The Volokh Conspiracy

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Justice Sotomayor's Flawed History To Promote The Myth of Judicial Supremacy

She still does not understand who decides.


The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

Supreme Court opinions are not included in that list. Cooper v. Aaron, however, elevated decisions of the Court to the "supreme Law of the Land." Regrettably, three members of the Supreme Court embrace this myth of judicial supremacy.

In Whole Woman's Health v. Jackson, Justice Sotomayor wrote a partial-dissent that was joined by Justices Breyer and Kagan. She committed the cardinal sin of judicial supremacy–conflating actual federal law with a decision of the Supreme Court. Even worse, she distorted the history leading up the Civil War to perpetuate this myth. All in the span of a paragraph.

[S.B. 8] is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to "veto" or "nullif[y]" any federal law with which they disagreed. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843). Lest the parallel be lost on the Court, analogous sentiments were expressed in this case's companion: "The Supreme Court's interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions." Reply Brief for Intervenors in No. 21–50949 (CA5), p. 4.  The Nation fought a Civil War over that proposition, but Calhoun's theories were not extinguished. 

Calhoun asserted the power to nullify federal statutes–acts of Congress that are, pursuant to the Supremacy Clause, the supreme law of the land. Texas has not purported the power to nullify any federal statute. Justice Sotomayor derisively quotes from Jonathan Mitchell's brief. But this genius is emphatically correct: Roe v. Wade and related precedents are not part of the supreme law of the land. They are merely opinions of the Justices who wrote them–and lousy opinions at that.

The United States did not fight a Civil War over the theory of judicial supremacy. But judicial supremacy was a contributor to the Civil War. Of course, I speak of Dred Scott v. Sandford. Chief Justice Taney recognized a new constitutional right based on substantive due process in order to resolve a controversial social debate by placing it beyond the power of the elected branches. Sound familiar? In Casey, Justice Scalia directly equated Roe and Dred Scott.

It is no more realistic for us in this case, than it was for [Chief Justice Taney] in [Dred Scott], to think that an issue of the sort they both involved an issue involving life and death, freedom and subjugation—can be "speedily and finally settled" by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S.Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln–do not violate a Supreme Court precedent that binds particular parties, but do not give it any more effect than the law requires.

I will repeat a refrain from my post on Dobbs. Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.