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Many critics of the Supreme Court contend that the court has abused the power it has assumed. Few, however, question whether the court can properly lay claim to this power in the first place. Indeed, the justices’ authority to have the final word on whether legislation is constitutional is nowhere found in the Constitution. Yet, many of our most serious social, economic, and political problems arise from this assumed power. It is long past time to start reconsidering what the proper constitutional balance between the court, Congress, and the president should be, or how to undo the grave harm the Supreme Court has caused.
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Let’s start with some of the damage the court has done throughout its history – though the following is by no means exhaustive.
In 1883, the Supreme Court ruled that civil rights laws passed in the 1860s and ’70s were unconstitutional because, the justices said, the 13th and 14th Amendments only restricted state government discrimination, not private acts. The decisions effectively crippled these laws, such as one that outlawed lynch mobs, and another that said “All persons… shall have the same right… to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” In 1896, the court validated “separate but equal” facilities that were not, and could never be, equal. From 1978 to the present, justices narrowed and then fully prohibited remedies (“affirmative action”) for past racial discrimination, and eviscerated legislation that protected the franchise for African Americans in states with histories of voter suppression.
Beginning in 1905, the court spent 35 years invalidating laws that restricted child labor, wage, and working-hour regulation. During the New Deal, it banned controls on corporate “race to the bottom” wage and price competition that could prevent recovery from the Great Depression. These rulings from long ago retain influence on contemporary inequality.
More recently, the court has prohibited significant regulation of campaign contributions; and it has authorized partisan gerrymandering that ensures plutocrats’ ability to more effectively target their political spending.
There was a brief period, from about 1937 to 1969, when the court mostly refrained from deepening racial and economic inequality. But to understand why we have a seemingly intractable racial caste system, and a weaker economic safety net and wider population gap in income and wealth than other advanced industrial societies, an important place to look is these last 150 years of judicial authority.
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Whether they like Supreme Court decisions or not, almost all legal experts, including liberals, accept the court’s right to have the last say on the legitimacy of legislation. These authorities argue that (1) while the Constitution makes no mention of such power, the Framers intended it; (2) judicial review was practiced by colonial and state governments prior to the 1787 Constitutional Convention and, assuming this was widely accepted, delegates felt no need to state it; and (3) this power is implied in one constitutional clause and not contradicted by others.
I address each of these claims in turn. But first, it is important to make this distinction: Justices’ right to evaluate a law’s constitutionality does not entail that their opinion is necessarily the last word. The Constitution authorizes three equal branches of the national government; if they were truly balanced, Congress and the president may sometimes voluntarily defer to the court’s opinion and sometimes decline to do so.
Here’s how such deference was originally intended to work.
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Did delegates to the 1787 Constitutional Convention in Philadelphia, as well as other Founders, intend that the Supreme Court have power to rule on the legitimacy of legislation?
Yes, they probably did, but their understanding of judicial review was nothing like how it came to be practiced and is now understood. Following the Convention, states proceeded to ratify the Constitution. To persuade New York’s voters, three prominent advocates, Alexander Hamilton, James Madison, and John Jay wrote a series of essays in 1788, now known as the “Federalist Papers.” Today, supporters of judicial review cite Hamilton’s essay #78 to prove that the Founders intended that a Supreme Court ruling could not be challenged.
But they misread #78. Hamilton supported judicial review but wrote that the court could only prohibit a law that was “contrary to the manifest tenor of the Constitution,” i.e., where there was no room for doubt. He gave two examples of unconstitutional laws that the court should prohibit, each of which was specifically forbidden in the Constitution: criminalizing past conduct that was legal when it was practiced and punishing someone by law without a trial (Article I, Section 9.3: “ex-post-facto” laws and “bills of attainder”). Federalist Paper #78 never states that the court could use its own judgment to outlaw a policy not explicitly banned in the Constitution.
