New era of supremacy?

From Miranda to FDA decisions, court calls itself ultimate decisionmaker

If there is one message delivered with absolute clarity this year from Chief Justice William Rehnquist, it is that in matters of constitutional law, his court will cede authority to no one.

This is not a Supreme Court that is inclined to defer to the judgment of Congress or the president - or even the states - when interpretation of the Constitution is at stake. In the court's view, there are only nine individuals with the power to settle the nation's most fundamental disputes. And the justices aren't about to relinquish any of that enormous clout to mere elected officials.

"If there is anything the court as a whole agrees on and to which they all adhere, it is the idea of judicial supremacy - that the Supreme Court is the final arbiter of the Constitution to the exclusion of the other branches," says John Yoo, a law professor at the University of California at Berkeley's Boalt Hall School of Law.

Although popular belief shares the court's high opinion of its powers, its supremacy is actually a more recent development - one that some say runs counter to the basic concept of a government of competing branches restrained by checks and balances.

As far back as the Founding Fathers, there were concerns that an all-powerful court might undermine, or even corrupt, the great American experiment.

Some court watchers today share those same concerns. Many see the emergence of an increasingly powerful court.

"We are living in an age of divided government, where the president and Congress are at war, where the Democrats and the Republicans are at war, and the court is filling the vacuum," says Akhil Amar, a professor at Yale Law School in New Haven, Conn. "This is a court that has very little respect for Congress and a lot of confidence in itself."

The observation comes at the close of the court's 1999-2000 term, a session packed with some of the most thorny and emotional issues facing the nation, and a term that dramatically illustrates the importance of this year's presidential election in shaping the court's future composition.

The justices strengthened abortion rights, embraced a neutral approach to parochial-school aid, and affirmed the right of the Boy Scouts to prevent gay men from becoming scout leaders.

They struck down student-led prayer at high school football games and invalidated a grandparents' visitation law that trampled too heavily on the rights of parents.

In addition, a narrow 5-to-4 majority continued to recalibrate the power balance between the federal government and the states in several important - and controversial - decisions. The split over federalism divides the court into two camps: one that argues that the Constitution is chiseled in marble, and the other saying it is a living document that can evolve with the times.

This federalism push, and the embracing of judicial supremacy, has contributed to one of the most significant trends in recent years: the large number of federal laws that have been struck down by the Rehnquist Court because, in the court's view, Congress exceeded the limits of its powers under the Constitution.

"Twenty-four acts of Congress have been invalidated in the past five years. If that isn't a record, it is close to it," says Walter Dellinger, former acting US solicitor general and a professor at Duke University in Durham, N.C.

"The court has placed itself in the center of the constitutional universe and doesn't give an awful lot of deference to Congress or the executive," Mr. Dellinger says.

The high court ruled that Congress exceeded its authority under the commerce clause when it passed the Violence Against Women Act, empowering the victims of gender-based violence to sue their attackers. It also ruled that Congress could not overstep 11th Amendment state immunity by allowing state employees to sue for age discrimination.

"These are very striking declarations of judicial supremacy," says Mr. Yoo.

Some analysts see the imprint of judicial supremacy in the court refusing to grant deference to the Food and Drug Administration to regulate cigarette sales to minors.

But court watchers say perhaps the most telling example of judicial supremacy came last week, with Chief Justice Rehnquist's majority opinion upholding the 1966 Miranda decision. At issue was a long-overlooked 1968 effort by Congress to overturn Miranda. In the past, Rehnquist was critical of the landmark case, questioning Miranda's status as constitutional doctrine.

But he nonetheless wrote the opinion invalidating the congressional attempt to overrule a Supreme Court ruling. "We hold that Miranda, being a constitutional decision of this court, may not be in effect overruled by an Act of Congress," Rehnquist wrote. He added, "And we decline to overrule Miranda ourselves."

In effect, the chief justice once again slapped Congress down while asserting supremacy in the constitutional realm.

Such a supreme position wasn't always taken for granted. For long periods in the nation's history, congressional debates revolved around whether a measure was in compliance with the Constitution, and presidents vetoed legislation on grounds that it violated constitutional safeguards.

But in more modern times, the role of constitutional policeman has been taken up almost exclusively by the high court. The danger inherent in this type of judicial supremacy was alluded to in Justice Antonin Scalia's biting dissent in Miranda. He warns that the court is in danger of becoming "some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy."

Scalia says the majority opinion implies that "this court has the power, not merely to apply the Constitution, but to expand it."

To many liberal analysts, the court's federalism decisions amount to a conservative type of judicial activism. "This court has shown a greater willingness to strike down Acts of Congress than any court since the early days of the New Deal," says Steven Shapiro of the American Civil Liberties Union. "In pursuit of what remains a largely conservative agenda, this has become one of the most activist courts in American history."

But others question how a "conservative" label could be affixed to a court that struck down Nebraska's "partial-birth" abortion ban, barred student-led prayers at Texas football games, and affirmed Miranda. "Conservatives lost all of them," says John Roberts, a Washington lawyer and former deputy solicitor general. "I don't think it can be said that this is a strongly conservative court."

(c) Copyright 2000. The Christian Science Publishing Society

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