What is the distinction between judicial review and judicial supremacy?

In 1608 Sir Edward Coke openly challenged the authority of King James I; stating that “the King in his own person cannot adjudge any case… but that this ought to be… adjudged in some Court of Justice, according to the law and custom of England.” This was a time in which the king believed himself to be chosen by God. It was treasonous to suggest that anything could be above the king other than the Almighty himself.
Nearly two centuries later, a new country was being founded: The United States of America. Its founding fathers were disciples of the Enlightenment, declaring reason, science and liberty to be its highest values. Among the pantheon of philosophical inspiration for the American Constitution was Coke; the result of which was the establishment of a judicial system capable of ensuring the government could never become greater than the law. At the top of this system was the Supreme Court.
The purpose of this essay is to determine the distinction between judicial review; the ability to review decisions in government (federal and local) and decide where it is unconstitutional, and judicial supremacy; the ability to “erase the distinction between its own opinions interpreting the Constitution and the actual Constitution itself”. We will first determine the meaning of judicial review, examining it as an ideological principle and as a practice. Second, we will examine judicial supremacy; what it means, how it is practiced as well as looking at those who argue against it. Finally we will bring judicial review and judicial supremacy together, observe how they are parts of the same process, the building blocks of Supreme Court authority, and ask whether it would be possible to have one without the other.
The Supreme Court has the power of judicial review. It will make decisions on a variety of cases regarding state and federal affairs and legislation based upon the constitution. There are literally tens of thousands of cases in the history of the Court. Gradually over the last two hundred and thirty years the powers of judicial review have grown enormously, both through precedents made within the court itself and through acts of Congress. The earliest breakthrough in Supreme Court power was the case of Marbury vs. Madison (1803) in the first year of John Marshall’s Court.
William Marbury had been appointed Justice of Peace for the District of Colombia by President Adams, but was not allowed to take office. He petitioned the Supreme Court to force Secretary of State James Madison to deliver his commission. The court refused this request stating that the Judiciary Act 1801, on which his case was based, was unconstitutional. As Chief Justice Marshall summarised:
The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts… If the former… be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts… to limit a power in its own nature illimitable.
This case may have formed our understanding of how judicial review is practiced, but how is it defined? We know that prior to 1803 the Supreme Court had only a small role to play in US governance with only around a hundred cases in its first decade (1791-1800), so it is evident that the constitution did not necessarily intend, nor indeed seek to prevent a Supreme Court as powerful as it has become in the successive courts post-Marbury vs. Madison. So how did the Constitution define the Supreme Court’s role of judicial review? The Supreme Court is first mentioned in Article 3 of the Constitution. Section 1 states:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Section 2 then states:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…
Evidently the Constitution gives strong judicial power to the Supreme Court, but did it allocate it the role of guardianship of the constitution? In the early twentieth century Charles A. Beard asked the same question. At the time there had been a resounding ‘no’ among the contemporary legal writers of his day. He quotes Walter Clark, Chief Justice of North Carolina (1903-1924) who argued that not only was there no justification for the Supreme Court’s power in the Constitution, but that proposals for such powers had been voted against on three separate occasions.
A proposition was made in the convention[]… that the judges should pass upon the constitutionality of acts of Congress. This was defeated on June 5th, receiving the vote of only two states. It was renewed… on June 6, July 21, and finally again for the fourth time on August 15;
Yet despite this the constitution does allow for judicial review, even if it only vaguely hints at what the Supreme Court’s powers should be. And despite the aforementioned decision of the Philadelphia convention, the Supreme Court continues to exercise judicial review; that has become its purpose. Before Marbury vs. Madison, and even before the ratification of the Constitution, according to Schwartz, there was talk of how the judiciary would declare laws to be void where they were deemed to be unconstitutional. He references cases such as Holmes vs. Watson (New Jersey 1780) and Commonwealth vs. Caton (Virginia 1782) both of which declared state legislation to be against the constitutions of their respective states.
Judicial reviews are the cases which result in the judiciary declares acts of Congress to be either constitutional or unconstitutional. It is a tradition rather than a constitutional role of the Supreme Court (and lesser courts on occasion) which has developed naturally as a result of the need for checks and balances within the political system.
