Thoughts on Judicial Review
So I’ve written a couple of posts on the blog that seem targeted toward those with legal educations. In an effort to appeal to a larger audience, I’m going to try to re-articulate my legal posts so that those without law school experience can understand and hopefully appreciate them. It’s probable that I will fail in all of this but I guess it’s worth a shot.
Most people probably remember the concepts of separation of powers and checks and balances from middle school social studies. I remember learning that the genius of the American idea was to implement the tripartite system of government: the legislative branch makes the laws, the executive branch executes the laws, and the judicial branch interprets the laws. Fortunately for us back then, we pretty much just had to memorize which branch did what and guess appropriately on a multiple choice question to demonstrate our knowledge of how the government works.
Yet, most people take for granted the idea that one of the Supreme Court’s jobs is to determine whether what the executive and legislative branches do are consistent with the Constitution. This is perhaps the most crucial component to checks and balances, as an independent judiciary that can keep the federal government within its rightful bounds is essential if government is to be truly limited. But many might be unaware that this fundamental check is nowhere in the United States Constitution. Its existence stems not from our constitutional text but from arguably the greatest power grab in American history – the Supreme Court’s 1803 decision in Marbury v. Madison.
Article III of the Constitution articulates “the judicial power of the United States” by vesting it in “one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.” But the remainder of Article III is primarily devoted to carefully articulating those classes of cases that the American judicial power as a whole can hear. In all, a list of 9 categories of cases is given, over which 3 the Court is to have original jurisdiction (meaning that the case goes directly to the Supreme Court) and the other 6 appellate jurisdiction (meaning the power to hear the case on appeal only). The primary purpose of this is to ensure that the federal court system would be the exception rather than the rule. In other words, state courts are designed to be courts of general jurisdiction and can hear any types of cases but the federal courts are only to hear certain and limited categories of cases.
After the Constitution was ratified, Congress, pursuant to Article III, immediately passed the Judiciary Act of 1789 which created a lower federal court system. The Act also gave the Supreme Court an additional category of cases over which it was to have original jurisdiction – petitions for writs of mandamus (a petition for a writ of mandamus is basically asking the court to compel a lower court or public official to act in accordance with the law when they have failed to do so). This category was not one of the 3 articulated categories in the Constitution over which the Court was to have original jurisdiction.
Enter Chief Justice John Marshall and Marbury v. Madison. The Court was faced with a fundamental conflict: the Constitution said one thing and Congress said something else. Who was right? More importantly, who was to decide who was right?
Marshall authoritatively answered both of these questions. He concluded that, since the Constitution provided an exhaustive list of cases over which the Court could exercise original jurisdiction, Congress had impermissibly added petitions for writs of mandamus to that list. It essentially had given the Court more power than it had the right to. So, by saying that Congress was wrong to give the Court additional power, Marshall actually seized even more power for the Court – the ability to say that what Congress does is inconsistent with the Constitution and thus void. It is this decision alone that is the source of the Court’s power to strike down government action as unconstitutional – a.k.a. judicial review. Again, nothing in the Constitution says that the Court can do this.
Marshall justified the decision by writing, “It is emphatically the province and duty of the judicial department to say what the law is.” But why is it the Supreme Court’s duty to strike down laws it determines to be unconstitutional? Why can’t Congress decide whether the laws it passes are constitutional and the Court just apply those laws to particular disputes? Is the Supreme Court institutionally stronger to determine a law’s constitutionality or is Congress just as capable?
The answer to these questions are likely very much ingrained in our understanding of checks and balances. Perhaps it’s hard to imagine a Supreme Court without this historic power of judicial review. But there is, and has long been, a movement to abolish judicial review and to give Congress (and the President as signor) the final word on the constitutionality of their own laws. There are, after all, 535 members of Congress and the process through which a bill becomes law includes a vote by each of these representatives who are elected by and accountable to the people. Moreover, the President, speaking for the executive branch, must sign a bill into law (unless he vetoes it and is then overridden by Congress), so a law is generally decided by two out of the three branches of the federal government.
Does it bother anybody that 9 unelected, life-tenured judges have the power to strike down laws that are passed by our elected representatives? There certainly are a ton of good answers to this question but it nonetheless seems like a conversation worth having.
