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Revisiting Judicial Review
Instructive and lively reading from James MacGregor Burns — up to a point.
Packing the Court: The Rise of Judicial Power
and the Coming Crisis of the Supreme
Court
By James MacGregor
Burns
(Penguin Press, 326 pages,
$27.95)
In contemporary legal scholarship, few persons on the left question the legitimacy of judicial review. Despite displeasure with certain rulings, liberals rarely challenge the authority of courts to invalidate statutes and executive actions. Their acceptance of the status quo is easy to understand. Since the 1950s, liberal judges have written their policy preferences into several areas of the law, striking down a large body of legislation relating to school prayer, pornography, contraception, abortion, and homosexuality. Ostensibly, the basis for invalidating these laws is their incompatibility with specific constitutional provisions. But a distinctly liberal style of judicial review has emerged, one that exploits more broadly worded provisions and strips elected representatives of their authority to legislate on highly contested cultural issues. This kind of judicial review knows few limits, and given the current political alignments in Washington, liberals are generally sanguine about the future.
To his credit, the distinguished historian James MacGregor Burns is unafraid to question the platitudes of our day and some widely held notions about progressive or “enlightened” jurisprudence. His new book is both a historical survey and an assessment of the extraordinary power that the Supreme Court of the United States now wields. Burns deems that power illegitimate—the justices of the Supreme Court have become de facto “lawgivers”—and he wants to document its origins. He also considers previous attempts to resist it.
As a work of history, Burns’s book is instructive and lively reading. As a polemic against judicial power, however, it suffers from several biases. His criticisms against the high court, for example, could have easily been extended to the current practice of judicial review by several state supreme courts—especially in the Northeast. His failure to extend the critique suggests something about his goals in writing the book and points to several problems in his scholarship. Saying too little about federalism and competing theories of constitutional interpretation, Burns has not engaged his topic fully.
From the outset, he insists that the Framers never intended for federal courts to invalidate policies by Congress or the president. His evidence? There is no explicit directive or license in Article III of the Constitution.
Yet the lack of an express warrant in Article III did not prevent Alexander Hamilton from defending judicial review. In Federalist No. 78, he ascribed to the judiciary the task of interpreting laws, including the Constitution, which he designated our “fundamental law.” Thus, if Congress passes a law that conflicts with the Constitution, the latter should take precedence. By itself, judicial review does not imply “a superiority of the judicial to the legislative power.” Nor does it imply anything about how the judiciary—the weakest or “least dangerous” branch of government—might induce Congress (or the president) to comply with its decisions. Hamilton recognized noncompliance as a potential problem, but did not propose any remedy for it, perhaps because he could not conceive of one.
Since Burns sees judicial review as incompatible with the Framers’ commitment to republican government, he must explain how it took root. One villain in his account is John Marshall, chief justice of the United States from 1801 to 1835. In Burns’s judgment, Marshall made an audacious power grab in Marbury v. Madison (1803), when the Supreme Court struck down a portion of the Judiciary Act of 1789.
In justifying the decision, Marshall made arguments similar to Hamilton’s in Federalist No. 78. Burns fails to mention the similarities, and he interprets Marshall’s opinion in Marbury as an assertion of judicial supremacy—the view that the Supreme Court enjoys the final or definitive interpretation of the Constitution (vis-à-vis the other branches of government). Other scholars, however, read Marbury less expansively.
In any event, the Supreme Court explicitly asserted judicial supremacy only in the second half of the 20th century. As Burns shows, for much of our history leading politicians argued that each branch of government has an important role in interpreting the Constitution. In Thomas Jefferson’s “departmentalist” theory, each branch had an “equal right” to determine the constitutionality of actions within its own sphere. President Andrew Jackson reputedly goaded the chief justice by remarking, “John Marshall has made his decision; now let him enforce it.” And Abraham Lincoln refused to bow down before the Supreme Court’s infamous decision in Dred Scott v. Sandford (1857), denying that the ruling could be taken as “settled doctrine” for the nation.
Lincoln’s criticisms of Dred Scott proved prescient, as the decision hastened the onset of the Civil War. Following Lincoln’s death, departmentalist theories of constitutional interpretation began to wane, with a corresponding growth of judicial power. During the next few decades, the Supreme Court served the cause of laissez-faire economics in dubious ways.
For Burns, those decades were a dark era in American constitutional history. In cases such as Lochner v. New York (1905), the justices struck down social welfare legislation, including workplace regulations and minimum-wage laws. One instrument for this freewheeling judicial review was the judicially invented right of “liberty of contract.” Facing intense criticism, the Court repudiated “liberty of contract” in West Coast Hotel v. Parrish (1937) and upheld crucial legislation associated with the New Deal.
