After the Supreme Court’s landmark 1954 decision in Brown v. Board of Education ordering the desegregation of public schools in Topeka, Kansas, lawsuits promptly were brought to dismantle legally sanctioned segregation in other states. One of these was Arkansas. There, Governor Orville Faubus and other state officials maintained that they were not bound by the Supreme Court’s ruling in Brown. That decision was constitutionally incorrect, they insisted, and amounted to a federal court’s usurpation of the constitutional authority of the states. Moreover, Arkansas was not a party in the case. Therefore, they contended that a lower federal court in Little Rock had no constitutional authority to order the desegregation of public schools in Arkansas on the basis of the Brown decision.
Arkansas’ appeal of the lower court’s order eventually made it to the Supreme Court of the United States in the 1958 case of Cooper v. Aaron. No one had any real doubts about what the outcome of that case would be. The Justices would certainly uphold the desegregation order. They did so, however, in a ruling that did more than merely remind the Governor and other state officials that they had “no power to nullify a federal court order.” In a unanimous opinion, the Court asserted, for the first time, that “the federal judiciary is supreme in the exposition of the law of the Constitution.”
The idea of judicial supremacy—or the idea that the supremacy of the Constitution entails judicial supremacy in constitutional interpretation—has come to be so widely held not only in the legal profession but also by the public at large that today it seems unremarkable. As the nation prepares for our annual celebration of Abraham Lincoln’s birthday, however, we have an occasion to consider just how remarkable it is, and just how far it is from the Great Emancipator’s understanding of the legitimate scope of federal judicial power.
According to the standard account of the matter, the power of judicial review—that is, the authority of the federal judiciary to invalidate acts of Congress and the President when they are deemed to be unconstitutional—came to be entrenched in our law by the acceptance, tacit or otherwise, of the Supreme Court’s ruling in the 1803 case of Marbury v. Madison. Of course, nowhere in the text of the Constitution is any such power granted. Rather, Chief Justice John Marshall inferred the existence of the power, or, at least, something like it, from the fact that the written Constitution declares itself to be the Supreme Law of the Land, combined with the evident principle that, in Marshall’s language, “It is emphatically the province and duty of the judicial department to say what the law is.”
Now, a lively dispute has existed from the moment the Court handed down its decision in Marbury as to the scope of that ruling. Even today, some scholars argue that it did nothing more than declare that the Supreme Court is within its rights in declining to exercise an authority putatively conferred upon it by Congress when such authority exceeds the jurisdiction granted to the Court under Article Three of the Constitution. Certainly, as a technical matter, all the Court did in Marbury was refuse to exercise original jurisdiction beyond what it was granted in Article Three on the ground that the expansion of its original jurisdiction by Section 13 of the Judiciary Act of 1789 was unconstitutional. So, the contemporary constitutional scholar Robert Lowry Clinton argues that it is a mistake to read the case as claiming a judicial power to tell the President or Congress what they can or cannot do under the Constitution. He maintains that it simply stands for the power of the Court, as a coequal branch of government, to act on its own interpretation of the Constitution in deciding what it can and cannot do. This, Clinton observes, is entirely consistent with the recognition of a like power in the other branches.
Of course, the conventional reading of Marbury—shared by the decision’s friends and foes alike—has it standing for a considerably broader scope of judicial authority. Thomas Jefferson condemned the decision precisely because he viewed it as claiming a power of the courts to impose constitutional interpretations on the other branches. This, he later asserted, would have the effect of “placing us under the despotism of an oligarchy.” And at the opposite extreme from Professor Clinton’s reading is the reading offered by the Supreme Court in Cooper v. Aaron. What I described as a “remarkable” claim to judicial supremacy, the Cooper Justices presented as nothing more than a straightforward, uncontroversial, altogether mundane and logical implication of Marshall’s proposition about the “province and duty of the judicial department.” Indeed, the paragraph in which the Justices make the claim offers nothing in its support beyond the invocation of Marbury.
