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Revisiting Judicial Review

Instructive and lively reading from James MacGregor Burns -- up to a point.

By From the October 2009 issue

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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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About the Author

David L. Tubbs is a fellow at the Witherspoon Institute and teaches politics at King's College in New York City.