MKitch3|Sept 19, 2025
Executive Summary
The Constitution of the United States explicitly declares itself—and laws made in pursuance thereof—as the supreme law of the land (Article VI, Clause 2). Nowhere does it elevate the Supreme Court to that status. Yet over time, through practice and precedent, the Court has come to be treated as the final arbiter of constitutional meaning. This paper examines the historical roots of this transformation, the warnings issued by presidents and founders against judicial supremacy, the legal and political events that entrenched it, and the implications for American constitutional government today.
I. Constitutional Text: What the Founders Wrote
Article VI, Clause 2 (Supremacy Clause):
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Key features:
- The Constitution itself is supreme.
- Laws made pursuant to it are supreme.
- Judges (state and federal) are bound by it.
- Nowhere does it say “the Supreme Court’s interpretations are the supreme law.”
The judiciary is established in Article III, with jurisdiction defined, but there is no explicit claim of “judicial supremacy.” The very idea of the Court being the “final word” was created later, politically and culturally.
II. The Birth of Judicial Review
Marbury v. Madison (1803):
Chief Justice John Marshall declared it the duty of the judiciary “to say what the law is.” This was the first assertion of judicial review: the idea that courts could strike down laws inconsistent with the Constitution.
Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.”
The Constitution never states this directly. Judicial review was widely accepted as reasonable, but the claim that the Court’s interpretations are binding on everyone—forever—was a leap.
III. Early Resistance to Judicial Supremacy
Jefferson’s Warnings
Thomas Jefferson fiercely opposed judicial supremacy:
- 1820 Letter to William Jarvis:
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” - He argued that each branch had the equal right to interpret the Constitution:
“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Jefferson’s philosophy: every branch has the duty to uphold the Constitution, not defer to judges.
Jackson’s Defiance
President Andrew Jackson rejected judicial supremacy during the Worcester v. Georgia controversy (1832). While the quote “John Marshall has made his decision; now let him enforce it” is apocryphal, Jackson did ignore the Court’s decision, demonstrating his belief that the judiciary did not rule over the executive branch.
IV. Lincoln and the Civil War Context
Abraham Lincoln, confronting the Dred Scott v. Sandford (1857) decision, argued that while Court decisions bind the parties to a case, they do not dictate national policy:
- First Inaugural Address (1861):
“The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having to that extent resigned their government into the hands of that eminent tribunal.”
Lincoln respected Court rulings in limited scope but denied the notion that Dred Scott defined the Constitution forever.
V. The 20th Century Rise of Judicial Supremacy
Post–Civil War Developments
- The Court began asserting broader constitutional interpretations in commerce and civil rights cases.
- Precedent hardened around the idea that the Court’s rulings were binding on all levels of government.
Civil Rights Era
- Brown v. Board of Education (1954) held racial segregation unconstitutional. Its moral force and federal enforcement cemented the Court as the “final word.”
- President Eisenhower used troops to enforce Brown in Little Rock (1957), showing executive backing.
This set a new standard: Court rulings would be treated as binding constitutional commands, not mere interpretations.
VI. Modern Expansion of Judicial Supremacy
Key examples of the Court reshaping law and policy:
- Roe v. Wade (1973): Created a national right to abortion.
- Obergefell v. Hodges (2015): Legalized same-sex marriage nationwide.
- Citizens United v. FEC (2010): Redefined campaign finance as protected speech.
- Dobbs v. Jackson (2022): Overturned Roe.
Each of these cases demonstrates the Court effectively setting national policy—without legislation. Critics argue this elevates nine unelected justices above Congress, the President, and the people.
VII. Departmentalism vs. Judicial Supremacy
- Judicial Supremacy: The Court is the final interpreter; its rulings bind all.
- Departmentalism (Jefferson, Jackson, Lincoln): Each branch has equal right and duty to interpret the Constitution.
Departmentalism maintains balance but risks chaos if branches openly defy one another. Judicial supremacy provides stability but risks oligarchy.
VIII. Modern Critiques
- Left-leaning critiques: Court is captured by conservative ideology and unresponsive to democratic will.
- Right-leaning critiques: Court has usurped lawmaking powers and imposed liberal social policies.
- Populist critique (both sides): Nine unelected justices should not decide issues that Congress avoids.
Public trust in the Court has fallen sharply in the 21st century, with polling showing historically low approval after Dobbs (2022).
IX. Rebalancing Options
- Constitutional Amendment: Clarify limits on judicial review.
- Jurisdiction Stripping: Congress can limit the Court’s jurisdiction under Article III.
- Term Limits for Justices: Reduce lifetime judicial entrenchment.
- Revive Departmentalism: Presidents and Congress openly interpret the Constitution independently.
X. Conclusion
The U.S. Constitution is the supreme law of the land. The idea that Supreme Court opinions hold that title is a political invention, not a constitutional command. From Jefferson’s denunciations to Lincoln’s resistance, history is filled with leaders who saw the danger of judicial supremacy.
