One criticism of judicial supremacy, the idea that the courts and the Supreme Court in particular are the sole authority as to the meaning of the Constitution, is presented as follows in the reading:
To my mind this line of thinking illustrates what's wrong with the way we think about these things. In Plessy, the Supreme Court said something which was very, very wrong. I think it is very probably that, had Congress chosen to pass a law between Plessy and Brown declaring segregation unconstitutional and outlawing it both at the federal and state levels, the Court would have upheld that law under Section Five of the 14th Amendment, authorizing Congress to enforce the Amendment through appropriate legislation. Congress, of course, did not do this. A Presidential attempt to do the same would have run afoul of the fact that this enforcement power is given to Congress. But note that an attempt by an individual citizen to change the ruling could, of course, succeed, because one ultimately did. Saying that, as a matter of governmental structure, the Supreme Court is the sole final arbiter of the Constitution does not mean that its pronouncements must be considered to be correct by the general citizenry, only that they must be considered to be binding. Binding, moreover, in the particular sense that one can expect that the Court will be willing to enforce its pronouncement again if it has occasion to, and therefore binding only as long as the Court actually does agree with its own pronouncements.
On a view of judicial supremacy, perhaps best exemplified by the Boerne case, the Court’s interpretation of the meaning of the Constitution cannot be corrected by any of the other branches, including by direct attempts by Congress to reverse Supreme Court decisions by statute as opposed to be constitutional amendment. One problem with an understanding of the Court as a supreme interpreter is that it seems to suggest that even when the Court interprets the Constitution in a way that is flawed (think, for instance, of Plessy v. Ferguson, establishing the principle that segregation is consistent with the Equal Protection Clause of the Fourteenth Amendment), its decisions still must be respected as final and authoritative interpretations.
A better example, I think, is the whole flag-burning incident. Congress passed a law. The Court struck it down. Congress then passed the same law again. The Court struck it down, again, and with more than a little bit of vexation at Congress' antics. If the fundamental logic of judicial review is appropriate, and if the Court's initial pronouncement was correct, then it should of course have struck down the second law. The Constitution, after all, had not changed. Frequently when we talk about the Constitution we mean the parts of the machinery of government created by the Constitution that can and frequently do come before a court of law. In that sphere, because the judgment of a court is binding in any particular case, the considered opinion of the judiciary as to the meaning of the document is of course supreme. Congress is perfectly well entitled to continue passing the flag-burning law as long as it wants, and the President is entitled to try to enforce it. But the people indicted under it will be perfectly entitled to sue in the federal courts, alleging that the law is (still) unconstitutional. And, being right about that, they will win. And then they will have to be released without a stain on their character. Because Congress and the President understand that this is how it would play out, they don't bother trying. But it's perfectly well within their rights to try, if they really wanted to.
Again, all of this just strikes me as profoundly fundamental and simple. I wonder why other people don't see it as such.
No comments:
Post a Comment