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Many perspectives, 1 simple etiquette

OPINION: Forget Court Packing; We Need to Talk About Limiting Judicial Review

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Created: 28 October, 2020
Updated: 14 August, 2022
8 min read

Joe Biden, if he wins the presidency, has promised to create a bipartisan commission to recommend changes to the “out of whack” American court system. The commission’s prime focus will almost certainly be the Supreme Court, which to Democrats is about as out of whack as it can get.

The commission will have no shortage of reform proposals from which to choose, from expanding the number of justices to requiring super majorities for certain cases to term limits. Although some also have suggested limiting jurisdiction, the most effective reform, the one that makes the most sense and is most in keeping with the Founders’ intentions, has rarely been mentioned: limiting judicial review, the power by which the Court can void a law that it decides is unconstitutional.

Judicial review does not appear in the Constitution. As former Justice Antonin Scalia admitted, “The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means…We made it up.” But he added, “We made it up very sensibly, because what we said was, ‘Look, a Constitution is a law, it’s a sort of super-law…and what the law means is the job of the courts.’”

To buttress his argument that constitutional oversight is an obvious and universally accepted facet of the Supreme Court’s role, Justice Scalia cited Chief Justice John Marshall’s seminal opinion in the 1803 case of Marbury v. Madison. Marbury, the lead case in virtually every Constitutional Law textbook, not only established judicial review but also drastically altered the separation of powers that had emerged from the Constitutional Convention sixteen years before.

Ironically, Marbury stemmed from a court-packing scheme hatched by John Adams and Marshall himself, then Adams’s secretary of state. In the final days of his presidency, Adams appointed a slew of new federal judges and justices of the peace, one of whom was a minor functionary named William Marbury. (Adams also appointed Marshall as chief justice.) Although most of these commissions were “signed, sealed, and delivered” before the changeover in administrations, a number, including Marbury’s, were not.

James Madison was incoming president’s Thomas Jefferson’s Secretary of State. Madison found the commissions, signed and sealed, on his desk when he assumed the office. He refused to give them up and Marbury sued. To compel Madison to deliver his commission, Marbury asked the Supreme Court to issue a writ of mandamus, using Section 13 of the Judiciary Act of 1789, which gave the Court that power.

Marshall was in a bind. If he ruled for his fellow Federalist Marbury, Jefferson would simply ignore him. If he ruled for Jefferson, he abdicated his and the Court’s power.

With inspired misdirection, Marshall ruled that Madison and Jefferson were indeed required to deliver Marbury’s commission. Alas, Marbury had chosen to ask the Supreme Court directly for the writ, whereas Article III, which stated, “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact,” restricted mandamus to appellate jurisdiction. Section 13, therefore, conflicted with the Constitution and must be struck down. Poor Marbury would not get his commission after all.  Although Marshall’s opinion ran to ten thousand words, he conveniently left off the end of that sentence in Article III, which read, “with such exceptions, and under such regulations as the Congress shall make.”  As such, it seemed Section 13 was constitutional after all.

Now Jefferson was in a bind. If he did nothing, he tacitly granted power to the Federalist Supreme Court to oversee the constitutionality of legislative acts. The only way to avoid setting such a precedent was to deliver commissions to Marbury and the others and thereby undermine his authority throughout the Union.

Jefferson chose to continue to refuse the commissions and the right to interpret the law, to say “what the Constitution means,” passed from the legislature to the judiciary. Although the Supreme Court would not again strike down a federal statute for another fifty-four years, in another inflammatory case—Dred Scott v. Sandford—the power of constitutional oversight is now the Supreme Court’s most potent weapon. 

If Marbury was a political decision, then, incorrectly decided, judicial review goes along with it.  As does textualism. Scalia’s protests notwithstanding, it becomes not a philosophy on how to view the law, but rather a rationalization that allows its proponents to grab for political power.

Unless, of course, as many constitutional scholars contend, judicial review was implicit in the Constitution all along, and Marshall was merely giving body to that view. A number of the delegates, proponents insist, made statements in the convention that favored judicial review or considered it understood in the judicial function. In addition, various state provisions, especially in Virginia and Massachusetts, seem to indicate that judicial review, as an enunciation of separation of powers, was already an integral part of state government and could therefore logically be expected to be extended to any national system.

Neither of these assertions survive scrutiny. Although the Virginia Declaration of Rights, in Article V, seemed to give the courts a role in maintaining separation of powers, Article VII states, “All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” The Massachusetts constitution also clearly noted, “The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”

At the convention, while judicial oversight was mentioned by a number of delegates in the course of the debates,” judicial review” in the modern sense was never discussed at all. The power of the judiciary to overturn an act of the legislature was raised almost exclusively with regard to participation in a “council of revision,” in which the Supreme Court, with the president, would essentially sign off on every congressional act. But granting the Court a limited veto power over Congress is not at all the same thing as ceding it final authority to “say what the Constitution means.” Vetoes can, after all, be overridden by the same body that passed the law, whereas once declared unconstitutional, a law can only be reinstated by amendment.

In fact, the notion of one branch being able to frustrate the other two was clearly anathema to many of the delegates.  Roger Sherman, echoing Elbridge Gerry and Benjamin Franklin, noted that he was “agst. enabling any one man to stop the will of the whole.”  Nathaniel Gorham of Massachusetts noted that “all agree that a check on the Legislature is necessary,” but he was firmly against “admitting the Judges to share in it.”

With no evidence to demonstrate that the delegates in Philadelphia considered judicial review an obvious and accepted power of the Supreme Court, it is impossible to extrapolate such an awesome and virtually unchecked power from Article III. If anything, the evidence that judicial review was specifically omitted from Article III has more weight. As Leonard Levy put it, “the Framers did not mean for the Supreme Court to have the authority to void acts of Congress.”

Some of history’s most respected legal theorists agree. William Blackstone, the patron saint of conservative justices everywhere wrote:

“If parliament will positively enact an unreasonable thing, there is no power in the ordinary forms of the constitution vested with authority to control it. The judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive to all government.” Montesquieu also rejected both judicial review and an active judiciary. “National judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor.”

There is no doubt that neither Marshall’s dubious reasoning, nor the absence of support at the Constitutional Convention, nor lack of ballast from legal philosophers will deter justices, especially conservative justices, from maintaining a vice grip on constitutional oversight. If that goes, the power to issue rulings such as Citizens United and Shelby County v Holder goes along with it.

Returning, however, to the phrase “with such exceptions, and under such regulations as the Congress shall make,” that Marshall omitted, it becomes clear that Congress and the president can loosen that grip.

If the Court loses the right to void laws, some would point out, what about equal rights cases, such Brown v. Board of Education or Roe v. Wade?  But those are cases in which states violated rights guaranteed in the federal constitution, the “supreme law of the land.” That is altogether different than making the Supreme Court superior to the other two branches of the federal government, and reform legislation can easily be drafted to make that distinction clear.

Denying the Court the ability to overturn an obnoxious federal law is not a perfect fix. There isn’t one. This is a question of balance, not absolutes. But where is it best to place final authority—with people who are accountable to voters every two, four, or six years, or with lifetime appointees accountable to no one?