A few observations on judicial supremacy in response to recent commentary

There has been a lot of learned commentary lately on the idea of judicial supremacy. (See, e.g., Mike Paulsen, Michael Ramsey (and again), Seth Barrett Tillman, Ed Whelan (and again), Ilya Somin, Andrew Hyman (and again), Evan Bernick, Randy Barnett). (HT: The Originalism Blog)

It's difficult to pick precisely where to wade in. So rather than pick one spot, I'll just add a few observations.

1. Originalist methodology:

To the extent that we are trying to figure out what our law provided with respect to judicial supremacy at the Founding, we should just ask the question of "original-law originalism": "What did our law, including the Constitution, provide regarding the authoritativeness of Supreme Court legal determinations about the meaning of the Constitution in 1789?"

This seems more promising than starting with "how the relationship between the monarch and judges was understood in eighteenth-century England" or the way in which "at least some framers expressed views that indicated a privileged role for judges in interpreting the law." To the extent that such understandings were sources of law, they will be picked up by the original-law inquiry. But there are much more obvious sources of law to begin with, such as the law of jurisdiction, the law of judgments, and the law of remedies. These are the sources of law we typically look to in determining the authoritativeness of all sorts of other judicial rulings; why shouldn't the authoritativeness of determinations about the legal meaning of the Constitution by the Supreme Court also be shaped by these sources? 

One feature of the judicial power in the Founders' law that persists in our law is that a court's authority to rule in a particular case depends on jurisdiction (both as to subject-matter and with respect to a person or thing within the court's authority to reach). As Will Baude has argued, the "judicial power" in Article III is best understood in intra-systemic legal context to incorporate consideration of jurisdiction into the determination whether and with respect to whom a judgment is binding: "the judicial power vested in Article III courts allows [federal courts] to render binding judgments that must be enforced by the Executive Branch so long as those courts have jurisdiction over the case." 

2. Remedies and Marbury:

Under the Founders' law, the binding effect of a legal determination with respect to a particular matter was tied to the remedies it was authorized to provide. This is why Marbury v. Madison counts against modern notions of judicial supremacy.

Chief Justice Marshall's extensive disquisition in that case on the Jefferson Administration's illegal refusal to deliver Marbury's commission established no law binding on the Administration (or anyone else for that matter). A writ of mandamus issued by that Court would have supplied the means by which that binding effect would have arisen. But the Court issued no such writ.

Chief Justice Marshall's opinion had three parts: (1) Did Marbury have a right to delivery of his commission? (2) Is there a judicial remedy for the violation of Marbury's right? (3) Is the right remedy a writ of mandamus from the Supreme Court? An affirmative conclusion in each of the three parts of Chief Justice Marshall's three-part opinion would have been legally essential to give rise to a judgment that altered the legal position of the Jefferson Administration.

The Court disposed of the case at (3), determining that the Supreme Court Court lacked authority to issue mandamus in the exercise of its original jurisdiction because the statutory grant of jurisdiction exceeded the constitutional grant. But part (2) was another way the Court's part (1) determination could have been legally inefficacious.  Even if issuance of the writ of mandamus would have been within the Court's jurisdiction, the Court's determination that Marbury had a vested legal right to his commission would not have been binding on the Administration unless this determination was enforceable via a judicial remedy such as a writ of mandamus.  

It very well may be that the Jefferson Administration did break the law in refusing to deliver Marbury's commission (and maybe even for the very reasons supplied by Chief Justice Marshall in the first part of his opinion), but the Supreme Court's first-part say-so on that point would itself have provided no content-independent legal reason to think so as a matter of the Founders' law. 

3. The judicially situated nature of judicial reasoning about the Constitution.

Constitutional doctrine applied by courts does not directly map onto constitutional meaning such that a judicial declaration with respect to the constitutionality or unconstitutionality of a law is equivalent to a judicial statement that a law is constitutional or unconstitutional.

A recent high-profile example comes from Chief Justice Roberts's outcome-determinative opinion in NFIB v. Sebelius. Roughly, the Chief Justice's reasoning took the form:

(1) The "individual mandate" exceeds Congress's authority if the relevant provisions are a mandate plus penalty rather than a tax.

(2) Even though the relevant provisions do not most naturally look like they impose a tax, they resemble a tax enough that the judiciary should treat them as amounting to a tax for purposes of refusing to hold them unconstitutional.

(3) The Court therefore should refuse to hold the "individual mandate" unconstitutional but instead treat the relevant provisions as amounting to a tax.

There is nothing about this reasoning that prevents someone who is not a federal judge from deciding that the "individual mandate" really is a mandate enforced by a penalty and therefore unconstitutional. Indeed, one who accepts the constitutional reasoning of Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito under the Commerce Clause and Necessary & Proper Clause probably should reason this way as long as he is under no role-based legal obligation (as Chief Justice Roberts believed he was) that requires a thumb on the statutory-interpretive scale to avoid a determination of unconstitutionality.