by Mitch Kokai
Senior Political Analyst, John Locke Foundation
David Corbin and Matt Parks write for The Federalist website about their concerns surrounding Republicans’ approach to judicial supremacy.
Republicans, nevertheless, would do well to rethink their general orientation toward the judiciary, which for too long has combined a general lament over its political activism with a general acquiescence in the results of that activism, dressed in the respectable garb of concern for the rule of law.
This is well-illustrated by the responses of several leading GOP candidates to questions regarding federal court action on gay marriage.
Jeb Bush recently released a statement affirming his belief in traditional marriage while calling for respect for the Court’s decision, whatever it may be. Marco Rubio did the same, in more expansive terms: “I wouldn’t agree with their ruling, but that would be the law of the land that we would have to follow until it’s somehow reversed — either by a future Supreme Court, or a U.S. constitutional amendment, which I don’t think is realistic or foreseeable.” Scott Walker too made a similar point after a federal court ruled against Wisconsin’s traditional marriage law last year: “The federal courts have ruled that this decision by this court of appeals decision is the law of the land and we will be upholding it.”
The underlying premise in both Walker and Rubio’s statements is that the courts, in determining a particular case, settles “the law of the land” until and unless the decision is reversed by the Supreme Court or the people. This, however, concedes too much to the courts–a notion of judicial supremacy at odds with republican principles and the best of the Republican Party’s history.
As we’ve noted in a previous essay, Abraham Lincoln, in responding to the Supreme Court’s Dred Scott decision, distinguished the results of the case (i.e. the resolution of the dispute between Scott and Sanford) with the reasoning that informed it (a misreading of the 5th Amendment and the history of American citizenship). While the former could not be gainsaid without endangering the rule of law, the latter did not immediately or automatically bind other office holders, especially in the case where there was good reason to believe politics or ideology, rather than a careful reading of the constitutional text, had guided the Court’s argument.
Lincoln’s position, however novel it may appear to most today, was thoroughly grounded in the principles of the founding and the specific understanding of the role of the judiciary found in The Federalist (and largely relied upon by Chief Justice Marshall in his Marbury v. Madison decision). The principle stressed by Alexander Hamilton in Federalist 78 is not the special right of the Court to determine the meaning of the Constitution, but the duty of the Court to set aside unconstitutional laws as a means of protecting the Constitution and demonstrating its own submission to the text.
The discussion reminds this observer of a separate but somewhat related issue: the merits and demerits of “judicial activism.”