

That these Justices reached these extraordinary conclusions– *729 issued their incredible edict might be more apt–despite their express acknowledgement that Roe might well have been wrongly decided,⁶³ dispels any pretense that they were simply trying to enforce the commands of the Constitution against obstinate elected officials and a tyrannical majority of the citizenry, and we are left with the raw power of absolute judicial supremacy–“a despotic branch,” to borrow again Jefferson’s phrase.⁶⁴

Besides, what would be wrong with the application of bilateral checks and balances between the court and the other branches, in much the same way as President and Congress check each other? Following a constitutional ruling, the other branches are not (or at least should not be) without power. The executive could decline to enforce a particular statute that had been held to be constitutional, for example, as Jefferson suggested, if it was adamant in its belief that the statute was unconstitutional.⁶⁵ Indeed, on Marshall’s own reasoning in Marbury, such a course would seem to be compelled by the oath that the Executive himself takes to defend the Constitution.⁶⁶ Although the circumstances presented by Cooper v. Aaron are more problematic– namely, a court ruling that a particular governmental action is unconstitutional–Congress could limit the courts’ jurisdiction to hold government officials in contempt for violating a rule that issued from a case in which they (or their office) was not a party, and such officials could then persist in the conduct until such time as a case was brought specifically against them.⁶⁷ At least one President reportedly believed that a chief executive could refuse to comply with a court’s order to cease a particular action if he was really adamant in his view of the constitutionality (and presumably the necessity) of his action.⁶⁸

*730 The legislature, too, could more boldly use its powers to respond to what it considers to be erroneous judicial decisions. It could re-enact legislation contrary to the Court’s ruling, prefaced with its own finding of constitutionality, as Congress did with The Federal Flag Protection Act of 1989,⁶⁹ a federal statute making it illegal to burn the flag, despite the Court’s holding in Texas v. Johnson⁷⁰ that flag burning bans were an unconstitutional infringement of the Freedom of Speech protected by the First Amendment–or as Congress did when it enacted The Religious Freedom Restoration Act of 1993 (“RFRA”)⁷¹ to restore the compelling interest test when assessing generally applicable laws against free exercise of religion claims, despite the lower standard of review adopted by the Supreme Court in Employment Division v. Smith.⁷²

Of course, just as with the ping-pong match between President and Congress described above, the Court could counter with its own assertion of power. It can strike down the new legislation just as it did the old, as it did in United States v. Eichman,⁷³ when it invalidated the Flag Protection Act, or in City of Boerne v. Flores,⁷⁴ when it invalidated RFRA. It could reiterate its ruling against one executive official when another appears before it in an identical case. But in both of these circumstances, it is (or at least should be, in a regime of co-equal branches) incumbent upon the Court to give added consideration to the now-more-adamant constitutional claims of its co-equal branches, perhaps even to be persuaded by them.

In City of Boerne, for example, Justice O’Connor took the opportunity presented by Congress’s rejection of the Court’s ruling in *731 Employment Division to re-assess the correctness of that decision.⁷⁵ But the Court itself did not follow that course in City of Boerne, nor did it follow that course in Cooper v. Aaron, in Eichman, in Casey, or in countless other cases. Instead, the Court has reacted to the perfectly legitimate challenges to the validity of its prior decisions with an air of kingly nobility, treating the more vigorous assertions of constitutionality by elected government officials (who, after all, take the same oath as the judges take) as an affront to the Court’s dignity, a challenge to the Court’s station as first among equals.⁷⁶ In City of Boerne, for example, instead of joining in Justice O’Connor’s reassessment (whether or not it chose to reaffirm the original ruling), the Court simply asserted that the matter had been preemptively settled by Employment Division v. Smith, and that Congress had no authority to say otherwise.⁷⁷

This claim of ultimate and absolute supremacy is really an intolerable usurpation of power, and so it must be asked whether Congress and the President (or, perhaps, state legislatures and state executives) have any further check on the awesome power that courts have claimed for themselves. One possibility is legislative persistence. Congress can keep re-enacting statutes it believes to be constitutional despite court rulings to the contrary, as some have contended it did by enacting The Religious Land Use and Institutionalized Persons Act,⁷⁸ which once again challenged the holding in Employment Division v. Smith.⁷⁹ At some point, whether through change in personnel or just simple fatigue, the Court might back away from its initial ruling in the face of such repeated *732 challenges.

