Judicial supremacy

US Supreme Court Building

Judicial Supremacy is the idea that the courts should have the final say over issues of policy up to and including the creation of policy, instead of policy makers or even the voting public, and is a natural end result of the doctrine of a Living Constitution. In this light, judicial supremacy amounts to a positive power, that is, the power to positively create law in the absence of legislation.

Under judicial supremacy, the branches of government are not co-equal. Instead, under judicial supremacy, courts are above checks and balances by other branches of government. This subverts the Constitutional Separation of Powers that exists to prevent the rise of tyrannical government. Numerous American statesmen have rejected judicial supremacy, including Presidents Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Delano Roosevelt. Also, Alexander Hamilton completely rejected judicial supremacy in Federalist No. 78.

Background

A supremacist is one who believes in or advocates the supremacy of a particular group. Supremacism is the implementation of the agenda of a supremacist.

The better, and more traditional, view is that the U.S. Constitution itself is the supreme law of the land, and that three branches of the federal government (Legislative, Executive, Judiciary) are equally responsible for upholding the Constitution and for applying checks and balances against usurpation in power by a rival branch.

Court

The first case of judicial supremacy was the 1958 case Cooper v. Aaron, which asserted that because of the 1803 decision in Marbury v. Madison, that "This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system."

The Cooper case justifies this position by taking one quote out of Marbury, while disregarding the whole of the decision. Marbury is actually quite modest, despite the claims of the supremacists, and asserts that Congress is not constitutionally capable of extending the Court's jurisdiction further than Constitutional proscription.

But what the supremacists are not looking to do is stay within the framework of Constitutionality, instead, they are trying to break free from its bonds and make the judiciary the most powerful branch. One author notes of judicial supremacy that "the court defines effective constitutional meaning such that other government officials are bound to adhere not only to the Court's disposition of a specific case but also to the Court's constitutional reasoning."

This much was stated plainly in the 1992 case Planned Parenthood v. Casey, where the court declared itself above the people when it wrote that it was "invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." Judges, however, are not elected by the people and thus, are not their direct representatives.

In 2007, Chief Justice John Roberts wrote for the court in criticizing and rejection the temptation for courts to exercise "judicial supremacy."

Judicial veto

Despite the fact that many of the supremacist school claim Marbury's Judicial review ruling as their platform, the Constitution does not simply give power to judges to veto laws.

Bibliography

• Levin, Mark R. Men in Black: How the Supreme Court Is Destroying America (2005)
• Schlafly, Phyllis M. The Supremacists: The Tyranny of Judges And How to Stop It (2004)

See also

• Checks and balances
• Federalist Papers

External links

• Men In Black: The Supreme Court
• Answering the Claim of Judicial Supremacy, KrisAnne Hall