Is the Court Supreme?

The complaint about judicial activism and overreach is common within conservative circles, and accurate. Over the past few decades, a number of Supreme Court decisions have been handed down which seem to require not obedience to the Constitution of the United States of America but obedience to the worldview of the majority of the Court. The basis for all of this, of course, is the Supreme Court's supreme authority when it comes to constitutional interpretation: if there's a question about what the Constitution means viz. a particular law, the Court has the last word.

Or does it?

This week Chuck Colson raised the issue in one of his daily Breakpoints. The context of the piece is a discussion of President Lincoln and his response to the Dred Scot Supreme Court case, in which the Court ruled that slaves were private property, i.e. not persons with rights.

In the course of his discussion, Colson refers to an article written by Robert George in First Things entitled, "Lincoln on Judicial Despotism". In the article, George uses the Dred Scott case to set the stage for an argument that the Court today has far exceeded its power as set forth by the Constitution.

Another article from First Things--this one from '99--makes a similar case. In "How the Court Became Supreme", Robert Clinton argues that the famous case Marbury vs. Madison--in which the judicial review was established--has been reinterpreted by today's Court, resulting in (an unconstitutional) judicial supremacy.

Finally, on Wednesday this week Stuart Buck linked a law review article entitled "The Irrepressible Myth of Marbury", in which Michael Stokes Paulsen (U. Minnesota) argues that--as Stuart summarizes--"the reasoning used by Justice Marshall in Marbury v. Madison logically and inexorably leads not to judicial supremacy, as is so often thought, but to the right of both the executive and legislative branches to interpret the Constitution for themselves, even to the point of refusing to enforce a judicial decision that departs from the Constitution." Stuart explains the importance of such an argument: "Marshall supported judicial review by saying that if a judge is presented with a law that appears to him to violate the Constitution, his oath to the Constitution must come first. According to Paulsen, the exact same logic applies to the other branches: If a President is presented with a judicial decision that appears to him to violate the Constitution, his oath to the Constitution must come first.

Maybe the Court isn't as supreme as it -- and most of us -- think.