At Volokh Conspiracy, Ilya Somin: Defending judicial supremacy (adding some important points to the ones I made here). This quote from Hamilton is one I should have included in my post:
In Federalist 78, Hamilton also emphasized that ” the courts 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” by the Constitution. Obviously, courts cannot keep the legislature “within the limits” if the legislature and executive are free to disregard judicial rulings striking down laws.
And this further point is important:
Finally, it’s worth emphasizing that judicial supremacy is a constitutional principle, not an absolute rule of political morality that always trumps competing considerations. There can be unusual cases where government officials are morally justified in violating the Constitution, including by disobeying judicial rulings. As Thomas Jefferson put it in defending his administrations’ purchase of Louisiana (which he thought was unconstitutional), “A strict observance of the written laws is doubtless one of the highest duties of a good citizen, but it is not the highest. The laws of necessity, of self preservation, of saving the country when in danger are of higher obligation.”
Whether or not Jefferson was right about the Louisiana Purchase [editor's note: I think he was wrong that the Purchase was unconstitutional], his general point is correct. There can be rare cases where violations of the Constitution are justified, if that is the only way to prevent a great evil. For example, even if critics were right to claim that the Emancipation Proclamation was unconstitutional, Lincoln was still justified in adopting it, because slavery was such an enormous evil. But such exceptional cases should not lead us to reject the importance of adhering to the Constitution as a general rule – or to reject judicial supremacy.
Posted at 6:42 AM