Today, with polarization and declining trust in institutions, America faces the same question Jefferson posed two centuries ago: Do we live under a Constitution, or under the rulings of nine judges? The answer determines whether sovereignty lies with the people and their representatives, or with an unelected judicial elite.
Appendix: Key Quotes
- Jefferson (1820): “The Constitution… is a mere thing of wax in the hands of the judiciary.”
- Jackson (1832): “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.”
- Lincoln (1861): “The people will have ceased to be their own rulers… resigned their government into the hands of that eminent tribunal.”
Appendix: Timeline of Major Cases and Events Shaping Judicial Supremacy
Early Republic and Foundations
1787 – U.S. Constitution Ratified
- Article VI establishes the Constitution (and laws made in pursuance thereof) as the supreme law of the land.
- No explicit mention of judicial supremacy.
1791 – First Bank of the United States
- Early dispute over implied powers. Hamilton (pro) vs. Jefferson (anti). Congress charters the Bank anyway.
1803 – Marbury v. Madison
- Chief Justice John Marshall establishes judicial review.
- Quote: “It is emphatically the province and duty of the judicial department to say what the law is.”
- This creates the precedent that courts may strike down unconstitutional laws.
Expansion of Federal Power
1819 – McCulloch v. Maryland
- Court upholds Congress’s power to create the Second Bank.
- Marshall: the Necessary and Proper Clause allows implied powers.
- Significance: Strengthened national supremacy, widened scope of implied powers, and bolstered judicial authority.
1824 – Gibbons v. Ogden
- Court broadly interprets the Commerce Clause, expanding federal power.
1832 – Worcester v. Georgia
- Court rules that Georgia laws had no authority in Cherokee territory.
- President Jackson refuses to enforce it, exposing limits of judicial authority when the executive resists.
Antebellum Crisis
1857 – Dred Scott v. Sandford
- Court rules that African Americans cannot be citizens and Congress cannot ban slavery in the territories.
- Seen as judicial overreach; inflames sectional tensions.
- Lincoln later rejects the decision’s authority beyond the specific case.
1861 – Lincoln’s First Inaugural Address
- Rejects judicial supremacy:
“The candid citizen must confess that if the policy of the government… is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers.”
Reconstruction and Early 20th Century
1869 – Texas v. White
- Court rules secession unconstitutional, bolstering the authority of federal institutions after the Civil War.
1896 – Plessy v. Ferguson
- Court upholds racial segregation under “separate but equal.”
- Judicial supremacy entrenches systemic racism for decades.
1913 – Federal Reserve Act
- Congress creates the Federal Reserve under implied constitutional powers. Judicial precedent (McCulloch) provides cover.
1935 – Gold Clause Cases (Norman v. Baltimore & Ohio Railroad, Perry v. United States)
- Court upholds Congress’s sweeping power to regulate monetary policy, even voiding private contracts.
- Judicial blessing of federal financial authority.
Civil Rights and the High Tide of Judicial Supremacy
1954 – Brown v. Board of Education
- Overturns Plessy, declaring school segregation unconstitutional.
- Becomes a defining moment for judicial supremacy as national policy-setter.
1957 – Little Rock Crisis
- President Eisenhower sends troops to enforce Brown.
- Shows judicial decisions backed by executive force become national law in practice.
1973 – Roe v. Wade
- Court creates nationwide abortion rights framework.
- Seen by critics as judicial lawmaking beyond constitutional text.
Late 20th Century – Judicial Policymaking
2000 – Bush v. Gore
- Court halts Florida recount, effectively deciding the presidential election.
- Cemented public view of the Court as political actor.
2010 – Citizens United v. FEC
- Court rules that corporate spending on elections is protected speech.
- Expands First Amendment interpretations, reshaping campaign finance.
21st Century Polarization
2015 – Obergefell v. Hodges
- Court legalizes same-sex marriage nationwide.
- Hailed as a landmark for equality, criticized as judicial overreach bypassing legislatures.
2022 – Dobbs v. Jackson Women’s Health Organization
- Court overturns Roe v. Wade.
- Returns abortion regulation to states, sparking fierce debates over judicial power and legitimacy.
Modern Critiques and Challenges
- Audit the Fed Movement (2000s–present): Efforts to rein in Federal Reserve independence highlight blurred lines between constitutional authority and judicial-accepted precedent.
- Public Trust Decline (2020s): Polling shows trust in the Supreme Court at record lows, suggesting the doctrine of judicial supremacy is being questioned by both left and right.
Concluding Note on the Timeline
From Marbury to Dobbs, the Court has shaped policy more than any other branch by claiming the power to decide constitutional meaning. But moments like Jackson’s defiance, Lincoln’s resistance, and modern political backlash remind us: the Constitution is supreme law. The Court’s supremacy exists only because other branches and the people consent to it.