Last month Hillary Clinton told a group of supporters that if she is elected to the White House in 2016, she will only put forward Supreme Court nominees who favor overturning the Court's 2010 campaign finance decision in Citizens United v. Federal Election Commission. In short, she will impose a litmus test.
But what if Hillary Clinton is elected president and then decides to pursue a different line of attack against Citizens United? What if President Hillary Clinton decides that Citizens United is so wrong, so contrary to the Constitution, that she is under no obligation to acquiesce in it? President Hillary Clinton then orders the Justice Department to ignore Citizens United and to enforce the very sort of campaign finance restrictions that the Court ostensibly wiped from the books in 2010. Would President Hillary Clinton possess the lawful power to act in this fashion and bypass a decision of the U.S. Supreme Court?
According to a pair of prominent conservative legal commentators, the answer to that last question is yes. Michael Paulsen, co-author of the new book The Constitution: An Introduction, denounces "judicial supremacy" as a "recurrent myth" that harms America. "The power of constitutional interpretation," Paulsen declares, "is not exclusively vested in the courts, with all other branches and officers of government bound to accept, unthinkingly and reflexively, whatever the courts decide." As an antidote to judicial supremacy, Paulsen defends what he calls "the propriety of executive and congressional non-acquiescence in judicial precedent that, in the independent judgment of these other actors, conflicts with the Constitution."
Writing in support of Paulsen's interpretation, National Review's Ed Whelan states the case more bluntly. "We live in a legal culture besotted by the myth of judicial supremacy," Whelan argues. "According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning." In Whelan's telling, the president is not duty-bound to abide by the Supreme Court if the president's "own readings of the Constitution" contradict the Court's unwelcome orders.
But the problem with the Paulsen-Whelan approach, as University of San Diego law professor Michael Ramsey points out, is that it would render "every branch a law unto itself, which seems inconsistent with the framers' idea of a written Constitution to check the branches' tendency to wrongfully augment their power and of an independent judiciary to keep the political branches within their constitutional boundaries." Indeed, as James Madison once observed, one of the chief benefits of having "independent tribunals of justice" in our system is that they can act as "an impenetrable bulwark against every assumption of power in the legislative or executive." Alexander Hamilton made a similar point in Federalist 78. "The courts," Hamilton wrote, "were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority." To say the least, the Supreme Court won't be able to serve as much of a bulwark in a regime characterized by "executive and congressional non-acquiescence" to Supreme Court rulings.
Furthermore, as Georgetown law professor Randy Barnett observes, the Paulsen-Whelan approach falls short when measured against the full historical backdrop that produced the Constitution. "What concerned the framers most was not the existence of the judicial power of nullification," Barnett notes, "but the likely weakness of the judiciary in holding the line. In this concern, they were prescient. As we saw with the challenge to the [Patient Protection and Affordable Care Act], courts more often find a way to 'defer' to the majoritarian branches than to stand in the way."
Ramsey and Barnett both cite a range of persuasive historical evidence to support their side of this debate, including the records of the 1787 Constitutional Convention in Philadelphia and the writings of various constitutional framers and ratifiers. Here's one more piece of founding era evidence which further undercuts the flawed Paulsen-Whelan interpretation.
In 1803 the Virginia jurist St. George Tucker published his View of the Constitution of the United States. It was the first extensive scholarly discussion of the new Constitution and it served as something of a legal textbook for several generations of lawyers and judges. Tucker's View still commands respect today, and has been cited in recent years by the Supreme Court as evidence of what founding era legal experts thought about certain constitutional provisions. In other words, Tucker is a helpful guide to determining the original meaning of the Constitution.
"If the legislature should pass a law dangerous to the liberties of the people," Tucker maintained, "the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution." Put simply, if the accused is innocent of violating the law, he must be acquitted. If the law itself is in conflict with the Constitution, it must be voided. "Decisions in favour of the citizen are carried into instantaneous effect," Tucker continued, "by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced."
Yet how can a Supreme Court decision go into "instantaneous effect" if, as Paulsen and Whelan allege, Congress and the president are each empowered to ignore the Court's order based on their "own readings of the Constitution"? The answer, of course, is that judicial decisions cannot reliably go into effect under this approach.
The judiciary, Tucker concluded, "is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence."
Tucker's view is consistent with Madison's conception of the judiciary as an "impenetrable bulwark" and Hamilton's description of the judiciary as "an intermediate body between the people and the legislature." The Paulsen-Whelan approach, by contrast, would turn Tucker, Madison, and Hamilton on their heads and transform the judiciary into no shield at all.