At Huffington Post, Evan Bernick: Judicial Co-Equality Is Not Judicial Supremacy: Why the Judiciary Has the Final Say in Constitutional Disputes. Commenting on the recent exchanges on judicial supremacy, he observes:
. . . I believe that certain aspects of the debate are being framed in the wrong terms. The fundamental question presented by Paulsen and Whelan's position is not whether the judiciary is superior in its interpretation of the Constitution or in any other respect but whether it is inferior to the other branches and disabled from preserving the rule of law. Put differently, their rejection of judicial supremacy is in fact a rejection of judicial co-equality.
As explained further on:
If the judiciary's say is not final — if it can simply be ignored by the other branches in cases of constitutional disagreement — it is denied a prerogative that every other branch possesses. Legislatures, after all, cannot be compelled to pass statutes, and executives cannot be compelled to sign them. Both are obliged to engage with the Constitution and carefully consider whether a proposed measure is consistent with its terms. If they decide that the answer is "no," that is the end of the matter.
On Paulsen and Whelan's account, however, the judiciary's "no" does not end the matter. Quite the contrary. On their telling, the Supreme Court's decision that an act of government is unconstitutional binds only the individual parties in a given case. The other branches must decide for themselves whether they will accept and follow the rationale of the decision. As a result, the political branches are, practically speaking, allowed to be judges in their own cause, and a state of affairs even more uncertain and more threatening than the state of nature looms — one in which those bent on pursuing morally illegitimate ends are far more capable of accomplishing them than they would be absent any government at all. To borrow Locke's concept, the known and indifferent judge is available, but when he is most urgently needed, he is reduced to issuing what are little more than advisory opinions.
Randy Barnett makes similar points, drawing on his outstanding article The Original Meaning of the Judicial Power, here: In defense of judicial equality. His first point is this:
First the conceptual point. In some respects “judicial supremacy”–like “judicial activism”–is a deliberately loaded pejorative term. I agree entirely with the “departmentalist” vision identified by Paulsen and Whelan that each constitutional actor has a duty to adhere to the written Constitution that is independent of the opinions of other constitutional actors. So, if the Congress independently decides that a particular measure is beyond its enumerated powers or violates the rights of the people, it may decline to pass such a law regardless on whether the Supreme Court would uphold it. I made this argument to the Senate Judiciary Committee in its hearing about the constitutionality of the Affordable Care Act (video of my opening statement is here). Likewise the President may veto a measure that he believes is unconstitutional, independent of the views of Congress or the courts, as Andrew Jackson did with the bill rechartering the second national bank (his veto message is here). In this respect, the other branches are not “bound” by the views of the judiciary.
I agree. Professor Barnett continues:
As a separate and co-equal branch of government, the judiciary gets to render its opinion on the constitutionality of a law, but only if the other branches first decide the measure is constitutional. Because, as Evan Bernick points out, the judiciary’s concurrence that a law is constitutional is a function of its equality to the other branches not its supremacy. And the judiciary only has the option to nullify or invalidate a law, it does not have the power to enact it. This is why judicial nullification is not “legislating from the bench.” Judicial negation is not legislation. Only Congress has the “legislative power” to enact the law in the first instance. Should it refuse to enact it, the other branches have no proper constitutional power to do it in their stead. (This is why some of the recent “phone and pen” exercises of executive power are so constitutionally problematic.)
In short, the judicial power to invalidate a law because it is unconstitutional is a manifestation of judicial equality, not judicial supremacy. But this necessarily means that the law is void unless the judiciary concurs, and this judgment is then “binding” on the other branches, just as the other branches refusal to enact or sign a law is binding on the judiciary. But is this view a modern invention? Hardly. [He continues with substantial founding-era evidence].
Posted at 9:20 AM