Marbury Ascendant: The Rehnquist Court and the Power to 'Say What the Law is'

Abstract

Marbury posited that it is "emphatically" the power of the judiciary to "say what the law is." This Article focuses on two areas in which the Rehnquist Court has dramatically advanced a judicial supremacy model for interpreting legal meaning. The first is the Court's newly restrictive interpretation of Congress' power under Section 5 of the Fourteenth Amendment to "enforce" the guarantees set forth in Section 1 of the amendment. The second development is the Court's diminished deference to agency interpretations of law under the Mead-Christensen doctrine. Because commentators have generally tended to address the recent spate of Section 5 precedents as record-centric intrusions on legislative fact-finding authority, rather than bold assertions of interpretive supremacy, the connection between these parallel developments has been missed.

This Article links the Section 5 cases and the Mead-Christensen doctrine as parallel manifestations of the ascendancy of judicial power under the Rehnquist Court. The Mead-Christensen model diminishes, yet does not wholly foreclose, judicial deference to legal interpretations by other branches. Conceptualizing the Section 5 precedents as a struggle over interpretive supremacy rather than institutional fact-finding, the Article proposes that the Court apply the Mead-Christensen model for reviewing agency interpretations of law to Congress' exercise of the Section 5 enforcement power. Application of the agency model to exercises of the Section 5 power would preserve the Court's ability to render definitive constitutional interpretations, while at the same time preserving, in instances where the Court has not plainly foreclosed alternative interpretations, a sphere of legislative enforcement and interpretation that is entitled to judicial "respect," insofar as any particular enactment has the "power to persuade." In short, the model would allow for a true sharing of the Section 5 power in some circumstances, as is contemplated by the constitutional text, while rejecting either judicial supremacy or wholesale deference to legislative enforcement decisions.

JEL Classification: K19, K39