At Volokh Conspiracy, Randy Barnett has more on the judicial supremacy debate, with extensive quotations from the founding era. His conclusion:
I do not believe that the Constitution means what the Supreme Court says it means (and for this reason I am skeptical of adhering to precedents that are contrary to the text of the Constitution) …
But I do believe that, when the Supreme Court finds that a law is unconstitutional, under our system of government, that law is rendered null and void. It ceases to be binding on the citizenry and the executive branch would literally be acting lawlessly by continuing to enforce it. Just as Congress may reenact a law that has been vetoed by the president, under the separation of powers, the Supreme Court may not enjoin Congress from either reenacting a previously invalidated law, or from enacting other laws in defiance of the Court’s reasoning, but a law that has been nullified is no longer the law of the land, and the executive may no longer enforce that law. End of story.
At Liberty Law Blog, Greg Weiner disagrees: What Is Judicial Equality? Responding to Professor Barnett's description of judicial equality:
Granted, all three branches get a say, but it matters whose word is last. Fair enough, Congress assents to the constitutionality of a law when it passes it; yes, the President does so when s/he signs it; but the Court, ruling last, can annul them both, and no one, on Barnett’s reading, can stand in its way. Sorry, but how is that not supremacy?
A truly co-equal branch would have no more right than the other two to pronounce on constitutional questions, which would have to mean its views would be open to challenge in turn. As near as I can tell, Barnett acknowledges no authority sanctioned to challenge the Court once it renders a decision on a constitutional dispute, save the Court itself changing its mind, the elected branches changing the decision that triggered the dispute or the people changing the Constitution.
The difference here may distill to one of perspective. The legal view of the Constitution seeks conclusive decisions at discrete moments. The political view—political in the noble sense—understands the regime to be subject to interpretation by all three branches, and thus the deliberate judgment of the people, over time.
He also has an earlier post here: Politicizing the Constitution Is Necessary and Proper. From the introduction:
Americans search for precision and finality in a constitutional system that is instead built for ongoing conversation and conflict. The question is not which branch is “expert” enough to have the final say at any particular moment, but rather the balance between the branches over time.
Constitutional conflict should [not upset us]. It might be more problematic were it limited to discrete moments that led to institutional crisis or paralysis, but Publius’ model holds it to be an organic and ongoing process. The Constitution does not render authoritative, final meanings captured as snapshots in time. These meanings instead resemble time-lapse photographs articulated by interaction between the executive, legislature, and judiciary.
Posted at 10:29 AM