So what is judicial supremacy? This is a harder concept to tie down. It is much less a practice of the Supreme Court than an idea about the kind of power the Supreme Court has. For Whittington who I quoted in my introduction, judicial supremacy is the ability of the Supreme Court to interpret the constitution in any way it sees fit, and be the final word on constitutional affairs. Under this definition the Supreme Court cannot be wrong. It is not simply that the Court has interpreted the constitution in one of many ways, but that the Supreme Court has read the Constitution in the correct way. For all intents and purposes the Supreme Court are the Constitution, and as such all public officials must abide by its rulings.
The Supreme Court itself has been known to have varying interpretations of the Constitution in the two hundred years that it has possessed this power. In the case of Scott vs. Sandford (1856/7) the Supreme Court ruled that those born into slavery could never be American citizens, and held that slaves were property protected by the Constitution. Admittedly it was an amendment to the Constitution in 1865 which finally put an end to slavery, but there are parts of the Constitution which would already have made the case for abolition. The Declaration of Independence famously states that “all men are created equal”. Of course the declaration is not an article in the Constitution, but it would class as a Treaty which under Article 3 of the Constitution must be upheld by the judiciary.
Later in the cases of Brown vs. Board of Education (1954) and Roe vs. Wade (1973) the Supreme Court made huge decisions which though they did not change any existing statutes, changed the common law dramatically. In the former case the Court decided that it was unconstitutional for segregated public schools to exist. This was not officially a change in the law, but rather a precedent for interpreting the constitution. In the latter case the Court declared it unconstitutional for any state to ban abortion, and set clear guidelines about how it ought to be allowed.
As we saw earlier, judicial review can be a controversial subject among some writers; judicial supremacy, naturally is even more controversial (although still widely accepted). To an extent one could argue that although the Justices may not themselves above the law, they are perhaps more akin in their powers to James I than to Sir Edward Coke. James claimed to be above the law, and in practice he was. It wasn’t until the trial and execution of Charles I in 1649 that Coke’s belief that no one was above the law became legal reality. Coke of course, was never above the law and didn’t claim to be. The Justices of the Supreme Court, though they, like Coke, make no such claim, are guardians of the law, and have been accused of interpreting the law in a way that is distinctly political. Jeffrey Allan Segal and Harold J. Spaeth point to Bush vs. Gore (2000).
the Court’s three most conservative judges… overruled the Florida Supreme Court’s interpretation of Florida law and declared that Florida’s recount violated the equal protection clause… [two others]… agreed… and ruled… that the current recount was illegal and set a deadline (two hours hence!) that made any subsequent recount impossible… the Court’s most liberal members… who usually support equal protection claims, found nothing wrong with the recount.
Judicial supremacy gives the Supreme Court complete control over the official interpretation of the constitution. While new cases will no doubt succeed in changing the minds of the Justices, and thus the official interpretation, it is clear that the Supreme Court’s decisions are final, unquestionable even sacred. The power of nine unelected judges to shape and mould the law of the land is almost monarchical.
There is a clear distinction between judicial review and judicial supremacy. Judicial review is, to put it simply, what the Supreme Court does – judges cases where laws come into dispute, and where questions may be raised about constitutionality. Judicial supremacy alternatively is the power of the Supreme Court to be the final word, to be unquestionable as the guardians of the Constitution. Yet the two go hand in hand. It could be possible for judicial review to exist without judicial supremacy, but in this scenario the word of the court could be ignored, Congress would be able, if it so desired, to interpret the constitution in its own way. It is impossible in practice for one to exist without the other.
While perfectly legitimate questions may be raised about the legitimacy of the Supreme Court’s powers, it would be very difficult otherwise to uphold the Constitution at all. The American political system has been built on the principle of checks and balances, in order to curb the power of governmental institutions; Congress curbs the power of the President, and the judiciary – though it may not have been intended this way in the Constitution – curbs the power of Congress. While there may be problems arising from these powers, they are a necessary part of upholding the Constitution.