Judicial Review: A Necessary Means of Counter-Majoritarianism
Written for PSCI 1111 at Vanderbilt University on October 1, 2019.
The widely accepted basis of a working democratic republic is this: that its citizens are governed by laws and not men. In other words, a just government is one steered by predictable reason, not by human caprice and passion. But such belief is founded on the premise that enacted laws are absolutely fair and adheres to the social contract, which in the United States of America is the Constitution. This premise, as our own history has shown, is not always true. It is in these cases in which enacted laws are counter to the supreme will of the people that judicial review, the American expression of judicial oversight, comes into play. The establishment of judicial review has been regarded by historians and scholars as a shrewd and foresightful maneuver by the fourth Chief Justice John Marshall. Critics, however, decry Chief Justice Marshall’s blatant and unwarranted expansion of the judicial branch’s influence virtually out of thin air. In this paper, I will argue that, although not expressly given by the Constitution, judicial review is a necessary power of the Supreme Court because it is an effective channel of nonviolent counter-majoritarianism that ensures the balance of power in our democracy. To prove my argument, I will first examine the Supreme Court’s role and the origin of judicial review. Then, I will tackle common criticisms against judicial review and explain why they are, albeit admirable, unsound.
A Living Constitution
Article III of the Constitution vests the “judicial power” upon the Supreme Court and the lower courts that Congress may establish (U.S. Const. art. III §1.). It does not further explicate the definition or the extent of this judicial power. Despite outlining precisely the tenure of federal judges, the jurisdiction of different cases, and the conviction and arrangement of treason, when it comes to how the courts should actually function, the language used in Article III is terse and broad in regards to interpretation. The Congress, therefore, possesses a great deal of discretion in determining the courts’ operations. Indeed, in the country’s early years, the Court’s standing is generally viewed as one of inferiority to the legislative and the executive branches.
Although the explicit role of the Supreme Court is to interpret the law, it also has a much more implicit yet vital duty—“to breathe continuing life into the Constitution” (Trachtman 2016, 2). In essence, the Court not only needs to be able to interpret the law, it needs to interpret them within the contemporary social, political, and economic context so that the cornerstone of our democracy—the Constitution—does not become obsolete and irrelevant. For when a law fails to resonate with the people it governs, calls for repeal and dismissal will certainly arise. When such objection gains so much momentum—as it usually does in turning points of history, like the antebellum era and the rise of the internet—it becomes dangerous to remain in the status quo; this is when a society turns unstable. The judicial power of the Court should thus be utilized to ensure a predictable government in the face of changing statutes and circumstances. In order to achieve this, however, the Court had to first cast off its status as a second-class branch of government, otherwise its judgment is nothing but mere words.
But the Constitution itself does not expressly grant the Court any leverage against the other two branches of the federal government. While the Constitution was supreme and paramount from the beginning of our nation, the Supreme Court’s interpretation of it was not— until its own decision created this prerogative of judicial supremacy (Trachtman 2016, 21).
The Birth of Judicial Review
The Supreme Court created the right to “judicial review,” which allows the Court to determine acts of Congress and the President void if it is contrary to the Constitution, through the 1803 case of Marbury v. Madison, 5 U.S. 137 (1803).
Having lost to Democratic-Republican Thomas Jefferson in the 1800 presidential election, incumbent John Adams sought to imbue Federalist influence to the largest extent possible before he handed the country to his political enemy. Adams appointed sixteen circuit judges and forty-two justices of peace just before he stepped out of office. Marbury, one of the newly appointed justices of peace, did not receive his commission due to “a last-minute administrative mix-up as Adams left and Jefferson arrived” (Trachtman 2016, 22). Denied of the delivery of his commission, Marbury filed a suit against James Madison, Jefferson’s secretary of state, in the Supreme Court on the grounds that the congressionally enacted Judiciary Act of 1789 authorized a case like Marbury’s to be granted original jurisdiction in the Supreme Court.
By sympathizing with Marbury’s grievance but declaring the Court ineligible to redress this grievance due to the unconstitutionality of the Judiciary Act of 1789, Chief Justice John Marshall dodged a direct confrontation with the Executive and established definitively the Court’s right to judicial review, which continues to serve as an effective mechanism of checks and balances in our democracy.
The Criticism of Judicial Review
A respectable critique of Chief Justice Marshall’s creation of judicial review is that it is counteractive to the pursuit of liberty when an unelected body of justices can simply strike down a statute passed by an elected body of representatives. In this manner, the Court appears to be brazenly exercising immense political power.
As Trachtman noted, however, “the Court depends on the will of the other branches of government, usually the president, to carry out its decisions” (Trachtman 2016, 12). Having its moral authority—“the only authority the Court ultimately has”—derive from the consensual “respect for the highest court’s interpretation of the Constitution,” the Supreme Court’s execution power is limited (Trachtman 2016, 12). The criticism of judicial tyranny as the critics fear is thus a groundless accusation, for tyranny is nonexistent without the power to execute its despotic thoughts. In addition, though it is true that the justices are unelected, to actually sit behind the bench, appointed justices have to be confirmed by the elected legislative body whereof the composition is subject to change according to the will of the people. Moreover, because they are appointed for life once confirmed and not constantly pressured to build their popularity, “Supreme Court justices are particularly well positioned to rise above polls and politics and focus on what is constitutional” (Trachtman 2016, 16), as opposed to what is popular.
