Constitutional Supremacy, Not Judicial Supremacy

By: TJ Martinell

In response to a U.S. Supreme Court opinion, President Andrew Jackson allegedly remarked “John Marshall has made his decision; now let him enforce it!” Whether he actually said it or not, the statement gets at the heart of an important constitutional question. Is the president required to enforce U.S. Supreme Court opinions?

In his essay “The President and the Myth of Judicial Supremacy,” Michael Stokes Paulsen argues the answer is a resounding “no.”

“Nearly everyone, it seems, defends at least some version of the view that the federal judiciary’s final judgments in cases or controversies actually decided by the courts are conclusive and binding on the other branches of the national government and on state government actors,” he writes.

For those who cite Marbury v. Madison as an argument to support this claim, Paulsen points out that “Marbury stands for the proposition of constitutional supremacy – not judicial supremacy – and the independence of each of the branches of the national government in the exercise of the duty to adhere faithfully to the Constitution.”

“A faithless misinterpretation of the Constitution is not binding on another branch of government,” he writes further. “Each actor is oath-bound to enforce the Constitution and not the faithless departures from it by other governmental Actors.”

He cites Federalist No. 78, where Alexander Hamilton states that SCOTUS “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

This is as clear-cut an argument for constitutional, rather than judicial supremacy, as can be found.

Additionally, James Madison wrote in Federalist No. 49 that among the three branches “none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”

Paulsen writes “that is as categorical a rejection of one-branch interpretive supremacy, and as unequivocal an embrace of interpretive coordinacy, as it is possible to imagine. It entails a rejection of judicial supremacy every bit as much as a rejection of congressional supremacy or executive supremacy in constitutional interpretation.”

Yet, he observes, that “nearly everyone, it seems, defends at least some version of the view that the federal judiciary’s final judgments in cases or controversies actually decided by the courts are conclusive and binding on the other branches of the national government and on state government actors.

At the same time, “nearly everyone, it seems, defends at least some limited version of the rather different proposition—in considerable tension with the first—that the other branches possess a sphere of autonomy and independence in constitutional interpretation. That is, Congress, the president, and perhaps others possess a ‘coequal’ prerogative of constitutional interpretation.”

The problem is those two views are contradictory. Either one must be right, or the other. But both cannot be correct.

Paulsen writes that to argue for judicial supremacy is to undermine the very notion of federalism’s equal branches of government.

“If the executive branch must honor and enforce court judgments, then it has no genuine sphere of interpretive autonomy. The premises of constitutional supremacy and separation of powers vested in independent, coordinate, coequal branches of government supports the former conclusion—complete coordinacy—as disturbing as it might be in some of its applications, and as unsettling as it might be for current practice.”

Recalling the notorious Alien and Sedition Act, Paulsen poses a hypothetical situation. What if a new version of that legislation were to be passed by Congress. “Is the described statute unconstitutional?” he poses. “The point is that the statute is objectively, incontrovertibly unconstitutional – as everyone (I hope) would agree. Can we all agree on this as a starting point for all further discussion?”

He writes that the correct constitutional response by the president to any such law would be to veto it and/or refuse to enforce it “whether the courts have spoken or not, whether the courts have upheld the Act’s provisions or not, and whether the matter at hand involves the judgment in the specific case decided or a different, factually indistinguishable one. Constitutionally, it is not only your power but also your duty not to carry out the provisions of this flagrantly unconstitutional act, irrespective of what the judiciary has said.”

In addition to Hamilton and Madison, Thomas Jefferson also argued for constitutional supremacy. In a letter to Abigail Adams regarding the Alien and Sedition Act, he wrote (bold emphasis added):

You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution. That instrument meant that its co-ordinate branches 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 legislature and executive also, in their spheres, would make the judiciary a despotic branch.

Ironically, one of the more recent defenses of constitutional supremacy has come from SCOTUS itself in the form of a dissenting opinion by Antonin Scalia in the 2015 Obergefell v. Hodges opinion.

Here, Scalia cited Federalist No. 78 and made “an appeal to the weakness of the judiciary, noting the constitutional power of the other branches of government to counteract judicial decisions that abused the courts’ proper constitutional authority,” Paulsen writes.

Paulsen concludes that “the president’s independent province of constitutional interpretation extends, in principle, to the exercise even of the power not to execute judicial judgments in specific cases, where the court’s decision is contrary to the Constitution or other controlling law.”