The Sotomayor confirmation hearings are dominating the news all this
week, though the outcome is a virtual certainty. One of the chief
highlights of investing some time into watching them is seeing what
Supreme Court jurisprudence means in our representative republic at
this point in history.
C’mon, pay attention. I was asked on radio this week whether most Americans really don’t follow these things and don’t much care. Okay, probably.
But two things come immediately to mind here: One…whoever disregards
important and historical events in the republic that so clearly
illustrate the wisdom that ‘elections have consequences’, relinquishes
their right to complain about how bad things get when they do. And
two…more people in America seem to be engaged now in the political
process than in decades.
On that radio program this week, one caller asked why the Supreme
Court has such unchecked power, and whether anything can be done about
it. Good question(s). Judge Robert Bork has referred to Supreme Court
justices as ‘little kings’, and indeed some see themselves as such.
A good place to start is with the Supreme Court’s
self-understanding—the justices’ own understanding of their power under
the Constitution—which turns out to be ahistorical and self-serving.
And he was beckoning back as far as 1803, tracing it to 1958. It has become worse.
Nothing the Court has done or said in the last half
century has deviated from this understanding of its unrivalled
authority to interpret the Constitution, and the Cooper doctrine was a
long time gestating before the justices delivered it in 1958. But it
is, or ought to be, a shocking view to take of our constitutional
order. Judicial supremacy—the doctrine that the nation’s governing
charter means whatever a majority of Supreme Court justices say it
means—is profoundly inimical to the separation of powers, to
republicanism, and even to constitutionalism and the rule of law
There’s an upside and downside to this review.
The good news is that the Cooper opinion was wrong about Marbury,
which in fact set forth a far more limited understanding of judicial
power, consistent with the framers’ republicanism and separation of
powers. The bad news is that our political system suffers from the
disordering effects of judicial supremacy with no easy or obvious way
out of the disorder.
So, we have a disordered legal/judicial system.
It is doubtless no accident that while the founders’
limited understanding of judicial power prevailed only one provision of
federal law (in the Marbury case itself) was ever held
unconstitutional. On the second occasion when the Court exercised this
power—in the infamous Dred Scott decision of 1857—its ruling
was transparently improper, intruding on Congress’s power to govern the
federal territories and straining to manufacture a “right” to keep and
transport slaves under the due process clause.
Abraham Lincoln saw through the great fraud of the Dred Scott
case, identified the tyrannical impulse of the Court, and spoke for the
founders’ constitutional understanding in his first inaugural address
Read Lincoln. See how he regarded the binding nature of Supreme
Court rulings and the consequent denial of citizens’ rights to be their
own leaders. They will have “resigned their government into the hands
of that eminent tribunal.”
Lincoln’s election to the presidency was, among other
things, a repudiation of the doctrine of judicial supremacy espoused by
his great rival Stephen A. Douglas. Yet in the seven score and nine
years since that election, Douglas’s doctrine has become American
With Douglas, our political and legal elites today regard the denial
of the binding character of any Supreme Court decision as a betrayal of
the Constitution itself; Lincoln’s position is made to sound strange
and jangling to our ears, and we are soothed into resigning our
government’s weightiest matters into the hands of our eminent
philosopher-kings in robes, who are happy to employ such an unchecked
We’re about to anoint another one, at the end of this week’s proceedings.