Judicial supremacy

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US Supreme Court Building

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 (2d ed. 2006):[1]

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 utilizing the doctrine a Living Constitution.[2] 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. President Jackson's famous quip against judicial supremacy was his response to an overreaching U.S. Supreme Court decision written by Chief Justice John Marshall: "John Marshall has made his decision, now let him enforce it."

Judicial supremacy is a concept broader than judicial activism, in that judicial supremacy is a mistaken belief system adopted by many attorneys, laypersons, and people in all walks of life. It attaches an inflated significance of the judiciary beyond what is justified. Judicial activism, meanwhile, relates to how liberals attempt to attain political goals through legal decisions, such as legislating from the bench. Law schools are bastions of judicial supremacy where all of the professors believe in, while a few law professors may oppose judicial activism.

Roy Moore is an example of a former state supreme court justice who rejected judicial supremacy.


A supremacist is one who believes in or advocates the supremacy of a particular group.[3] 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.[4]

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."[5]

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."[2] 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.[6][7][8][9][10][11][12] Much judicial supremacy can be seen in cases regarding abortion.[13]

In 2007, Chief Justice John Roberts wrote for the court in criticizing and rejection the temptation for courts to exercise "judicial supremacy."[14]

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.[15]


See also


External links