As part of our focus this week on the Court and constitutional law, we are publishing today this essay from Jonathan Mitchell. Readers might be surprised at how much his critique of “judicial supremacy” from the right sounds very much like critiques of “judicial supremacy” from some quarters of the left, albeit for different substantive ends:

The Supreme Court of the United States has long asserted interpretive supremacy over the Constitution, and it expects and demands that the other institutions of our government treat its opinions as the final and authoritative exposition of constitutional meaning. This idea is known as “judicial supremacy.” It has enabled the Supreme Court to claim that its constitutional pronouncements bind not only the parties to a case but all government officials. And the Supreme Court tells us that its opinions interpreting the Constitution are themselves the supreme law of the land—akin to the Constitution itself—and that those opinions must be honored and regarded as constitutional law until the Court sees fit to overrule them.

The idea of judicial supremacy has been sharply criticized by legal scholars from across the ideological spectrum. And for good reason. There is nothing in the language of the Constitution that provides or even suggests that the Supreme Court’s interpretations of the Constitution are binding on non-parties to a lawsuit, or that the political branches are forbidden to depart from the Supreme Court’s pronouncements when exercising their own constitutional prerogatives. Article III of the Constitution merely empowers the Supreme Court to resolve “cases” or “controversies,” which indicates that the Court’s judgments will bind the parties to a lawsuit but in no way suggests that the opinions explaining those judgments have generative force or become the supreme law of the land whenever they interpret a constitutional provision. More importantly, the principle of popular sovereignty on which our nation was founded would favor a regime in which disputed issues of constitutional meaning are ultimately resolved by a representative and politically accountable institution such as Congress, rather than an unelected and unaccountable committee of judges….

Yet we are also witnessing a resurgence of efforts to challenge judicial supremacy—from both sides of the political aisle. In 2021, Texas enacted SB 8, which outlawed abortion after approximately six weeks of pregnancy, even though the Supreme Court had not yet overruled its opinion in Roe v. Wade that had declared abortion to be a constitutional right. Texas structured this law in a manner that made it impossible for abortion providers to bring pre-enforcement lawsuits challenging the constitutionality of the statute, so the law took effect despite its incompatibility with Roe. This was a direct challenge not only to Roe but also to the Supreme Court’s claims to interpretive supremacy over the Constitution, as Texas implemented an abortion ban that rejected Roe’s interpretation of the Constitution and prevented the federal judiciary from doing anything to stop it.

In 2024, Senator Schumer introduced the No Kings Act, which declared that the Supreme Court had erred when it awarded presidents immunity from criminal prosecution in Trump v. United States, instructed the lower federal courts to disregard the Supreme Court’s opinion in Trump, and stripped the Supreme Court of appellate jurisdiction to consider any constitutional challenges to the proposed Act. The bill was not enacted, but it shows that congressional leaders are becoming increasingly willing to use their powers over the Supreme Court’s jurisdiction to counteract opinions that they regard as poorly reasoned or misguided.

Most of the public hand-wringing over the state of American democracy has focused on the behavior of President Trump. But supporters of democratic governance should also be willing to challenge the imperious attitudes of the Supreme Court. For too long, the political branches have responded with passivity and acquiescence in response to the Court’s self-proclaimed authority to render constitutional pronouncements with universal binding effect. The success of SB 8 and the introduction of the No Kings Act may be auguring a new era in which other institutions of our government use their powers to challenge or undermine the Supreme Court’s interpretations of the Constitution. One need not agree with the constitutional interpretations embodied in SB 8 or the No Kings Act to applaud the willingness of politically accountable leaders to challenge the Supreme Court’s purported monopoly on constitutional interpretation. Those who believe in democracy should support a role for democratic institutions in interpreting our fundamental charter of government, rather than relegating them to passive receptacles of the Supreme Court’s diktats.