The most crucial and necessary check that judicial review offers the Court, however, is not a direct check on the Legislative, or a direct check on the Executive, but an indirect check on the people and their passion. Should judicial review cease to exist, “Congress, or a state legislature, or a local borough council would only be restrained by the fear of losing the next election” (Trachtman 2016, 12). In a government like ours that largely favors the majority, mankind’s predisposition to aggrandizing their self-interest and act on their passion, left unchecked, guarantees the destruction of minority rights, often through the passing of arbitrary statutes and laws. It is thus only reasonable that before a government of law and order can arise, excessive passions of the majority need to be contained.
In a government without a common judgment to appeal to, when the encroachment on their rights become so oppressive and prevalent, the minority has but the choice to consult means of violence resistance. Look at our nation’s own history as an example. If it was not for the oppression of taxation without representation that colonial Americans felt was unjust and the lack of effective means to redress their grievances, they might not have been impelled to declare a revolution. However, with judicial review, there is a nonviolent channel of petitioning against the perceived injustice of a statute passed by a majority-elected legislative body. In this case, government officials will heed their actions as they know that, anytime, “a single citizens armed with a creative lawyer can invoke the power of the judiciary to measure their laws and decisions against constitutional standards” (Trachtman 2016, 25). Judicial review is the Judiciary’s means of containing the excessive passions of the majority in the Legislative and the Executive should the occasion call for it.
The Supreme Court equipped with the power of judicial review is therefore our democracy’s effective and necessary nonviolent medium of counter-majoritarianism.
The Cost of Judicial Review
As Trachtman puts it, “the power to decide takes with it the power to decide wrongly” (Trachtman 2016, 21). The judges are also humans and, though to a lesser degree, invariably subjected to partiality. It would be unjust to omit that the consequences of judicial review’s establishment are multifaceted and prominent in both righteous and occasionally inglorious ways.
One of the most notable examples of a wrong decision in the name of judicial review was Dred Scott v. Sanford, 60 U.S. 393 (1856). Chief Justice Roger Taney judged that people of African descent are merely property of their owners because they “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution” (Dred Scott v. Sanford, 60 U.S. 393, 404, (1856)). And, instead of leaving the rationale at that, Chief Justice Taney goes one step too far and concludes, “the act of Congress which prohibited a citizen from holding and owning property of this kind … is not warranted by the Constitution, and is therefore void” (Dred Scott v. Sanford, 60 U.S. 393, 452, (1856)), thereby invalidating the Missouri Compromise and the freedom of black people even if they were living in free states.
To that end, the Court approved of slavery in all United States territories and crippled the federal government’s authority to regulate slavery. The tip of the balance of power appears to tilt towards the Judiciary.
The Dred Scott decision, many will argue, is an adequate example of why judicial review should not be an accepted legal principle. This decision arguably exacerbated the already precarious mutual animus between the North and the South due to quarrels over slavery and state rights in the antebellum era. The danger of a partial and corrupt judicial interpretation, especially at the Supreme Court’s level, is indeed colossal. But the danger of not having a supreme Judicial capable of interpreting the constitutionality of constantly enacted and ever-changing laws is even greater. In Chief Justice Marshall’s own words, if the Court does not have the ability to deem an enacted law repugnant to the Constitution, “then written constitutions are absurd attempts … to limit a power, in its own nature illimitable” (Marbury v. Madison, 5 U.S. 137, 177 (1803)). If we were to live in a democracy with an illimitable Legislative or Executive, it might as well be no democracy at all, for there lacks a nonviolent means to contain these two branches’ passions, and the minority would be constantly faced with no choice but to resist violently.
Mistakes in a government of men and not angels are bound to happen. As concurred by President Lincoln in the Lincoln-Douglas debate, however, despite how erroneous a judicial decision is, “it must be respected until the Supreme Court says otherwise,” because “[m]ore than this would be revolution” (Trachtman 2016, 33). This inevitability of human error, of course, does not sanction the Court from its misdeeds. But to remain a government of law and reason, not of passion, dissenters ought to seek redress through constitutional means. Judicial review guarantees that these means are always valid regardless of what political party with what agenda occupies our governing body’s majority.
A Government of Laws
While other mechanisms of balance of power are also crucial to our government’s reliable functioning, judicial review is the necessary hinge that links them all—like a belt buckle, without which the belt is but a strap of leather. Despite its absence in the Constitution, judicial review’s absence in practice would be destructive to the people’s security of life and liberty. Judicial review serves as a necessary, nonviolent tunnel of remedy for the dissidents. It safeguards the balance of power which makes our country, “[n]o matter how difficult the circumstances, no matter how entrenched the personal disagreements … a government of laws, not men” (Trachtman 2016, 21). Chief Justice Marshall’s legacy is one that we dare not forget.
References
Marshall, J. & Supreme Court Of The United States. (1803) U.S. Reports: Marbury v. Madison, 5 U.S. 1 Cranch 137. [Periodical] Retrieved from the Library of Congress, https://www.loc.gov/item/usrep005137/.
Taney, R. B. & Supreme Court Of The United States. (1856) U.S. Reports: Dred Scott v. Sanford, 60 U.S. 19 How. 393. [Periodical] Retrieved from the Library of Congress, https://www.loc.gov/item/usrep060393a/.
Trachtman, M. G. (2016). Supremes’ Greatest Hits: The 44 Supreme Court Cases that Most Directly Affect Your Life (2nd ed.). Sterling Publishing. U.S. Const. art. III, § 1.