federal court injunction requiring him to perform his official duties contrary to his oath, the Court of Appeals below transformed the Chief Justice's oath from an oath to support the constitution as the rule governing his official actions to an oath to support the federal judiciary as the rule governing such actions. Such a claim of judicial supremacy over the Chief Justice's oath does not serve "the rule of law," as the Court of Appeals claimed, but the rule ofjudges. As such, it is a species of judicial idolatry," suitable, perhaps, for the British monarchy, but not for the American constitutional republic.
In the British Commonwealth, officers of the government swear an oath of allegiance to the king or queen, pledging "faithful and ... true allegiance to [ or her] Majesty ...." Promissory Oaths Act 1868, Ch. 72, § 2 (Eng.). The oath of allegiance to the British monarchy is in the nature of an oath of fealty to another human being who stands in the position of lord, whereas the oath of allegiance to the Constitution is an oath of faithfulness to the law that governs a person who has civil power. As Chief Justice John Marshall put it in Marbury, a federal judge's oath to decide cases "agreeably to the Constitution," presupposes that the Constitution—as it is written, not as it is interpreted by judges—is the rule of government even for the Supreme Court. 5 U.S. at 180. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 621 (1856) (Curtis, J., dissenting).
B. The Chief Justice's Oath Serves As A Check And Balance On Federal Judicial Power.
As pointed out by James Madison in Federalist No. 51, a system of separation of powers, accompanied by external checks and balances, is the first essential to establish and maintain the rule of law. Indeed, as Madison observed, the
See Bowman, Congress and the Supreme Court, 25 Pol. Sci. Q. 20, 34 (1910).