Burns argues that the decisions in cases such as Dred Scott and Lochner were in some respects predict-able, given the political views of certain presidents. “Packing the court” characterized American politics even during the antebellum era. Presidents sought to influence national politics by nominating men to the Supreme Court who embraced the same political or economic philosophy. This practice continued in the 20th century. Franklin Delano Roo-sevelt’s threat to increase the number of Supreme Court justices—to gain the Court’s approval of the New Deal—was one kind of court packing in response to a different kind by the Republican presidents who preceded him.
In the years since West Coast Hotel v. Parrish, the Supreme Court has held that economic and social welfare legislation must only have some rational basis to be constitutional. But as the subtitle of his book suggests, Burns worries that the Supreme Court under Chief Justice John Roberts may strike down large swaths of “progressive” legislation sponsored by President Barack Obama. Burns may anticipate a replay of the Lochner era, but fretting about this possibility will seem overblown to many readers.
The subtitle merits one other comment. The reference to the “coming” crisis suggests that Burns is not greatly troubled by the workings of the Supreme Court in recent decades. His concluding chapters support this view. Judicial power causes Burns fewer worries when that power is being used to advance a liberal agenda. Accordingly, Burns speaks of the exemplary “leadership” of Chief Justice Earl Warren (1953–1969) and praises the “painstaking handiwork” of Justice Harry Blackmun’s controversial opinion in Roe v. Wade (1973).
Burns might be correct in saying that the Supreme Court has more often used its power to promote conservative ends than liberal ends. But conservative fears cannot be dismissed; “liberal law-giving” is a fact, not a mirage. Nearly everything Burns says at the beginning of his book could be cited by conservatives to help them articulate their position today. Burns’s ardent liberalism thus prevented him from producing a more satisfying critique.
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Vern Crisler| 10.5.09 @ 10:41AM
I've always thought that Marbury v. Madison was a Solomonic decision if there ever was one.
It's interesting that Burns' criticism of the Supreme Court is over the issue of judicial review. Like most liberals, he misses the real problem -- the spurious incorporation theory or theories that have allowed the Court to gain massive power since the 1950s.
Extremely Extreme Extremist| 10.5.09 @ 1:36PM
"Incorporation" is indeed a huge problem. The fact is, however, that granting the Court an exclusive right to judicial review is what has made incorporation interpretations of the 14th Amendment possible--or at least much, much easier. There can be little doubt that had the States retained their right to nullify legislation on Constitutional grounds, they would never have willingly allowed the Bill of Rights to be incorporated against them. It's an interesting question what might have happened given such a scenario, but it is also today quite moot.
M. Davis| 10.5.09 @ 11:16AM
Burns' position on structural issues in constitutionalism is heavily determined by issues of contemporary political policy. In his Deadlock of Democracy, he advocated an imperial presidency at the expense of a Congress which he saw as being unable to adopt a liberal agenda in the early 60's. One of the finest debates on the structure of our constitutional system between a 'liberal' and a 'conservative' was that between Willmoore Kendall and Burns back in 1964. The debate was published at the time in a volume which I believe was entitled Dialogues in Americanism. Kendall did a masterful job in pinning down Burns' underlying motivations. I believe that Kendall's presentation has been subsequently published, though I do not know if the entire debate has been republished. That debate can be found discussed over the intervening years in a number of academic and other scholarly works.
Oldefarte| 10.5.09 @ 12:02PM
You can argue "LEGALISM" all you want to, but the fact remains that legal courts have absconded and usurped the rights of Americans due to their/judges liberal partisanship. There is no rational basis for the legal system's forcing issues/laws upon us because of judge[s] """"OPINIONS"""". Why do we have court trials BY JURIES OF OUR PEERS, and a legislative governmental branch composed of congressional respesentatives ELECTED BY THE PEOPLE; when their decisions/rulings can be overridden by someone's PERSONAL OPINION? Are legislators who make laws that are illegal [according to some judges' opinions] and therefore are those lawmakers corrupt? Is a judges knowledge greater than congressional lawmakers [most of whom are lawyers by trade] and therefore superior; or are these judges more suspetable to coersion and influence from partisan public members/organizations than are a collective body of senators and representatives [who again are elected by 'the people']? The judges and court systems are nothing but corrupt/partisaned players that nullify the will of the American public; instead of doing their jobs [which in essense is the intrepretation of the constitution/law]!!!!!!!!!!!!!!!!!!!!!
