The Supremes

ED: Kevin Gutzman just mentioned how the Supreme Court has the final word in cases involving constitutional rights. Everything from the right to privacy to free speech to same-sex marriage. That’s one of the reasons there was such a pitched battle over the nomination of Judge Robert Bork in 1987.

LARRY KRAMER: The particular stakes, of course, were whether Roe v Wade was going to be overturned or not.

ED: This is constitutional law scholar Larry Kramer.

LARRY KRAMER: But the deeper stakes were that it was really the moment to which popular political culture openly and expressly acknowledged the fact that the Supreme Court was going to decide what our rights were, finally, that who got put on the Court was going to decide who had what rights.

ED: Kramer says there’s actually no legal or constitutional basis for the current Court’s supreme power, what lawyers call judicial supremacy. He says that in the early republic, the Supreme Court was weak compared to the Court we know today.

LARRY KRAMER: There’s no concept that the Court’s decision about the Constitution is better than, superior to that of the other branches or of the community at large. It’s co-equal. They have to decide also, but their decisions don’t take precedence over anybody else’s.

ED: So does that mean that the other two branches of government could basically ignore the Court’s decisions?

LARRY KRAMER: Yeah. Literally, that means that. And all of that is designed to force the issue back out to the only body that can really decide, which is the community at large.

ED: As we mentioned earlier, Thomas Jefferson defeated Federalist President John Adams in a contentious election of 1800.

LARRY KRAMER: Of the things that the Federalists did at the end of their administration was they reformed the judiciary and created all these new courts, the so-called Midnight Judges Act, because they did it at the very last minute, to strengthen their hold on at least that branch of government, because they had lost both the presidency and Congress in the election.

ED: Now, is this where Marbury versus Madison, which many people have heard of, comes in?

LARRY KRAMER: Exactly. At the end of the administration, they had prepared the commissions for all these new judges and justices of the peace, which are just pieces of paper that say that the job is yours. But they didn’t deliver them all, because Jefferson wasn’t, in fact, going to give all of them jobs. William Marbury is one of the people who was supposed to get one of these commissions. So he brings a lawsuit to say Jefferson should give me my commission. And that comes to the Court at the same time as the challenges to the repeal of the Midnight Judges Act.

ED: There’s a lot of things converging at the same time.

LARRY KRAMER: Yeah. And this is the political issue of the day.

ED: Right, right.

LARRY KRAMER: That’s the thing people sometimes lose, because it’s so distant in time now. But I always tell my students, you know, Marbury v Madison in context is the Bush v Gore of its day.

ED: Right, right.

LARRY KRAMER: It’s a high political moment.

ED: But unlike Bush v Gore, the Supreme Court did not have the final say. It had no way to force Jefferson to give Mr. Marbury his promised job.

LARRY KRAMER: The thing is the Court knows if we actually order Jefferson to do something, he’s going to ignore us. So we can’t do that. But if we do nothing at all, we’re going to look so weak. It’s going to really hurt the institution of the Court.

ED: Wow.

LARRY KRAMER: Right. So on the one hand, they say, Jefferson, you violated the law by not delivering Marbury his commission. But then, how do I not order him to do something? So what they do is first they take the Judiciary Act of 1789, and they read it really broadly, probably incorrectly, in order to say, wow, you were wrong not to deliver the commission.

We don’t have power to order you to do it, because the law, the Judiciary Act of 1789, that purports to give the Court the power to hear this case, that law is unconstitutional. Therefore, we have no jurisdiction, and we have to dismiss. So the renouncing of power, which is the we don’t have power to hear this case, is wrapped around the exercise of judicial review.

ED: In other words, we, the justices of the Supreme Court, are deciding that we don’t have the constitutional power to hear this case. The Supreme Court is exercising judicial review and deciding what its powers are under the Constitution.

BRIAN: OK, Ed. Sounds like a bunch of lawyers to me. And clearly, they avoided embarrassment. But you still need to explain to me why Marbury v Madison became such a big deal. It’s in all the textbooks.

ED: Well, don’t feel too bad, Brian, because for much of American history, nobody paid much attention to Marbury, until the Warren Court of the 1950s.

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After the Supreme Court’s landmark 1954 decision declaring school segregation unconstitutional and Brown v Board of Education, there was great resistance to the ruling across the South. The local school board in Little Rock, Arkansas filed suit to delay integration of Central High School. And a local trial judge granted the school board’s request. The black students and the NAACP appealed his decision all the way up to the high court, in a case known as Cooper v Aaron.

LARRY KRAMER: The Supreme Court in Cooper v Aaron says you have to enforce Brown v the Board of Education, and in the context of the opinion, ordering the judge to do that, cites Marbury v Madison and makes the claim that the US Supreme Court is supreme in the interpretation of the Constitution.

ED: I see. So 150 years later, they sort of pull the book off the shelf and said, aha, here it is.

LARRY KRAMER: And misread it. Because it doesn’t say what they say it says. It explicitly doesn’t say what they say it says. In fact, the actual language in the opinion is that the courts as well as the other branches of government can interpret the Constitution, not that the Court above the other branches of government can.

ED: So how do they get away with that?

LARRY KRAMER: Well, but that starts a process. So now, for the first time in US history, you have an activist Court that is also liberal. And so the liberals who had always opposed judicial supremacy, that side of the political spectrum, flips and embraces the idea.

ED: Right. Right.

LARRY KRAMER: And the conservatives, who had always supported the idea, whether it was the Federalists or the Whigs or the Democrats around the Civil War or the Republicans around the time of the New Deal, they stay right where they are. And so the debate shifts in this period from debate over who interprets to a debate over how to interpret, with everybody agreeing it’s the Court.

ED: So do people not protest against this sort of seepage of an idea? Did nobody say, hey, look the emperor has no clothes? This is not really a real thing that everybody’s accepting.

LARRY KRAMER: Really, in the ’60s, it’s still OK to push back at the Supreme Court. If you remember, Richard Nixon runs a campaign, you know, impeach Earl Warren.

ED: Right. Right.

LARRY KRAMER: Right. That’s still kind of acceptable. But it’s becoming less and less so. Early on in the Reagan administration, his attorney general, Edwin Meese, writes a speech in which he asserts the traditional position of co-equal branches, quoting Lincoln and Jefferson. And you know, the Supreme Court isn’t final. It’s a co-equal branch. And he’s hammered for that. I mean, what’s so interesting, in other words, is that it’s a 180-degree reversal over what would have been true across most of American history.

ED: So do you think it would be better for America if we didn’t have this idea of judicial supremacy?

LARRY KRAMER: I do. For me, if you’re going to have judicial supremacy, then at least you should have judges who have sort of deep political experience and have had responsibility for making hard choices so that they really understand the consequences of what they’re doing. And the great irony of the growth of judicial supremacy is that as the Court became more and more powerful, the ability to put anybody on it who had that kind of experience has gone away, because they can’t make their way through the sieve of Senate confirmation.

And so now you have a Court that consists of nothing but legal technocrats, so when the law runs out, as it does in all those cases, when you get to the point where with just pure legal arguments you could go either way, they don’t have the experience and wisdom to take them that last final step and help guide the decision. They have nothing but ideology.

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ED: Larry Kramer is the former dean of Stanford Law School and the author of The People Themselves– Popular Constitutionalism and Judicial Review.