Thus, when House Minority Leader Nancy Pelosi was asked for her reaction to the Supreme Court’s notorious eminent-domain ruling in Kelo v. New London, she replied as though a new tablet had been handed down from Sinai: “It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken.’’
But judges are not divine and their opinions are not holy writ. The judiciary is intended to be a co-equal branch of government, not a paramount one. If the Supreme Court wrongly decides a constitutional case, nothing obliges Congress or the president - or the states or the people, for that matter - to simply bow and accept it.
Naturally this isn’t something courts have been eager to concede. Judges are no more immune to the lure of power than anybody else, and their assertion of judicial supremacy - plus what Gingrich calls “the passive acquiescence of the executive and legislative branches’’ - has won them an extraordinary degree of clout and authority. That aggrandizement, in turn, they have attempted to cast as historically unassailable. In Cooper v. Aaron , the 1958 Little Rock desegregation case, all nine justices famously declared “that the federal judiciary is supreme in the exposition of the law of the Constitution’’ - a principle, they asserted, that has “been respected by this court and the country as a permanent and indispensable feature of our constitutional system.’’
That wasn’t really true. In the words of Larry Kramer, dean of Stanford’s Law School , “The justices in Cooper were not reporting a fact so much as trying to manufacture one.’’ It worked. In recent decades, the claim of judicial supremacy has clearly prevailed. Look at the way it’s taken for granted, for example, that whatever the Supreme Court decides next spring about the constitutionality of the ObamaCare insurance mandate will settle the issue.
