Introduction
When people say, “the Supreme Court is the law of the land,” they’re echoing a slogan, It’s not a constitutional fact.
Article VI of the U.S. Constitution is clear: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land.” Nowhere does it say, “the opinions of nine unelected justices are binding scripture.”
Yet in practice, the Court has become just that: the final word, the oracle, the referee in all constitutional disputes. This tension between constitutional supremacy and judicial supremacy has shaped American history from Jefferson to Lincoln to today.
1. The Supremacy Clause as Written
- Article VI, Clause 2 (1787): Declares the Constitution itself, and laws made pursuant to it, as the highest law.
- No mention of the judiciary. No elevation of judicial opinions above the other branches.
- The founders designed a system of co-equal branches, each sworn to uphold the Constitution, not subordinate to one another.
2. Enter Judicial Review (Marbury v. Madison, 1803)
- Chief Justice John Marshall invented judicial review by declaring a law void if it conflicted with the Constitution.
- This was clever politics: the Court claimed a power not explicitly written down, but hard to deny in principle.
- From that point, the Court began carving out a role as the ultimate interpreter, even though nothing in the Constitution gave them “final say.”
3. Jefferson’s Rejection of Judicial Supremacy
- Jefferson feared judicial supremacy would turn into an “oligarchy.” He argued each branch—executive, legislative, and judicial—had the right to interpret the Constitution for itself.
- In an 1820 letter, Jefferson warned: “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 strict constructionist view clashed with Marshall’s expansive reading of implied powers, especially in cases like McCulloch v. Maryland (1819).
4. Jackson and Lincoln Against Judicial Absolutism
- Andrew Jackson ignored the Court in Worcester v. Georgia (1832), allegedly saying, “John Marshall has made his decision; now let him enforce it.” The quote is apocryphal, but the point stands: Jackson didn’t treat the Court’s ruling as the last word.
- Abraham Lincoln, in his First Inaugural (1861), said Court rulings should bind the parties in a case but not “irrevocably fix” national policy. He cited Dred Scott v. Sandford (1857), where the Court ruled African Americans could not be citizens. Lincoln rejected the decision’s broader authority, treating it as a judicial mistake, not the supreme law of the land.
5. The Rise of Judicial Supremacy in the 20th Century
- By the mid-20th century, especially post–World War II, judicial supremacy hardened into convention.
- Brown v. Board of Education (1954) was enforced as binding constitutional law, reshaping civil rights. Whatever one’s view of the outcome, it cemented the Court as final arbiter.
- Presidents and Congresses generally deferred, even when grumbling. The Court’s authority expanded by habit, not constitutional amendment.
6. The Problem of Unelected Power
- The Court today wields immense influence: abortion (Roe v. Wade, Dobbs v. Jackson), same-sex marriage (Obergefell v. Hodges), gun rights (Heller and Bruen), campaign finance (Citizens United), and countless other policy-defining rulings.
- None of these outcomes came from legislation directly. They came from judicial interpretation, binding on the whole nation.
- This makes nine unelected judges—appointed for life—the effective authors of constitutional meaning. Critics see this as aristocracy in robes.
7. Modern Pushback and the “Departmentalism” Argument
- Departmentalism: The idea that each branch interprets the Constitution for itself. Rooted in Jefferson, carried by Lincoln.
- Example: States challenging federal power under “nullification” theories (though historically messy).
- Today, some scholars and politicians argue Congress and the President are not bound to treat Court rulings as universal precedent, only as binding in specific cases.
8. Current Context: Polarization and Court Legitimacy
- Trust in the Court is near historic lows. Decisions like Dobbs (2022) polarized the nation.
- On the right, people complain the Court has been too activist in social policy.
- On the left, critics say the Court is captured by special interests and out of step with popular will.
- Both sides are rediscovering Jefferson’s warning: an unchecked judiciary risks becoming the most dangerous branch.
9. What the Constitution Actually Demands
- The Constitution is supreme. The Court is not the Constitution.
- The Court’s opinions carry weight because the other branches allow them to. The judiciary has no army, no purse—only institutional habit and the compliance of others.
- If Congress or the President took Jefferson’s or Lincoln’s view, they could resist judicial supremacy while still respecting specific rulings in their limited scope.
10. Conclusion
The belief that the Supreme Court is the “supreme law of the land” is a historical and political invention, not a constitutional fact. The Constitution is supreme. The Court is an interpreter, not a sovereign. For most of American history, leaders from Jefferson to Lincoln resisted the idea that nine judges should dictate constitutional meaning for 330 million citizens.
Today, with polarization eroding faith in institutions, the time may be ripe to revisit that debate. Do we want constitutional supremacy, or judicial supremacy? If the Constitution is indeed the supreme law of the land, then Congress, the President, and the people cannot outsource their duty to nine unelected officials.