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Judicial Supremacy: Supreme Court
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Judicial supremacy remains a key issue within the whole spectrum of the judiciary. It would be easy to view the senior law lords as being supreme in British politics. This would not be so.... Any legal ruling by a judge, judges, law lords etc. can be overturned by an Act of Parliament. This means that, despite a probable time delay, the power of a democratically elected body can exercise its authority over the judiciary.
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Had the Justices been otherwise disposed to restrain themselves, the self-empowering tautology of the scrutiny formula need not have led inexorably to judicial supremacy. It was, after all, merely an instrument for the expansion of judicial authority that said nothing about how it would be deployed. The decisive change came when the long march from Carolene Products passed through Brown v. Board of Education, the Ur-decision of judicial supremacy, which seems to have endowed the Justices with a sense of missionary zeal. Though properly hailed as the clarion call that helped to free American blacks from legal and political bondage, Brown’s greater significance lay in what it did to the Court itself. Confronted by the injustice of Jim Crow on the one hand, and on the other by long-standing constitutional interpretations limiting the scope of available judicial relief, the Justices at first felt boxed in by their own precedents. But if the Court’s prior rulings had indeed painted it into a corner, it ultimately resolved the dilemma by painting a door on the wall and stepping through: in so many words the Court said that if the Constitution as it stood was unable to provide the necessary relief, the Constitution would have to yield.
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[H]ere is the striking thing: after Cooper v. Aaron, the idea of judicial supremacy seemed gradually to find public acceptance. The Court's decisions were still often controversial. State legislatures sometimes enacted laws they knew the Court would strike down, and compliance with the justices' most contentious rulings—such as those involving abortion or school prayer— was willfully slack in many places. But sometime in the 1960s, these incidents of noncompliance began evolving into forms of protest rather than claims of interpretive superiority. Outright denials of the Supreme Court's authority to define constitutional law seemed largely to disappear.
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[T]he origin of modern judicial supremacy in constitutional law can be found neither in the Constitution nor in its early judicial application. Tocqueville’s famous aphorism according to which all political questions sooner or later develop into judicial ones described a feared tendency rather than a reality. So had the earlier arguments of the Antifederalist Brutus. Brutus clearly saw vast potential for expansive judicial development in the 1787 Constitution, but his worst fears did not materialize until a century later. When Jeffersonian Republicans and Jacksonian Democrats launched early attacks on the Court, they did so on the basis of a widespread belief that congressional or presidential interpretations of the Constitution were entitled to as much respect as those of the Court.
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The result was a glaring disjunction between the theoretical scope of judicial supremacy and its practice. An immense body of scholarship soon emerged to explain the post–New Deal structure of judicial review, but tension remained at a deep intellectual level. Those who found its political consequences troubling latched on to the seeming disconnect between a Constitution that was supposedly subject to judicial oversight and the practice of leaving questions respecting the Constitution's limits to be settled by political institutions. In recent years, this group has consisted chiefly of conservatives unhappy with what they viewed as an unwarranted expansion of federal authority. They increasingly sought a solution in the form of more aggressive judicial enforcement of limits on Congress. By the late 1980s, five of them—William Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—were on the Supreme Court.
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These cries against judicial activism reveal a broader critique of the supremacy of federal courts. In the 1950s and 60s, the U.S. Supreme Court reasserted its authority over state courts on matters of constitutional interpretation in the wake of Southern backlash to federal court-imposed integration. In 1958, the Court declared itself the ultimate and exclusive arbiter of constitutional meaning in Cooper v. Aaron, when it ordered the Governor of Arkansas to stop flouting the Court’s mandate to integrate schools. At that time, the rhetoric of defying federal courts was intertwined with issues of race, and most saw these challenges to judicial supremacy as a dressed-up rejection of racial integration. As these disputes subsided, the authority of federal courts to interpret the Constitution was embraced broadly.
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