Article III of the United State Constitution sets out the powers of the judicial branch. These powers include being the final appellate jurisdiction of the United States “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.” The landmark case of Marbury v. Madison written by Chief Justice Marshall discusses this at great length, noting that the court alone has the final say in interpretation of the words of the Constitution and “whether an act, repugnant to the constitution, can become the law of the land.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). While a relatively simple idea, this is perhaps the most important check of power on both the legislature and executive. When used in such a way that they can make fundamentally wrong decisions without repercussions, legal commentators correctly question whether the Supreme Court’s authority outweighs all other branches and perhaps goes too far.
One of the great opponents to judicial supremacy is none other than the Great Emancipator, Abraham Lincoln. Much of his distaste for the court’s supremacy came from the Dred Scott decision in 1857, which held that slaves were not citizens of the United States, and therefore had no right to jurisdiction of the Supreme Court. Much of Lincoln’s rapid rise to the presidency in 1860 can be attributed to his debates against Stephen Douglass in 1858 for the Illinois senate seat in which one of his favorite topics of discussion was slavery and the vehemently wrong decision in Scott. For Lincoln, Scott represented exactly what the founders did not want the judiciary to do under the constitution: legislate from the branch. Giving the Supreme Court absolute power to interpret the constitution will cause the will of the People to “resign the government into the hands of that eminent tribunal.” This language came from the same man that loved the constitution so deeply that he would have likely given his life for it, the man that wrote in 1861 as the Civil War raged on that the Declaration of Independence is an apple of gold with the constitution framing it in a picture of silver, conjuring the language of Proverbs 25:11. The same man that repeatedly told anyone that would listen that he had no right under the constitution to end slavery in the United States.
Giving the Supreme Court absolute power to interpret the constitution will cause the will of the People to “resign the government into the hands of that eminent tribunal.”
Yet, Lincoln still hated the idea of judicial supremacy. Thankfully, he did more than any other president has to combat it. Perhaps most notably, contrary to Dred Scott, Lincoln gave passports to freed slaves to enter U.S. during his presidency, effectively treating them as citizens despite the Dred Scott decision. Lincoln found the answer to judicial supremacy by wielding the power of the executive against it, in essence simply ignoring the courts decrees.
What are the people to do, however, when the executive uses its powers to ignore judicial supremacy and produce such a horrible result? This is most aptly demonstrated by the Trail of Tears. In 1832, the Supreme Court, still led by Chief Justice Marshall, ruled in Worcester v. Georgia that President Andrew Jackson did not have the power to force the Cherokee Native American tribe out of their homes in Georgia. Upon hearing this, Jackson quipped, “John Marshall has made his decision; now let him enforce it!” The result was four thousand dead Cherokee on the way to Oklahoma.
What is to prevent another president from doing the same thing to gun rights? Some draconian COVID law? Thankfully, the founders created checks for the legislature through impeachment and simply doing its job and passing new laws. Civil disobedience is also one of the most effective measures to take against government suppression, even if it takes the longest.
Either way, the will of people will always prevail, even if the eminent tribunal does not want it to.
May the Gadsden Fly Forever.