AP Photo
Black and white fourth graders at St. Martin School, Washington, D.C., dash for the playground at recess, September 17, 1954.
This article is part of a Prospect symposium on judicial review and the separation of powers.
The answer is not to eliminate judicial review. After a disastrous month of Supreme Court rulings, it is tempting to embrace the idea of getting rid of the power of the judiciary to declare laws and executive actions unconstitutional. But I am convinced that would only make things much worse for the most vulnerable in our society. The Court was wrong in overruling Roe v. Wade, but if there had not been the power of judicial review then there would have been no right to abortion at all for the last 49 years.
Ultimately, the question is whether society would be better off without judicial enforcement of the Constitution. Ryan Cooper asserts this, but offers no reason to believe that.
Cooper makes familiar arguments against judicial review. He says that it is a power that never was intended in the Constitution. Whether judicial review was intended by the framers has been debated for over 200 years and is a question that never will be resolved. Although the Constitution does not explicitly mention the authority of courts to declare laws and executive acts unconstitutional, judicial review existed in many states and some believe that it was assumed that the federal courts would have this power too. Alexander Hamilton in Federalist No. 78 outlines why judicial review was intended and essential. But unless one embraces a radical form of originalism, why should we care whether judicial review was intended in 1787? It has existed ever since Marbury v. Madison in 1803 and it should take a compelling case to eliminate what has been a core aspect of American government throughout its history.
Cooper says that judicial review is anti-democratic because it empowers unelected judges to declare unconstitutional the acts of popularly elected officials. Cooper bases his argument on a simplistic and flawed definition of democracy as majority rule. This ignores that the Constitution itself is profoundly anti-democratic and any enforcement of it necessarily also will be anti-majoritarian. Obviously, none of us alive today participated in the drafting or ratification of the Constitution, nor did most of us have ancestors in the country then. The Constitution is enormously difficult to change, requiring two-thirds of both houses of Congress and then three-fourths of the states to approve an amendment. It has been amended only 27 times and only 17 times since the adoption of the Bill of Rights in 1791.
As the Constitution is anti-democratic, so enforcing it, or even complying with it, also is going to be anti-democratic. Many aspects of the Constitution were intentionally anti-majoritarian. Never has it been understood as embodying Cooper’s simplistic definition of democracy as majority rule. Nor does Cooper justify this vision for American democracy.
Ultimately, the question which Cooper rightly raises, though doesn’t really address, is whether American society is better off having an institution—the Supreme Court and the federal judiciary—that is immune from direct majoritarian control to enforce the Constitution.
Despite the awful things the Court has done—and I wrote a book titled The Case Against the Supreme Court (2014)—I remain convinced that Marbury v. Madison was right and that judicial review should exist.
The classic, and I believe the most powerful, argument for judicial review is that it’s needed to enforce the limits of the Constitution. This is the primary argument advanced in Marbury v. Madison to justify constitutional judicial review. Chief Justice John Marshall declared: “Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.” Marshall said that “[t]his doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbiden [sic], such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.”
Most importantly, those without political power have nowhere to turn for protection except the judiciary. There is little incentive for the political process to protect unpopular minorities, such as racial or political minorities. How long would it have been before Southern state legislatures outlawed the segregation of public facilities if not for Brown v. Board of Education? How long would it have taken Congress, dominated by Southerners in key committee chairs, to have acted in this regard?
Or to pick another example, prior to the 1960s, many state legislatures were badly malapportioned with legislative districts of vastly different sizes. The migration of population from rural to urban areas was not accompanied by a redrawing of election districts. The result was that urban districts were much more populous than the rural districts, but had less representation. Malapportioned state legislatures were not about to reapportion themselves so as to decrease the political power of those in office. Every incentive led those who benefited from malapportionment to retain the existing system. It took the Supreme Court, in cases like Baker v. Carr and Reynolds v. Sims, to declare the principle of one person, one vote—that in every elected body with districts the districts must have about the same number of residents. Earl Warren said that these were the most important cases decided during his tenure as chief justice because they dramatically changed the political system to ensure fair representation.
