Does the Supreme Court get to decide, finally, for everybody, and for all time, what the Constitution means? Many people today assume that they answer to this question is “yes,” and even that this answer is obvious. Indeed, they are apt to say that saying “no” in reply to this question is to be in opposition to constitutionalism and the rule of law.
Over at Public Discourse, I make the argument instead that, while the Supreme Court has an undoubted power of judicial review, this does not mean that it is the “ultimate” interpreter of the Constitution who gets to decide constitutional questions for the other branches of government.
This argument came up as a result of the response to some remarks made by Mike Huckabee on the possibility that the Supreme Court will affirm a right to same-sex marriage. Huckabee suggested–in a rather confusing manner, it must be admitted–that if the Court took this step the other branches would not necessarily have to toe the line.
This in turn led to a condemnation published at the conservative website The Federalist. This condemnation was authored by attorney Gabriel Malor, who defends the commonplace law school view that the Supreme Court’s power of judicial review means that it is the final arbiter of questions of constitutionality.
I replied at Public Discourse, contending that this is not the case. Judicial review means that courts may–and indeed must–refuse to give effect to laws they believe to be unconstitutional. But it does not mean that they can bind the other branches to their own interpretations when the other branches think otherwise in an area where they, too, have legitimate constitutional authority. The core of my argument is that judicial supremacy undermines the rule of law by making the Constitution infinitely malleable in the hands of judges, and that it undermines democracy by permitting unelected judges to have the final, unanswerable say in matters that concern the whole community.