Whatever Marbury was supposed to mean about the scope of the power of judicial review, it is a notable fact that the Court declined to exercise that power to declare another act of Congress to be unconstitutional until 1857, when it ruled in the case of Dred Scott v. Sandford. Scott was a slave in Missouri who had been taken by his master into the free state of Illinois and the free Wisconsin Territory. He then brought a suit demanding his freedom in St. Louis County Court under Missouri law, claiming that he was legally entitled to be free by virtue of having resided in a free state or territory. He won in the trial court but the ruling in his favor was reversed by the Supreme Court of Missouri. He then brought a new case in the federal courts to consider, among other things, whether a state could reverse the “once free, always free” principle under which the St. Louis County Court had ruled in Scott’s favor. Once the matter entered the federal courts, it became a massive political hot potato. Sandford (whose name was actually Sanford), acting on behalf of his sister who was Dred Scott’s owner, injected into the litigation the question whether any black person, free or slave, could be a citizen of the United States, and he directly challenged the constitutionality of the Missouri Compromise of 1820, which forbade slavery in the Louisiana Territory north of latitude 36° 30’. Although the power of Congress to forbid slavery in federal territories was well-established, Sandford argued that slaves were private property of the sort protected by the Constitution against deprivation without due process of law, and that therefore Congress lacked any constitutional authority to ban slavery in the territories.
When the matter reached the Supreme Court of the United States, Chief Justice Roger Brooke Taney, writing for a seven—man majority against two dissenters, accepted Sandford’s major contentions, not only sending Scott back into slavery, but holding, in effect, that he had never been free. The majority ruled that blacks could not be citizens of the United States, and therefore lacked the concomitant right to bring lawsuits in federal courts. Moreover, they held that Congress lacked constitutional authority to forbid or abolish slavery in federal territories. And still further, since slaves were, the Court ruled, personal property protected by the Constitution, the Missouri Compromise was unconstitutional.
All of this added up to a sweeping and profound ruling. The Court had massively injected itself into the most divisive and highly morally charged issue of the day. In my edited book entitled Great Cases in Constitutional Law, there is a most interesting exchange between Prof. Cass Sunstein of the University of Chicago and Prof. James McPherson, my colleague at Princeton, regarding the political impact of the Dred Scott decision. Sunstein defends the commonly held view that the case polarized an already dangerously divided country and made the Civil War and its toll of carnage almost inevitable. Instead of ending the conflict over slavery by definitively resolving it, as Taney apparently hoped to do, the Court, according to Sunstein, intensified the conflict and heightened emotions. McPherson holds the minority view that the case “did not really polarize the country any more than it was already polarized by the issue of slavery in the territories.”
Whichever scholar has the better argument, they agree that the decision focused the debate over slavery and introduced into the already heady brew of issues involved in that debate the question of the scope of judicial power under the Constitution. McPherson points out that “so thoroughly did the Dred Scott decision pervade and structure the Lincoln-Douglas debates [in 1858] that in one of those debates a Douglas supporter shouted from the audience to Lincoln: ‘Give us something besides Dred Scott.’ Quick as a cat Lincoln responded: ‘Yes, no doubt you want to hear something that don’t hurt.’”
To Lincoln Dred Scott was an abomination, but for reasons of principle going even beyond those set forth by the dissenting Justices in the case. That Lincoln was devoted to the Declaration of Independence and viewed its statement of principles as integral to the American scheme of constitutional government is, if anything, an understatement. However, the Declaration was far from the only writing of Jefferson’s of which Lincoln was mindful. In Jefferson’s letter of September 28, 1820 to William C. Jarvis, from which I quoted earlier his line about judicial “despotism,” he explained his opposition to judicial supremacy in constitutional interpretation as follows:
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 coequal and co-sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, to appoint other civil and military officers, to issue requisite commissions, the judges cannot force him.