Alan Brooks| 10.8.09 @ 12:11AM
Just so.
However, a permissive society is the cause, judicial activism is the symptom. Permissive society says,
"here is the right to have an abortion, now go away!", so judges accordingly write their gobbledygook and pronounce their edicts.
Alan Brooks| 10.18.09 @ 10:33PM
...first comes the determination to advocate (not to mention practice) abortion, then game over.
Doesn't matter Roe v Wade or any other ruling, because first a determination exists to have an abortion then the abortion will be done via everything from abortfacients (sic) to underground ('black market') abortion.
Alan Brooks| 10.18.09 @ 10:45PM
What concerns me is how rulings are almost superfluous. In 1969 the public decided obscenity
was-- is-- the New thing (even though it is thousands of years old).... then rulings were adjusted accordingly.
So, though hard to verbalize, is legalism to be meant in a reverse sense? A sort of reverse legalism? From '69 at least, statutes no longer constrain the public, the public constrains the statutes.
Oldefarte| 10.5.09 @ 12:02PM
You can argue "LEGALISM" all you want to, but the fact remains that legal courts have absconded and usurped the rights of Americans due to their/judges liberal partisanship. There is no rational basis for the legal system's forcing issues/laws upon us because of judge[s] """"OPINIONS"""". Why do we have court trials BY JURIES OF OUR PEERS, and a legislative governmental branch composed of congressional respesentatives ELECTED BY THE PEOPLE; when their decisions/rulings can be overridden by someone's PERSONAL OPINION? Are legislators who make laws that are illegal [according to some judges' opinions] and therefore are those lawmakers corrupt? Is a judges knowledge greater than congressional lawmakers [most of whom are lawyers by trade] and therefore superior; or are these judges more suspetable to coersion and influence from partisan public members/organizations than are a collective body of senators and representatives [who again are elected by 'the people']? The judges and court systems are nothing but corrupt/partisaned players that nullify the will of the American public; instead of doing their jobs [which in essense is the intrepretation of the constitution/law]!!!!!!!!!!!!!!!!!!!!!
L. Ross| 10.5.09 @ 12:59PM
The tragedy of judicial review is that there is no remedy for it. When the court gets things wrong, our elected officials are powerless to put it right. Unfortunately, the only solution that I can see would sound like the plot to a bad, right wing conspiracy film.
tonypal| 10.5.09 @ 11:26PM
That's simply not true. Please read Article III, Section 2 of the Constitution. The US Constitution only establishes one court, the Supreme Court (the "SC"). Further, the Constitution only establishes a few specific instances where the SC has unlimited, or "original jurisdiction."
Because Congress establishes all inferior courts, it also sets the rules with respect to appellate jurisdiction. Cases reach the SC in a limited number of ways. One way is through original jurisdiction, the other through the appellate process.
There is no way the current Congress will deal with the issue of appellate jurisdiction. If anything, they will increase the power of the courts to review simply because it is in the interest of leftists to allow the courts to subvert the legislative process. We all know that most of the nonsense that's gone on in this country since the 1930's is the result of the courts.
What is needed are congressional majorities of serious minded people who understand the limited role of the courts, along with a President who can articulate the need for limitations on judicial review. It will be a long, slow process, but it can be done. Just as leftists have slowly but surely increased the scope of the judiciary far beyond original intent, we conservatives must gear up for the long process of reversing this disastrous trend.
J.C.Eaton| 10.5.09 @ 5:14PM
L.Ross's comment puts one in mind of Mr. Justice Jackson's [ironically, the last Supreme, I believe, who did NOT graduate law school] apothegm: 'We are infallible because we are final, we are not final because we are infallible." Taken to its logical conclusion, the current course of our country leads to total oligarchy. Liberalism and legal positivism leads to more and more of the same until there will be detritus in place of Constitutional republicanism,,, and literally, nothing left to judge.
DaveS| 10.5.09 @ 8:03PM
If Congress passes a law tomorrow - over a veto - that is clearly unconstitutional, is the President required to implement it? The answer is no. Constitutionality is not the purview of only the judiciary - but of all branches of the federal government. Judicial review is implied, though not explicit. The other branches can successfully resist the court - a court that has has much enforcement power as the pope's armies.
DaveS| 10.5.09 @ 8:05PM
The Congress can pre-empt judicial review by simply saying a law is not reviewable (re: L. Ross comments.) The President can simply not play along.
qiaozhi| 10.6.09 @ 1:42AM
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