Is the Supreme Court the Ultimate Arbiter of the Constitution?

by Zach Garris,  President of the Federalist Society at Wayne State University Law School

Americans today consider the Supreme Court to be the final arbiter of the Constitution. Politicians and voters alike will fight tooth and nail over legal questions facing the judicial system, even criticizing Supreme Court rulings when initially handed down. But give a Supreme Court decision enough time and Americans eventually acquiesce. The question becomes “settled.”

From the banning of prayer and Bible reading in public schools in the 1960s to the recent forced recognition of same-sex “marriage” in all 50 States, the Court’s decisions reign supreme.

However, the Supreme Court’s rulings do not enforce themselves. They carry weight because State officials and the people of the States submit to the Court, choosing to follow federal judges over State laws. This raises the question—why do we give the Supreme Court so much deference?

The Supreme Court Claims Ultimacy

The view that the Supreme Court is the final arbiter of the Constitution is one of its own making. The Constitution itself never says that the Supreme Court is the final arbiter of the Constitution. Rather, it identifies the Constitution as “supreme”:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land (Article VI).

Three things are listed as the “supreme law of the land”: (1) the Constitution; (2) laws made “in pursuance” of the Constitution; and (3) treaties. These things bind both State and federal officials.

What then of the Supreme Court? Article III of the Constitution vests “judicial power” in “one supreme Court,” as well as lower federal courts that Congress “may from time to time ordain and establish” (Article III, Section 1). This judicial power of the federal courts extends to all cases “arising under this Constitution, the Laws of the United States, and Treaties made,” with the specific cases that federal courts can hear listed in Article III, Section 2. In other words, federal courts are supposed to have limited jurisdiction.

The Supreme Court does not have authority over the Constitution. Rather, the Court is given authority to hear certain types of cases arising under the Constitution, U.S. laws, and treaties. The Court is supposed to apply the Constitution to the cases before it.

Unfortunately, the Supreme Court began to claim more power for itself quite early in its history. In Marbury v. Madison (1803), Chief Justice John Marshall ruled that the Supreme Court could determine the constitutionality of federal legislation (what is known as “judicial review”). Though not explicit in the Constitution, the founding generation expected that the federal judiciary would practice a limited form of judicial review as a check on the other branches of the federal government.

However, what was more controversial was federal judicial review of State legislation, a power that the Marshall Court claimed in Fletcher v. Peck (1810). Six years later, the Court also claimed the right to overturn State courts in Martin v. Hunter’s Lessee (1816). Only this time it was not Marshall (who recused himself), but Marshall’s ally Joseph Story who wrote the opinion.

Fletcher and Martin were significant cases in early judicial history because they expanded the power of the Supreme Court to include a veto power over the States, including both State legislatures and State courts. The Supreme Court was in essence claiming it had a monopoly on constitutional interpretation. For if the Court can veto both the federal government and the State governments, this leaves no other branch of government to interpret the Constitution. These decisions by the Marshall Court set the stage for the Supreme Court’s usurpation of State authority in the 20th century (under the guise of “substantive due process”), thus establishing a nationalist rather than a federal approach to the Union.

Black-Robed Despotism

Thomas Jefferson saw what was happening with the Marshall Court and warned against the Supreme Court’s ultimacy in his letter to William Charles Jarvis (September 1820):

You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy . . . They have, with others, the same passions for party, for power, and the privilege of their corps . . . and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Jefferson’s words read like prophecy, as the people of the United States have come to be ruled by a black-robed despotic “oligarchy” that is unaccountable to voters. In response to this concern, Jefferson stressed the importance of the “co-equal” branches. However, he concluded, “I know no safe depository of the ultimate powers of the society but the people themselves.”

This is a reference to the people of the States having the power to practice nullification or call an Article V convention. Jefferson made a similar statement in his letter to Judge William Johnson (June 1823) commenting on Marbury v. Madison—“the Chief Justice [John Marshall] says, ‘there must be an ultimate arbiter somewhere.’ True, there must; but . . . The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States.”

The Court is Not the Only Interpreter of the Constitution

The Supreme Court’s claim of ultimacy finds no support in the Constitution. This is because neither the framers nor the ratifiers of the Constitution intended to give the Supreme Court a monopoly on the document’s interpretation. The expectation was that every branch of the government would interpret the Constitution—the three branches of the federal government (legislative, executive, judicial), as well as the States.

The right to interpret the Constitution by the other branches of the federal government can be demonstrated by the fact that the president takes an oath to “preserve, protect, and defend the Constitution”—not the Supreme Court’s interpretation of the document (Article II, Section 1). Further, Congress is only supposed to pass laws within the powers granted by the Constitution (Article I, Section 8), and the president is supposed to veto any law he considers unconstitutional (Article I, Section 7).

