Dangers of "judicial supremacy": the Supreme Court has perverted its role of applying the Constitution's meaning to particular cases into deciding what the Constitution means.(CONSTITUTION CORNER)

Imagine that certain investors have set up a business under a charter and by-laws that specifically provide for a number of managers assigned to oversee various separate and independent branches of the company, all of whom must answer ultimately to the investors. One of the managers then announces that: (i) he alone will determine, not only when the other managers are not in compliance with the company's policies, but also what those policies actually are; (ii) the investors will have no say in the making of these determinations; and (iii) if the investors dissent from his unilateral determinations, their only recourse will be to re-write the company's charter and by-laws, subject to the manager's own interpretations of what such amendments mean. How long would any investors in their right minds tolerate such a topsy-turvy state of affairs? Yet this is precisely how the governments of the United States and the states operate under the contemporary doctrine of "judicial supremacy."

"Judicial supremacy" is a radical over-extension--indeed, perversion--of the legitimate doctrines of "judicial review" and stare decisis ("to stand by matters that have been settled"). "Judicial review" posits simply that the Supreme Court has the authority to--and as a practical matter often must--construe the Constitution in the course of deciding what the Constitution describes as "Cases" and "Controversies" that come before the court. An opinion of the Supreme Court on a constitutional issue ascertains and applies the meaning of the Constitution on that particular point of law, under the peculiar facts of that case or controversy, as against the actual parties then before the court--but generally affects no one else. Stare decisis is merely the judicial policy that courts, in order to promote predictability and stability in the law, should abide by their previous decisions in future cases that raise the selfsame legal issues under substantially equivalent sets of facts--unless sound reasons exist for departing from those rulings.

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"Judicial supremacy" further claims, however, that an opinion of the Supreme Court determines and fixes the meaning of the Constitution as to the issue then under dispute, not simply as against the actual parties before the court, with respect to the specific facts of their case, but in principle as against everyone in the world similarly situated in all other imaginable cases--and, in particular, as against Congress, the president, the states, and even "We the People." That is, upon its mere enunciation the opinion itself becomes "the supreme Law of the Land" on that point of law, which everyone else, everywhere, is required to accept and follow.

Moreover, "judicial supremacy" asserts that: (i) a point of constitutional law decided in an opinion of the Supreme Court can be overruled or otherwise modified only by a later opinion of the Supreme Court or by a formal amendment of the Constitution (the meaning of which the court itself will decide under "judicial supremacy"); and (ii) nothing ought to, or even can, be done to the justices of the Supreme Court, individually or collectively, as a consequence of any opinion they hand down on an issue of constitutional law, no matter how obviously erroneous, politically motivated, economically or socially destructive, or even knowingly and willfully false and fraudulent it may be. Thus, under "judicial supremacy" the Supreme Court perverts "judicial review" and stare decisis into mechanisms for supervising, revising, reversing, and precluding the acts of all other branches of government--including the states and their subdivisions, the General Government, and even "We the People" themselves.

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"Judicial supremacy" contradicts the Declaration of Independence's overarching principle of popular sovereignty--that "Governments are instituted among Men, deriving their just powers from the consent of the governed"--which mandates a government (as Abraham Lincoln correctly described it) "of the people, by the people, and for the people," not arbitrary rule by judicial (or any other) elitists responsible to no one but themselves. The Constitution's Preamble itself declares that "We the People"--not "we the judges"--"do ordain and establish this Constitution for the United States of America." The Supreme Court itself has recognized that the power to enact "carries with it final authority to declare the meaning of the legislation." Propper v. Clark, 337 U.S. 472, 484 (1949). And Sir William Blackstone, the Founding Fathers' legal mentor, emphasized that "whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to." Commentaries on the Laws of England (American Edition, 1771), Volume 1, at 212.