Other possibilities are more bold, certainly more controversial, but not altogether without precedent. Congress might strip the courts of jurisdiction over the subject matter of a holding that Congress believes to be erroneous, arguably clearing the way for new legislation that would go unchallenged.⁸⁰ It might use the appropriation power to bar executive enforcement of the offending judicial decision.⁸¹ It might even use the same “sudden death” power I described above–impeaching judges who persisted in the view, contrary to their oath of office, that the judicial branch was superior not only to the other branches but to the people themselves and their Constitution.⁸² And the public trial in the Senate would afford a judge the same kind of bully pulpit to defend his action that the President had, with Senators fully aware that success in their next election might well turn on how well they make their case in the court of public opinion. Far from a constitutional crisis, this is precisely how a system of checks and balances is supposed to work, with the final decision on contested matters ultimately resting with the people themselves.

B. In Practice, Judicial Supremacy Means Judicial Abdication

There is a second, perhaps even more important, problem with the Court’s claim of interpretive supremacy. As a result of that claim, ironically, the Court has ceased to be a real check on the other branches, becoming instead a blank check, providing cover for the elected branches to exceed their own constitutional authority or to ignore their own constitutional oaths and obligations. Jonathan Swift describes just this problem in Gulliver’s Travels:

[Stare decisis] is a maxim among … lawyers, that whatever has *733 been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind.⁸³

So successful and complete has been the Court’s assertion of sole and final interpretative authority that the elected branches rarely engage anymore in their own constitutional inquiries. Anything that the Court has previously said is permissible remains so, even if members of Congress think otherwise. Troubling enough when the Court has itself been scrupulous in addressing questions of constitutionality, the solace Congress finds in prior Court decisions is simply intolerable in matters where the Court has in the past candidly admitted that its decisions were not grounded in the Constitution, and where the Court nevertheless continues to adhere to such decisions on grounds of a misconceived stare decisis.⁸⁴ The New Deal-era Court’s expansive interpretation of Congress’s power under the Commerce Clause, for example, was grounded not in the Constitution itself but in the Court’s view that the old limits of the Constitution were no longer workable in a modern commercial administrative state.⁸⁵ Similarly, while mouthing that the Spending Clause has limits, the Court has adopted an interpretation that renders any such limits utterly unenforceable.⁸⁶

How has Congress reacted to such decisions? Just as one might suspect. The Court has told Congress that it has authority basically to regulate whatever it wants, if it can simply assert that, in the aggregate, the object of its regulation (or perhaps even the regulation *734 itself) has a substantial effect on interstate commerce, a hurdle that almost nothing will fail to surmount.⁸⁷ So Congress does not even bother to consider the constitutionality of its own actions; it has simply regulated whatever and wherever it wants. Similarly, the Court has told Congress that it can spend for whatever purpose it believes to be in the nation’s welfare. Not surprisingly, Congress has spent like a bunch of drunken sailors–actually, worse than a bunch of drunken sailors; drunken sailors are usually forced to stop their spending spree when they run out of money!

To appreciate how pervasive the problem is, consider this. Not too long ago, some members of Congress were able to push through a resolution requiring that every new bill cite the source of constitutional authority for the bill.⁸⁸ The effort to induce members of Congress actually to consider the obligation imposed upon them by their oath of office was laughable. Any bill that was not authorized by a specialized clause of the Constitution, such as the patent clause, or the power to raise and support an army, was simply chalked up to “the Commerce Clause,” if a regulation, or “the Spending Clause,” if an appropriation.⁸⁹ What more need be said; the Court had given Congress a virtually unlimited blank check to legislate under each clause.