Now, I daresay that to us—living in the aftermath of an expansion of judicial power that may, perhaps, more properly be conceived as having been expressed and ratified, rather than created, by the Supreme Court in Cooper v. Aaron—this language is quite shocking. Part of this, no doubt, has to do with the prestige that courts, including the Supreme Court of the United States, enjoy in elite sectors of our culture. Criticism of the scope of judicial power is often perceived by its partisans as, in effect, attacking the independence of the judiciary or even the ideal of judicial independence. The key thing to see is that Jefferson’s language was not at all shocking to Lincoln. On the contrary, it is entirely in line with his own fears of the political consequences of judicial supremacy.
Like Jefferson, Lincoln believed that courts, including the Supreme Court of the United States, could violate the Constitution and even undermine constitutional government. That judges, whenever they invalidate executive or legislative acts, purport to speak in the name of the Constitution, and claim merely to be giving effect to its commands, was in Lincoln’s view no guarantee against judicial despotism. Judges exercising effectively unconstrained power were, in his view, no less a threat to the Constitution than other governmental officers exercising such power. His fear was not that judges would sometimes err in their constitutional rulings. Given human fallibility, that is inevitable and unremarkable. His fear, rather, was that judges are capable of behaving unconstitutionally, just as other officials are capable of behaving unconstitutionally, by exceeding the authority granted to them under the Constitution and thereby usurping the authority allocated to other officials in a delicate system of checks and balances. Indeed, Lincoln believed that judicial violations of the Constitution were in certain respects graver matters than the violations of elected officials.
Lincoln, of course, was a lawyer. He knew from experience that judges come in all shapes and sizes—competent and incompetent, conscientious and slapdash, honorable and corrupt. He wasn’t a skeptic after the fashion of the legal realists who would rise to prominence in the law schools fifty years or so after his death. But his view of courts was realistic. He knew that it was essential to the success of a lawyer to know the law; but he also knew that it didn’t hurt to know the judge. He believed in courts but he didn’t venerate them. Nor did he automatically identify what the courts did or said with “the law.”
His mature and most profound reflections on the scope of judicial power and the role of the judiciary in the American constitutional system came in relation to the debate over Dred Scott. By 1858, when the question was at the heart of the political contest in which he was engaged, the Court had ruled, but the question of the ruling’s status was far from resolved. Recall that the ruling was the first invalidation of a federal statute by the Court in more than fifty years, and only the second in the nation’s history. The question of the proper posture toward it for the other branches to adopt was very much alive, and a politician’s position on the question might well determine his electoral fate. Bound up, as it was, with the urgent and divisive issue of slavery, there was no avoiding the issue—despite the best efforts of even the most agile political types, such as Stephen Douglas.
Upon his election as President, Lincoln faced the matter squarely in his Inaugural Address on March 4, 1861. With the specter of civil war looming, the new President, who had denounced the Dred Scott decision repeatedly in his senatorial campaign against Douglas in 1858 as well as in the presidential campaign, turned attention to it in his remarks to the nation.
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
For Lincoln, then, the evil of the Dred Scott decision was not merely the expansion of slavery. It was that the decision threatened to undermine the basic principles of republican government precisely by establishing judicial supremacy in matters of constitutional interpretation. It was not merely that the Court decided the suit in favor of the wrong party. It was that the Court claimed authority to decide for the other branches once and for all what the Constitution required, thus placing them in a position of inferiority and subservience. For the people to “resign their government into the hands of that eminent tribunal” would be, according to Lincoln, the abandonment of democratic self-government and the acquiescence in oligarchic despotism. There is a not-very-faint echo of Jefferson in Lincoln’s First Inaugural.
