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Mitch's Mistake

Conservatives shouldn't defend judicial supremacy.

1:45 PM, Apr 5, 2012 • By ADAM J. WHITE
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President Obama has earned much criticism for preemptively challenging the Supreme Court's authority to strike down Obamacare's individual mandate. And deservedly so; his glib ignorance of constitutional history deserves a firm response.

But in criticizing President Obama and Obamacare, conservatives shouldn't go overboard in their defense of the Court.  It is one thing to argue that Obamacare's individual mandate is unconstitutional and that the Court can rightly strike it down.  It is quite another thing to argue that the Supreme Court alone is the ultimate arbiter of constitutional law.  Conservatives can oppose Obamacare, and support the Court striking it down, without endorsing of further advancing the theory of "judicial supremacy."

Unfortunately, Senate minority leader Mitch McConnell made that error today, in remarks to a Kentucky audience.  While he's a welcome addition to the chorus of criticism against the president's clumsy attack on the Supreme Court's consideration of the Obamacare cases, Senator McConnell goes too far in the other direction:

Well, fortunately, in matters of constitutional interpretation, we’ve got a final arbiter in this country, and that’s the Supreme Court. So I and many others brought our legal arguments to the Court last week. And after a careful study of the law and the precedents, and after weighing the arguments on both sides, the Court will make its final determination. Whether I agree with it or not, I’ll respect the decision.

Senator McConnell added that if the Court ultimately rules in the administration's favor, then he will continue to press for Obamacare's repeal, and he won't "delegitimize" the Court. But, he added, "at the end of the day, it’s the judiciary that ensures we’re a nation ruled by laws, not the whim of a President or a particular Congress."

In fact, McConnell's remarks are not much different from Chief Justice Charles Evans Hughes's remarks in 1907 (before he was appointed to the Court): "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution."  The Supreme Court embraced these sentiments years later, in Cooper v. Aaron: "the federal judiciary is supreme in the exposition of the law of the Constitution."

McConnell's remarks will raise a lot of eyebrows among conservatives (and liberals) who have spent a lot of time in recent years correctly challenging this notion of "judicial supremacy." The Court decides cases, and its decisions bind the parties and the lower courts, but the other branches of government are no less responsible for interpreting the Constitution in their own work.  The most famous exponent of this view was Abraham Lincoln, in his first inaugural address:

the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Sen. McConnell suggested that the president's criticism of the Court was "unprecedented."  I have my doubts; the Founders intended for the three branches of government to press against one another, and it is hard to believe that no president -- not Lincoln in the Civil War, or Teddy Roosevelt in the Northern Securities case, or FDR in the New Deal, or Truman during the Youngstown steel seizure case -- has ever criticized the courts over pending litigation.

But even if presidential criticism of the courts over pending litigation is unprecedented, it is not inherently a bad thing.  It is simply an example of constitutional checks and balances in action. Indeed, it is liberals who have most often tried to shield the courts from criticism by claiming judicial supremacy and finality in interpreting the Constitution; it is conservatives--constitutional conservatives--who have insisted on the limits of the judiciary's claims.  President Obama was not wrong simply because he criticized the Court; he was wrong because the substance of his criticism was wrong. Sen. McConnell, and all of us, should take care not to confuse the two arguments, and should take care not to seem to defend government by the courts. It is the supremacy of the Constitution and the constitutional system we need to defend, not the supremacy of the courts.

Adam J. White is a lawyer in Washington, D.C.

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