Illustration by Sarah Angèle Wilson
David Dayen: Introduction
Erwin Chemerinsky: In Defense of Judicial Review
Damon Silvers: The Problem Isn’t Judicial Review; It’s the Court’s Politics
Ryan Cooper: American Government-by-Lawsuit Is a Disaster
INTRODUCTION
BY DAVID DAYEN
A week ago, the Prospect ran a provocative piece from Managing Editor Ryan Cooper called “The Case Against Judicial Review.” It made the argument that the current situation of a deeply powerful, even despotic, Supreme Court was out of step with both our constitutional history and international practice, and it should be reined in, as it has been in the past by presidents ranging from Abraham Lincoln to Franklin Roosevelt. Specifically, Cooper urged a president to argue that Marbury v. Madison was wrongly decided, and to spark a fight that would lead to a narrowed jurisdiction for the Court and an end to judicial supremacy.
We knew this would get some attention, and it did. Any concept in our government with 200 years of history behind it won’t be overturned due to one column. But we thought it was worth starting a conversation. We continue that conversation today.
Two scholars—UC Berkeley School of Law dean Erwin Chemerinsky and former director of policy and special counsel for the AFL-CIO Damon Silvers—offer critical comments on Cooper’s proposal, and alternative visions for what to do about today’s Supreme Court. Cooper responds to their responses.
Policymakers have begun to think about the consequences of an unchecked judicial branch, and possible remedies. The Prospect hopes to add to that debate.
In Defense of Judicial Review
BY ERWIN CHEMERINSKY
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.
Continue reading “In Defense of Judicial Review”
The Problem Isn’t Judicial Review; It’s the Court’s Politics
BY DAMON SILVERS
Ryan Cooper asks us, in response to a Supreme Court that, like an autoimmune disease, has turned on the constitutional democratic republic it is supposed to protect, why do we even have a Supreme Court?
It’s not a new question. As Cooper points out, throughout our history a formidable group of Americans have openly asked the same question—starting with Thomas Jefferson and including Abraham Lincoln.
But Cooper’s piece in certain ways slides by the issues involved here. Because what is involved is the question of what it means to be a constitutional republic. Which, today, is what we are. One of my favorite political lines of recent years is now-U.S. Rep. Jamie Raskin’s statement at a hearing of the Maryland legislature that there is a reason elected officials swear an oath of loyalty TO the Constitution, with their hand ON the Bible, rather than the other way around.
And this is the key to the real rot of the Supreme Court’s recent cases, and, in fact, most of its major cases beginning with Bush v. Gore.
One comes away from reading both Dobbs v. Jackson Women’s Health Organization and West Virginia v. EPA with a powerful sense of a Court majority pursuing a hidden natural-law agenda, one that pays lip service to the Constitution as a kind of holy object, while their actual substantive direction is taken from a pastiche of bigotries and poorly understood religious and political traditions of the distant past. Ultimately, this Court’s judicial philosophy seems to be to enforce these bigotries and prejudgments—as Malcolm X said in a very different context, “by any means necessary.”
Continue reading “The Problem Isn’t Judicial Review; It’s the Court’s Politics”
American Government-by-Lawsuit Is a Disaster
BY RYAN COOPER
I was pleased to read the responses from Damon Silvers and Erwin Chemerinsky to my article proposing the abolition of judicial review. It’s an important, valuable discussion, but I have criticisms of both their arguments.
Silvers is more on my side. He admits that the current Supreme Court is out of control—passing decisions based on shamelessly contradictory reasoning, revealing nothing but lawless conservative will to power—and argues it needs to be reconstructed and thus reined in. So far, all to the good.
His case for judicial review (only after a considerable paring-back of the current Court’s powers) is quasi-spiritual. The “rights and freedoms guaranteed to us by the Constitution as interpreted through our pre–Bush v. Gore legal traditions are what bind us together as a nation,” he claims. “The courts—not just the Supreme Court’s, but the entire federal court system’s powers of judicial review—are what makes the idea of rights have meaning in our system and what makes the United States a single national community.”
This represents a failure of imagination. One could easily imagine a system of rights enforced mostly through the federal bureaucracy that was equally effective at creating a national community. Or simply look abroad. Finland, for instance, is a constitutional republic without anything like American-style judicial review—there is a provision for it in its constitution, but top courts have no formal power to strike down legislation, and by tradition parliament is granted wide deference anyway. Americans are not likely to come out well in a comparison with Finns as to whose rights are more secure, or which community is more bound together.
Continue reading “American Government-by-Lawsuit Is a Disaster”
