As Ramsey points out, the idea of judicial supremacy does not imply that judicial decisions are necessarily correct or that officials in other branches of government are forbidden to engage in constitutional interpretation of their own, and express opposition to interpretations adopted by judges. It only means that they must obey judicial decisions invalidating their laws or policies, and must follow the rules laid down in those decisions in similar future cases.
I would add that the case for judicial supremacy is bolstered by the likelihood that judges will, on average, have greater expertise in constitutional interpretation than officials in other branches of government. Because judges don’t have to run for reelection, they may also be less likely to subordinate constitutional principles to short-term political needs, or to give in to a crisis atmosphere. That doesn’t mean that judges will never make mistakes in constitutional cases. Far from it! But the rate of error is likely to be lower.
Many critics of judicial supremacy fear that it implies that federal judges could set themselves up as a kind of judicial oligarchy, overriding the will of the people whenever they wish. However, even under a regime of judicial supremacy, there are still many constraints on judicial power. Most obviously, the appointment and confirmation process ensure that most federal judges hold views that are not very far from the political “mainstream.” In addition, as a practical matter, judges are still reliant on assistance from the other branches of government in enforcing most of their rulings. And, even in a political culture that respects judicial supremacy, there are many ways for the other branches to drag their feet in implementing judicial decisions.
Finally, there is the risk that judges will make a ruling that would have catastrophic results if obeyed. For example, critics cite Lincoln’s refusal to follow the Dred Scott decision during the Civil War as a good example of a case where accepting judicial supremacy might lead to terrible results.
But, of course, there are comparable risks on the other side. If judicial supremacy is not accepted, terrible consequences might result from the other branches’ refusal to follow judicial decisions. For example, during World War II, the Roosevelt administration might well not have followed a judicial decision invalidating the internment of Japanese Americans. State (and, more rarely, federal) officials often failed to follow judicial decisions invalidating racial discrimination and segregation. Ultimately, any constitutional system carries risks. But those risks are lower if the executive and legislative branches must follow judicial decisions on constitutional issues, than if they don’t.
Finally, it’s worth emphasizing that judicial supremacy is a constitutional principle, not an absolute rule of political morality that always trumps competing considerations. There can be unusual cases where government officials are morally justified in violating the Constitution, including by disobeying judicial rulings. As Thomas Jefferson put it in defending his administration’s purchase of Louisiana (which he thought was unconstitutional), “A strict observance of the written laws is doubtless one of the highest duties of a good citizen, but it is not the highest. The laws of necessity, of self preservation, of saving the country when in danger are of higher obligation.”
Whether or not Jefferson was right about the Louisiana Purchase, his general point is correct. There can be rare cases where violations of the Constitution are justified, if that is the only way to prevent a great evil. For example, even if critics were right to claim that the Emancipation Proclamation was unconstitutional, Lincoln was still justified in adopting it, because slavery was such an enormous evil. But such exceptional cases should not lead us to reject the importance of adhering to the Constitution as a general rule – or to reject judicial supremacy.
UPDATE: I have made a few minor changes in phrasing, to improve clarity.
UPDATE #2: Evan Bernick of the Institute for Justice has some thoughtful comments on this issue. Here is an excerpt:
To argue, as Ramsey, Somin, and myself have, that the judiciary has the authority and, indeed, the duty, to nullify unconstitutional actions and that the other branches must adhere to its judgments is not to make the judiciary supreme over the other branches but, rather, co-equal. Paulsen and Whelan would deprive the judiciary of a power that every other branch possesses–that is, the power to serve as a check against the exercise of potentially unconstitutional government action–and prevent it from guarding against a grave danger that it was designed to serve as a bulwark against.