President Andrew Jackson affirmed this right of the other branches to interpret the Constitution in his veto message on the bank bill in 1832:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others . . . The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

Former Attorney General Edwin Meese followed this same line of argument in his criticism of the Supreme Court’s ruling in Cooper v. Aaron (1958), where the Court declared State nullification unconstitutional and held that States are bound to follow the Court’s decisions (in response to State resistance to Brown v. Board of Education).

Meese criticized Cooper for characterizing the Court’s decision in Brown as “the supreme law of the land,” as that phrase only applies to the Constitution and not the Court’s interpretation of it. Meese distinguished between the Constitution and “constitutional law,” describing the latter as “what the Supreme Court says about the Constitution.” Thus “constitutional decisions need not be seen as the last words in constitutional construction.” Meese concluded that the Supreme Court “is not the only interpreter of the Constitution” but also “[e]ach of the three coordinate branches of government.” [1]

The Role of the States in Interpreting the Constitution

One can add to Meese’s argument that the States, along with the three branches of the federal government, have the right to interpret the Constitution. Unlike the federal government, the States are the parties to the compact that created the Union. The ratification of the Constitution by the States was the sine qua non of the federal government. The States therefore have a foundational role in interpreting the terms of the compact and keeping the federal government within its limited power.

This State right to interpret the Constitution was asserted in the Virginia and Kentucky Resolutions of 1798, drafted in opposition to the Alien and Sedition Acts. The Kentucky Resolutions of 1798 asserted that as parties to the Union, the States have the right to interpret the Constitution and thus judge the extent of the powers of the federal government:

the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself.

The Resolutions were arguing that the interpretation of the Constitution cannot be left to the federal government, for that would make the federal government the arbiter of its own powers. Such a monopoly on the Constitution results in the people of the States being governed by the “discretion” of their rulers rather than the Constitution. If the Constitution is to be the measure of the powers of the federal government, then the States that created that federal government must have the equal right to judge whether the actions of the federal government are constitutional.

Some of the other States criticized the Virginia and Kentucky Resolutions, which led to the Virginia Report of 1800 (also known as the Madison Report). Madison specifically raised concern over judicial supremacy in the interpretation of the Constitution. In response to Vermont’s argument that the States should look to the Supreme Court as the arbiter of constitutionality, Madison contended that “the judicial department also may exercise or sanction dangerous powers beyond the grant of the constitution.”

The judiciary is the “last resort” in constitutional questions among “the other departments of the government; not in relation to the rights of the parties to the constitutional compact [i.e. the States], from which the judicial as well as the other departments hold their delegated trusts.” In other words, the judiciary is to judge the constitutionality of the acts of the federal government, not the rights of the States who created that government. For if the judiciary concurs “with the others in usurped powers,” this “might subvert forever, and beyond the possible reach of any rightful remedy, the very constitution, which all were instituted to preserve.”

The argument is this—if the Supreme Court is the only arbiter of federal power, then there is no check on the Court if it joins the other branches in violating the Constitution. Such a monopoly would destroy the Constitution. Of course, Madison was entirely correct on this point. The Supreme Court has shredded the Constitution, exemplified in the Court’s striking down of laws that have always belonged to the States, such as the regulation of abortion and marriage.

A Change in Outlook

It is time for Americans to challenge the supremacy of the Supreme Court. We must stop giving so much deference to the Court and acknowledge that the other branches of the government—including the States—have the right to interpret the Constitution. The Supreme Court is a partisan body with no accountability to the electorate, and many of its decisions have little or nothing to do with the Constitution. Yet it is the Constitution—and not the Court—that is the “supreme law of the land.” Why then do the people of the States continue to submit to the lawless and unconstitutional decisions of the Court?

Justice Robert Jackson once offered these famous words regarding the authority of the Supreme Court—“There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”

The contention thus far is that, in contrast to Jackson’s claim, the Supreme Court is not final. The Supreme Court is the highest court at the federal level, but it is not the final arbiter of the Constitution. The other branches of the federal government—the legislative and executive branches—have the right to interpret the Constitution. And as parties to the compact that created the Union, the States also have the right to interpret the Constitution (which they can exercise through nullification or an Article V convention).

If this line of thinking is not followed, the Supreme Court will continue to exercise authority over the Constitution, making the document a mere relic of the past. As Jefferson said, to consider the Supreme Court the “ultimate arbiter” of the Constitution is “a very dangerous doctrine indeed.”

[1] Edwin Meese, The Law of the Constitution, 61 TUL. L. REV. 979, 987, 982, 985 (1986-1987).