Judicial Supremacy is the liberal, elitist view that courts are "supreme" over the other two branches of government and the Constitution, and that courts have the authority to tell the president and Congress what they may or may not do. As explained by Phyllis Schlafly in her classic book on the topic, The Supremacists (2nd Ed. 2006):
|“||Textbooks still say that we have three balanced branches of government – but textbooks are badly behind the times because one branch has assumed authority over the other two. Today, we are suffering from the oppressive rule of judicial supremacists who have replaced the rule of law with the rule of judges.||”|
Under judicial supremacy, the courts seize power for themselves to 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, as courts impose their own view of a Living Constitution. In this light, judicial supremacy amounts to grabbing power by one branch of government to positively create law.
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.
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.
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. This point of view places the Supreme Court at the head of an unauthorized, ongoing Constitutional Convention.
- 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)
- "What is Progress?" by Woodrow Wilson – Guest Essayist: Robert Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale
- The Supremacists, Foreword, by Phyllis Schlafly
- The Myth of Judicial Supremacy, National Review
- Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History
- The Supreme Court as Sitting Constitutional Convention
- Originalism in American Law and Politics: A Constitutional History
- The Problem of Judicial Supremacy
- All Hail the Death of Truth! the Advent of the Postmodern Era
- The Ongoing Constitutional Convention, American Spectator
- Mark Levin Wows State Legislators: 'Take Your Power Back', Breitbart.com
- Constitutional Interpretation in Republican and Mixed Regimes
- United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Auth.
- How to Read the Constitution: Self-Government and the Jurisprudence of Originalism