In office, Lincoln gave effect to his position against judicial supremacy by consistently refusing to treat the Dred Scott decision as creating a rule of law binding on the executive branch. His administration issued passports and other documents to free blacks, thus treating them as citizens of the United States despite the Court’s denial of their status as citizens. He signed legislation that plainly placed restrictions on slavery in the western territories in defiance of Taney’s ruling. For his critics, these actions, combined particularly with his suspension of the writ of habeas corpus, revealed him to be a lawless and tyrannical ruler, one who had no regard for the constitutional limits of his own power. But none can say that he had not made his opposition to judicial supremacy clear before assuming office.
It is ironic that the declaration of judicial supremacy made by the Warren Court came in the context of the Court’s efforts to enforce a ruling in the cause of racial equality and civil rights. The occasion for Lincoln’s declaration of implacable opposition to judicial supremacy had been a decision which, above all others, stained the Court’s reputation as an institution dedicated to, as it says above the entrance to the Marble Temple in Washington, D.C., “equal justice under law.” Indeed, the popularity of the Court’s ruling in the Brown case (not, initially at least, in the South, but throughout much of the country and certainly among journalists, professors, and other opinion leaders) no doubt helps to explain why the remarkable dictum in Cooper v. Aaron was so little remarked on at the time, and why few have noted its incompatibility with the principles of Jefferson and Lincoln.
I find that my own students are more than merely surprised to learn about the views of the author of the Declaration of Independence as well as the Great Emancipator. They, too, have drunk in the idea that courts, particularly the Supreme Court (upon which more than a few imagine themselves someday serving), are the ultimate protectors of rights and, as such, should have the ultimate say on constitutional questions. After all, they reason, somebody, or some institution, has to have the final word, or else nothing is ever settled. And students, at least my students, want things to be settled. And the ultimate settler of things—when the things in question are politically ultimate things, constitutional things—should be a nonpolitical body. Politics, my students say, is too messy. Democratic institutions are too prone to passion, prejudice, and foolishness for us to entrust to them matters of constitutional significance. We don’t want to make our rights subject to voting, they say. There needs to be a higher institution to provide a check against the bigots and demagogues of politics—an institution where matters are resolved by calm and rational inquiry and judgment; an institution whose membership is drawn from a narrower, more refined, more highly educated circle; one that is not subject to political retaliation for unpopular decisions of principle. What would have happened, they ask, had the political branches felt themselves free to dispute Brown v. Board of Education?
One imagines Lincoln in the classroom reminding the youngsters that the unchecked power to do good is unavoidably also the unchecked power to do evil. If we like what the Justices did in Brown v. Board, let us not forget what they did in Dred Scott. And there is more to the balance sheet. Was it not the Court, after all, that during the period from 1905 to 1937 repeatedly invalidated both state and federal worker protection laws and social welfare legislation? Did the Justices not read into the due process clause of the Fourteenth Amendment a “right to freedom of contract” in whose name they frustrated the legislative will and usurped the constitutional authority of the elected representatives of the people? This, in any event, is the conventional reading of the history by contemporary liberals and conservatives alike.
And then there is the issue of abortion, surely the most vexing, divisive, and morally charged issue of our own time. Does the Supreme Court’s ruling striking down state prohibitions of abortion in the 1973 cases of Roe v. Wade and Doe v. Bolton belong on the plus side of the Court’s ledger with Brown v. Board or on the minus side with Dred Scott? Does that in turn depend on whether one happens to see abortion as a woman’s right or as a violation of the rights of an unborn child? If so, should one’s view of the proper scope of judicial power, and the legitimacy of judicial supremacy, depend upon the contingent fact that the Court happened to come down the way it did on abortion? After all, the Court could have come down, as the German Constitutional Court did in a 1975 decision interpreting Germany’s Basic Law, in precisely the opposite way—invalidating a legislatively enacted liberalization of abortion. Supporters of the right to abortion who criticize the German decision make exactly the same arguments—the same Lincolnian arguments—against judicial supremacy that supporters of the right to life who criticize Roe v. Wade make. Their argument is that, to put it in Lincoln’s language, “if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”