But the matter is worse even than I have just described. Through a series of decisions ostensibly designed to afford respect to its co-equal *735 branches of government, the Court has itself abdicated what little desire it had left to enforce the Constitution’s limits. The Court presumes that acts of Congress are constitutional, despite the clear evidence that in most cases Congress does not even bother to address constitutionality.⁹⁰ The Court affords a great deal of deference to executive branch regulatory lawmaking,⁹¹ despite the fact that the Constitution expressly assigns the lawmaking power to Congress,⁹² despite the well-documented problem that administrative agencies are often captured by the very interests they were established to regulate,⁹³ and despite well-documented efforts by congressional committee chairman to achieve via implementing regulation what they could not achieve on the floor of Congress itself.⁹⁴ The Court also affords a great deal of deference to executive enforcement actions, effectively treating them as a determination by the executive that the statute being enforced is constitutional⁹⁵ despite the well-known policy of the Department of Justice to come to the defense of any agency action for which even a remotely colorable argument can be made⁹⁶–arguments all too often based on the same expansive *736 judicial interpretations that led Congress to abdicate its own similar responsibilities.

But if Congress is not considering the constitutionality of laws it passes, and if the executive is not considering the constitutionality of the laws it enforces, and if the judiciary is, through its doctrines of deference and presumption, also not really considering constitutionality, just who is? The answer, disconcertingly, is all too often no one, and the elaborate system of checks and balances that is supposed to ensure that each branch of the government exercises only the powers delegated to it by the people gives way to what might arguably be deemed a conspiracy to permit systemic violations of the Constitution.

III. THE COURT’S RECENT UNENUMERATED RIGHTS JURISPRUDENCE EXACERBATES THE JUDICIAL SUPREMACY PROBLEM.

As troubling as the case I have just presented might be, the problem is actually much worse than I have described. The title of this paper suggests that the problem of judicial supremacy is made worse by the Court’s recent unenumerated rights jurisprudence. In a certain sense that is correct, but I prefer to place the principal blame with Oliver Wendell Holmes and the triumph of his life’s mission (or at least one of them) in Erie Railroad Co. v. Tompkins⁹⁷ than with Earl Warren and any number of decisions that were imposed on the country by the Warren Court.

To be sure, the Warren Court’s journey to the land of penumbral emanations from unenumerated rights allowed it to lay claim to a supremacy never envisioned by Chief Justice Marshall in Marbury. No longer need the Court point to some provision of the Constitution as authority to invalidate an act of Congress or of a state legislature; it was enough if the act offended the Court’s own evolving sense of fairness. The transfer of power occasioned by the Warren Court’s methodology from legislature to the courts, and even more fundamentally from the people to unelected judges, should be manifest.

*737 As I noted in the introduction, though, we have long acknowledged a role for the courts in giving effect to certain fundamental principles of justice, even if those principles were not elaborately spelled out in the positive law.⁹⁸ Although the Ninth Amendment does not explicitly assign such a power to the Courts, it certainly embraces the idea of unenumerated rights, and we should be hard pressed to deny to the courts any power to enforce such rights. As the ancient philosophers recognized, laws made in violation of the principles of the natural law were void.⁹⁹ Surely a court should not give such “laws” effect.

