Assistant Professor, UNT Dallas College of Law
Article III of the U.S. Constitution establishes the Supreme Court as the highest court in the land. But is there anything supreme about the Court with respect to Congress or the President? Can the Court have some supremacy over these co-equal branches of government? Nothing in the Constitution even hints at an answer.
That didn’t keep Chief Justice John Marshall from announcing in the Court's Marbury v. Madison2 decision in 1803 that it's the judiciary's job to say what the law is. And at face value, it shouldn’t have. Of course a court must figure out what the law is before judging whether the parties before it have violated or complied with that law. We call this “judicial review.”
But the Marbury opinion also implies that this job belongs exclusively to the courts, and that a decision of the Supreme Court must be treated as the supreme and final determination of the matter—by Congress and the President and all of us. And since 1803, with few exceptions, we have pretty much done so. (The Supreme Court's 1958 opinion in Cooper v. Aaron3 calls this deference “respect” and says it's “a permanent and indispensable feature of our constitutional system.”)
The “disrespectful” exceptions to this trend?
Well, there’s Thomas Jefferson. President Jefferson didn’t respond well when the Marbury opinion first suggested he must defer to the Court, and his fondness for the decision didn’t improve with time. In 1804, he wrote, “[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”4 In a later letter he added, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine . . . which would place us under the despotism of an oligarchy.”5
Jefferson is not alone in his views. Following another opinion authored by Marshall—an 1832 decision, Worchester v. Georgia6, which attempted to recognize the sovereignty of the Cherokee Nation—President Andrew Jackson allegedly stated, “John Marshall made his decision. Now let him enforce it.”7 Turns out, the Chief Justice couldn’t pull that off. And the result soon became the “Trail of Tears,” one of the worst travesties in our nation's history.8
Anyone with a conscience would side with the Court and the Cherokees today. But that’s not to say we should always take the Court’s side. In 1893, the Supreme Court held in Nix v. Hedden9 that tomatoes are vegetables and therefore subject to a vegetable tariff. Even an elementary-level education in botany will tell you this decision is wrong. And in 1942, in Wickard v. Filburn10, the Supreme Court held that wheat an Ohio farmer raised and consumed—on his Ohio farm—constituted “interstate commerce.” Whatever might be said of that unsold, un-transported wheat, it certainly wasn’t commerce, and there was nothing remotely interstate-y about it.
There are other judicial embarrassments, of course. Most notably the Dred Scott case11, in which the Supreme Court held that descendants of slaves aren’t Americans and can't sue in federal court. According to Marshall and Marbury, we were all supposed to defer to that. But President Abraham Lincoln did not. Indeed, his position on Dred Scott formed a major part of the Lincoln-Douglas debates.12 And ultimately, the American people sided with Lincoln. A war settled the matter shortly thereafter.
Jefferson, Jackson, and Lincoln. That’s a pretty impressive array of Marbury critics. But the list doesn’t end there. In fact, one commentator notes that “five of the best-known constitutional scholars of the 20th century have declared Marshall’s reasoning in [at least one] section of his Marbury opinion to be questionable.”13
Still, deference to the judiciary has become so entrenched in the norms of American governance that, even when a bare 5-4 majority announced in Bush v. Gore14 that the State of Florida doesn’t get to decide whether Florida voting laws allow a vote recount to continue, even then President Clinton and Vice President Gore deferred to the Republican-appointee majority on the Court, before peaceably passing the presidency to the opposition party.
Certainly, it’s problematic to trust Congress or the President to decide what the law is in such instances. But we probably could count on them not to declare it a vegetable, or interstate commerce, or non-American.
1 The author hoped to add “If the Supreme Court Could Chuck Wood” to the title of this piece. But like the President, he didn’t have final say.
2 5 U.S. 137.
3 358 U.S. 1, 17-19.
4 Thomas Jefferson’s Reaction, Landmark Cases of the U.S. Supreme Court, http://landmarkcases.org/en/Page/284/Thomas_Jeffersons_Reaction (ME 11:51) (last visited April 4th, 2019).
5 Id. (ME 15:277).
6 31 U.S. 515.
7 The President v. the Courts, Constitution Daily, https://constitutioncenter.org/blog/the-president-v-the-courts (last visited April 4th, 2019).
8 Cherokee Trail of Tears, About North Georgia, http://www.aboutnorthgeorgia.com/ang/Cherokee_Trail_of_Tears (last visited April 4th, 2019).
9 149 U.S. 304.
10 317 U.S. 111.
11 Scott v. Sandford, 60 U.S. 393 (1857).
12 The Lincoln-Douglas Debates of 1858, National Park Service, https://www.nps.gov/liho/learn/historyculture/debates.htm (last visited April 4th, 2019).
13 Winfield H. Rose, Further Thoughts on Marbury v. Madison, 37 PS: Political Science & Politics 391 (2004) (pointing out that the law Marbury struck down as unconstitutional—the Judiciary Act of 1789—was drafted by a member of the Constitutional Convention who preceded Marshall as Chief Justice and was one of 13 Framers who voted in Congress for the act); see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) (explaining in the preface, at vii, “neither that which would grant our appointed judiciary ultimate sovereignty over society’s substantive value choices nor that which would refer such choices to the beliefs of people who have been dead for over a century—is ultimately reconcilable with the underlying democratic assumptions of our system”); Michael Paulson, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706, generally and at 2707 (2003) (arguing that “the power of judicial review was never understood by [founding era] proponents and defenders of the Constitution as a power of judicial supremacy over the other branches”). And for a thoroughly entertaining debate on Marbury in general, see https://www.lubbockonline.com/opinion/2016-10-16/its-debatable-marbury-v-madison-mistake.
14 531 U.S. 98 (2000). The Court split 7-2 on one issue. But preventing Florida from recounting the votes? That part was 5-4.