The reality is also that the political process has no incentive to be responsive to the constitutional rights of prisoners or of criminal defendants. Admittedly, the Rehnquist and Roberts Courts have a less-than-stellar record of protecting prisoners’ rights, but I do not think that one could deny that judicial review has dramatically improved prison conditions for countless inmates who would be abandoned by the political process. When is the last time that a legislature adopted a law to expand the rights of prisoners or criminal defendants? How much worse might it be if politicians and prison officials knew that the constitutionality of their actions could not be reviewed by the courts?
Another example where political incentives fail is in situations where state and local governments choose to discriminate against out-of-staters or infringe upon the right to travel. California once adopted a law that said that those moving into the state would, for their first year of residence, receive welfare benefits at the level of the state that they moved from. A woman (referred to in the lawsuit as “Roe”) moved from Mississippi to California. Under the terms of this law, she would receive Mississippi-level welfare benefits even though California had a far higher cost of living. The effect of the California law was to discourage interstate migration. The Supreme Court declared the California law unconstitutional as infringing the right to travel. In a case 30 years earlier, the Court similarly struck down a Pennsylvania law which provided that a person could not receive welfare benefits from the state until the individual had lived in the state a year. There, too, the Court found that the state had violated the right to travel.
These, of course, are just some of the examples where the political process cannot be relied on to comply voluntarily with the Constitution. In all of these areas, it is likely the courts or nothing for enforcing and upholding the Constitution.
Judicial review also is essential to ensure that state and local governments comply with the Constitution. The nature of the federalist structure of American government is that there are 50 states and tens of thousands of local governments that can violate the Constitution. These include not only every town, city, and county, but every school board and zoning commission.
Without judicial review, the Bill of Rights would not be applied to the states. Although most states might voluntarily comply with most of the Bill of Rights, some states certainly would not follow all of its provisions, especially when doing so was expensive or politically unpopular. Many states did not provide free attorneys in felony cases until Gideon v. Wainwright in 1963. In this respect, those who advocate for the elimination of judicial review ignore its benefits in securing state and local compliance with the Constitution. How many local governments would advance religion in all sorts of ways if not for courts enforcing the First Amendment’s prohibition of laws “respecting the establishment of religion”?
There is a larger point often overlooked in the debate over judicial review: Its effects must be measured not only in terms of what is actually decided by the courts, but also in what governments and government officials don’t do because they know that courts would strike down the actions if taken. Eliminating judicial review assumes that there would be much more voluntary compliance with the Constitution if only government officials didn’t have the assurance that courts would strike down unconstitutional acts. But the opposite effect seems at least as plausible.
Cooper and others who would eliminate judicial review make their case as it pertains to the actions of elected officials. Their claim is that the popular political process would be enough to ensure compliance with the Constitution. But eliminating judicial review would do so for the actions of unelected officials as well. Much actual governance in the United States is done by unelected officials: police officers, prison guards, zoning board members, and regulatory agencies at all levels of government. Critics of judicial review stress the desirability of majority rule, but decisions by these officials are not majoritarian in any sense. Even if one could accept trust in the majoritarian process, it seems absurd to say that police officers or prison guards will have compliance with the Constitution at the forefront of their concerns.
I have spent my career as a lawyer largely representing those who would have had no chance in the political system. In the Supreme Court, I argued a case on behalf of a homeless man who was challenging a religious symbol at the Texas State Capitol and another on behalf of a man who received a sentence of 50 years to life for stealing $153 worth of videotapes. In the lower courts, I have represented a Guantanamo detainee, a man seeking asylum after persecution in Mexico, a person sentenced to death for committing a triple murder, and victims of egregious police abuse. I have lost more cases than I have won, but I know for my clients that it is judicial review or nothing.
I am outraged at the Supreme Court’s recent decisions and petrified of what is to come. We must focus on how to change the Court, including expanding its size. We must look to alternatives, in state courts and the political process. We must develop a progressive theory of constitutional law, as the conservatives did for the last 50 years. But focusing on eliminating judicial review is a waste of our time. It is not going to happen, and it would only make things worse.
