Judicial Supremacy Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Broadly speaking, judicial supremacy is the position that courts have supreme or final power to interpret a nation’s constitution or supreme law. A person who subscribes to judicial supremacy supports the rulings of judges even despite any belief that such rulings are based on incorrect or flawed interpretations of the constitution.

Scholars, politicians, judges, and other commentators who reference judicial supremacy are frequently imprecise, linking the concept with a range of different practices and beliefs. Nevertheless, one should distinguish judicial supremacy from judicial exclusivity, the view that courts alone should have the power to engage in constitutional interpretation, as well as judicial review, the specific power of courts to invalidate government action on constitutional grounds. Supporters of judicial supremacy necessarily believe in judicial review, but do not automatically believe in exclusivity. A judicial supremacist might recognize that legislative and executive bodies, state officials, and even the populace at large could discuss the meaning of a constitution, so long as, at the end of the day, these interpretations were subordinate to courts’ views.

Arguments For Judicial Supremacy

Defenders of judicial supremacy advance three general arguments in support of this practice. First, giving courts final authority to determine the meaning of a constitution is supposed to be instrumental for enforcing this document as a nation’s highest law. Without supremacy, a constitution’s limits on government powers and protection of rights might be compromised by the encroachments of other government officials, or by the confusion created by having multiple and perhaps contradictory readings of law. Judicial supremacy recognizes courts—with some supreme tribunal at the apex of the judiciary—as the designated referees for working out constitutional disputes between political institutions and between government and citizens. This arrangement purportedly ensures that a constitution’s meaning and application is unambiguous, stable, and somewhat insulated from the electoral and transitory concerns that often motivate political figures such as legislators. Larry Alexander and Fred Schauer have elegantly articulated this argument, concluding that judicial supremacy supports a constitution’s capacity “to achieve a degree of settlement and stability, and . . . remove a series of transcendent questions from short-term majoritarian control” (1997, 1380).

A second justification for judicial supremacy contends that it is a necessary arrangement because of the status of constitutional interpretation as a branch of law. Under this understanding, the superior capacity of judges to elucidate constitutional meaning must be recognized and protected due to their specialized training and capacity for dispassionate legal analysis. One version of this argument (famously set out in the U.S. case Marbury v. Madison) holds that because a constitution is law, and judges are distinctively associated with interpreting law, it is their privileged duty to give meaning to the constitution.

Finally, some argue that, especially in systems of governance based on the separation of powers, judicial supremacy is necessary to protect the independence of jurists. Without supremacy, courts would be institutionally impotent, possessing insufficient tools to promote their special functions and to check the other branches of government.

A number of other factors account for countries’ acceptance of this enormous power in the judiciary. In some cases, nonjudicial officials use courts’ status as supreme constitutional interpreters to help enact legal change. If a governing coalition can get the support of judges protected by judicial supremacy, they gain a decisive ally in efforts to chart a new policy path. Keith Whittington (2009) has shown how presidents often will entrench or expand judicial power (including interpretive supremacy) to develop their own policy and partisan goals, or to navigate uncertain political and electoral waters. Judicial supremacy also can be an invaluable tool “both as a means of avoiding political responsibility for making tough decisions and as a means of pursuing controversial policy goals” that could not otherwise be advanced through normal legislative or electoral politics (Graber, 1993, 37). In sustaining judicial supremacy, legislators and executives can attempt to hand off and escape accountability for some divisive, volatile issues.

Criticisms

Judicial supremacy has been challenged as being an inaccurate description of public life and an undesirable political arrangement. As both a matter of prescribed law and effective political practice, courts do not construe the meaning of a constitution in every aspect of public affairs, or on every question. As Walter Murphy puts it, “in no constitutional democracy does any single institution have either a monopoly on constitutional interpretation or a guarantee of interpretive supremacy” (2007, 469). Instead, to varying degrees (and with more and less formal acknowledgement of the arrangement) many nations embrace some version of what is often called departmentalism or coordinate construction, in which the power to interpret the national constitution is shared among governing institutions. In the American context, for example, the judiciary has been quite reluctant to weigh in on the parameters of constitutional war powers or the impeachment process, leaving these (and many other) subjects to be constructed by nonjudicial officials.

Moreover, a number of scholars and politicians have suggested that judicial supremacy dangerously wrests responsibility for defining and protecting supreme law from the people and their representatives. In a number of nations, including the United States, nonjudicial officials take oaths to support and protect their constitutions, and arguably, this signals an independent and equal commitment by these individuals to understand and articulate constitutional meaning.

Judicial supremacy might also give too much power to judges, who are traditionally removed from the direct control of popular forces and are fallible in their legal judgments and assessments of public policies. Moreover, research suggests that courts are not always effective in actually promoting their supposedly signature functions, such as protecting individual liberties or inducing stability in the overall political system. In view of these objections to judicial supremacy, recognizing the authority of other branches of government, and even the people themselves, to engage in their own, “coordinate” forms of constitutional analysis could perhaps better support the values embedded in a nation’s highest law.

Bibliography:

Alexander, Larry, and Frederick Schauer. “On Extrajudicial Constitutional Interpretation.” Harvard Law Review 110, no. 7 (1997): 1359–1387.
Devins, Neal, and Louis Fisher. The Democratic Constitution. Oxford: Oxford University Press, 2004.
Friedman, Barry. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York: Farrar, Straus and Giroux, 2009.
Gant, Scott E. “Judicial Supremacy and Nonjudicial Interpretation of the Constitution.” Hastings Constitutional Law Quarterly 24, no. 2 (1997): 359–440.
Graber, Mark. “The Non-majoritarian Problem: Legislative Deference to the Judiciary.” Studies in American Political Development 7, no. 2 (1993): 35–73.
Kramer, Larry D. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press, 2004.
Murphy, Walter F. Constitutional Democracy: Creating and Maintaining a Just Political Order. The Johns Hopkins series in constitutional thought. Baltimore: Johns Hopkins University Press, 2007.
Tushnet, Mark V. Taking the Constitution away from the Courts. Princeton, N.J.: Princeton University Press, 1999.
Whittington, Keith. Political Foundations of Judicial Supremacy. Princeton, N.J.: Princeton University Press, 2009.

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