The problem was thus not with the Warren Court’s resort to unenumerated rights. The problem arose earlier, with the Court’s rejection of any standard by which to judge unenumerated rights. For Jefferson and the other founders of this nation, those who joined in the Declaration of Independence and those who drafted and ratified the Constitution, the claim of rights was self-evident and inalienable, grounded in the self-evident truth of human equality.¹⁰⁰ As readily as any Euclidean proof flows from its postulates, the necessity of government by consent, of limited government, even of judicial review itself, all followed from those initial truths. In such a world, it was possible to say, with some measure of certainty, that certain acts of the legislature (for they should not be called “laws”) were unlawful even though not in violation of an express constitutional provision.¹⁰¹ There were simply certain things that even a majority could not do, and an independent judiciary, trained in the principles of the common law (which was but the historical development of the natural law),¹⁰² was perfectly well-suited to give effect to that unwritten higher law.¹⁰³

*738 That view of the world was challenged most openly by Oliver Wendell Holmes. Articulating a radically different view of the common law in his book of the same name,¹⁰⁴ Holmes staked out the position that today we know as legal realism. For Holmes, there was no such thing as a self-evident truth, which the common law sought to articulate. Rather, the common law was just the exercise of lawmaking power from the bench rather than from the halls of Congress. Taking aim at Justice Joseph Story, who adhered to the traditional view, Holmes wrote in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.¹⁰⁵ that Story’s opinion in Swift v. Tyson,¹⁰⁶ holding that federal courts were not bound by state court interpretations of state common law, reflected the notion that “There is one August corpus” of common law, “a transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute.”¹⁰⁷ Story’s belief in a “transcendental body of law” meant that the federal courts were as capable of rendering opinions attempting to articulate that body of law as were the state courts; the notion that they had to defer to what were in their view erroneous decisions of the state courts was therefore anathema to the very enterprise.

*739 Holmes dissented in the Black & White Taxicab case, but his position emerged victorious a decade later in Erie. In that case, the Court held that when sitting in diversity and applying state law, federal courts were as much bound by state court common law pronouncements as they were by state legislative acts.¹⁰⁸ This, according to the Court, because the notion that the courts were simply trying to discover and apply some inherent truth was not true.¹⁰⁹ There was no such thing as truth.¹¹⁰

At first blush, Erie appears an unlikely source of the Warren Court’s expansion of judicial power. After all, on its face the case actually restricts the power of the federal courts vis-à-vis the state courts. But by unhitching the common law from its natural law mooring, the Court also unhitched the doctrine of unenumerated rights from its own natural law mooring, leaving the Court free to become a roving commission, striking down any act of any legislature that infringed upon its own evolving sense of fairness.

With the Courts now routinely staking a claim to what really amounts to absolute power, the only question that remains is why should the rest of us– elected officials or the people generally–continue to tolerate any measure of judicial review. No particular expertise in the natural law is required,¹¹¹ if the very idea of a natural law has been rejected. No particular skill in statutory or constitutional construction is required, if the provisions of statute and constitution are not to be binding. All that is required is for the courts to assert that, in their view, some statute is an improper infringement of some evolving or new-found right, as they see it (or even more obnoxiously, as they believe the people see it). Yet it is difficult to articulate why the judicial branch, as opposed to the democratically elected legislative, should claim to be the authoritative interpreters of the public’s desire for newfound and unenumerated rights. Luther Martin, arguing against having the Supreme Court serve as a council of revision, noted during the constitutional convention that “A *740 knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.”¹¹²

Indeed, do not the elected branches have a better claim to authority for this new enterprise? After all, elected officials at least have to face public opinion every election cycle and suffer its wrath if they are wrong. And in a world grounded in the rejection of any immutable truth, legislative pronouncements have the added advantage of being able to claim that they reflect majority will.

The right solution, of course, is for the courts to turn back to a jurisprudence grounded in the natural law principles of the Declaration of Independence–Justice Clarence Thomas has at times embarked upon just such a task.¹¹³ But absent a recourse to such principles, the courts should not be surprised if legislatures, executives, and even the people themselves give less and less credence to their dictates. A “Rule of Law” that is itself lawless is not the kind of “law” that generates (or deserves) respect. In other words, we can expect many more Judge Roy Moores unless and until the Holmesian heresy is finally defeated and the “least dangerous branch” taken down from its pedestal and restored to its co-equal station in the government, exercising judgment and not will.