An ally of Alexander Hamilton in the creation of the Federalist party was John Marshall, appointed chief justice in 1801. His 1803 opinion in Marbury v. Madison asserted the court’s right of judicial review. Marshall famously stated that “It is emphatically the province and duty of the Judicial Department to say what the law is.” Yet Marshall’s opinion in Marbury is similar to Hamilton’s in Federalist #78. Specifically,Marshall’s ruling includes illustrations of unconstitutional laws that the court would be bound to overturn because they violate specific bans: in addition to ex post facto laws and bills of attainder, Marbury mentions a law taxing a state’s exports (expressly prohibited by Article I, Section 9.5), and one authorizing a conviction for treason in a trial where only one witness to the treachery testified. The Constitution (Article III, Section 3.1) requires two witnesses for such a conviction, so the court would be obligated to void the law. We can safely presume that Hamilton and Marshall would also expect the court to reject other laws or practices that violated explicit prohibitions. To overrule such laws is almost a mechanical task requiring no independent judgment by justices.
Hamilton also assured New Yorkers that justices would always be “bound down by strict rules and precedents,” so successive courts would have little room for interpretation. And he concluded #78 by calling the Supreme Court the “least dangerous” of the three equal branches, because the president and Congress have as much right as justices to interpret the Constitution. If a president disagrees with a court ruling’s constitutionality, he could refuse to enforce it, and if Congress disagrees it could decline to appropriate or withhold funds required by it; the court, Hamilton wrote, unlike the president and Congress, “has no influence over either the sword or the purse.” Today, or at least prior to the present administration, open defiance of a court decision is considered so far beyond the pale that it might even justify impeachment; but such defiance is what the Founders intended when the president or Congress believed that justices went beyond the Constitution’s literal provisions.
James Madison supported the Constitution as written in 1787 but remained more uncomfortable about reliance on judicial review. At the convention he advocated a different way to ensure that only constitutional laws were passed: a “council of revision,”comprised of justices and the president, to review and approve a law before Congress would be permitted to enact it. Delegates voted it down. In one Federalist Paper (#48), Madison wrote that “none of them [the executive, legislative, and judicial branches] ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.” Also in 1788, Madison wrote that enforcement of a court finding that a law was unconstitutional would make the “Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.”
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Was judicial review practiced by colonial and state governments prior to the Philadelphia Convention, so delegates assumed it was so widely accepted that there was no need to mention it in the Constitution?
This is an even less persuasive claim. Many practices of colonial governments were not imported into the Constitution, so even if judges (“magistrates”) at that time engaged in judicial review, there is no reason to expect that this role would necessarily be part of the Constitution without explicit mention. And judicial review in the colonies was not analogous to what might work in the new republic. Colonial magistrates were not part of an independent third branch of government; they were agents of the king of England, subject to replacement at the king’s discretion and expected to implement his will. That is, they were part of a colony’s executive branch, not of an independent judiciary.
Nor did England have a written constitution. When magistrates ruled that a colonial legislature had acted “unconstitutionally,” they were referring to “natural law” or at most to the few rights of Englishmen included in the Magna Carta of 1215. That’s quite different from judicial adherence to the explicit boundaries that a written constitution is designed to provide.
Further, colonial magistrates disagreed about whether they possessed authority to make even these vague “constitutional” claims. For example, their reaction to the Stamp Act of 1765 differed. The act was a tax imposed by Parliament that required blank paper with an embossed royal seal to be used in legal documents. The paper could only be purchased from a royal salesman. Colonists were so angry, that mobs drove off the king’s stamped-paper purveyors, or forced them to resign, making the papers unavailable. Documents could then not be legal and normal court hearings could not proceed. Magistrates had to decide whether to suspend court and deny justice to litigants, or to proceed without the stamped documents. In some colonies, Virginia, for example, magistrates ruled that the Stamp Act was unconstitutional, because taxation without consent of the governed violated the rights of the king’s subjects. In others, such as South Carolina, magistrates acknowledged that they had no authority to pass on the constitutionality of an English law, but they simply held court anyway because stamps were unavailable and “necessity takes precedence over the law.”
After the Revolution but prior to the Constitutional Convention, state practices were also inconsistent. In North Carolina, judges ruled laws invalid under their state constitution. But New York had a council of revision, on which Madison had modeled his proposal to the Philadelphia delegates.
In short, whatever happened in colonial or state courts before 1787, there is no evidence that all (or most) Philadelphia convention delegates simply assumed that the finality of court judgments was so widely accepted that it need not be stated.
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Even if unstated, was judicial supremacy implied by a specific constitutional clause, and not prohibited by others?
The candidate for this claim is Article VI.2, known as the supremacy clause. It states that “Judges in every State shall be bound by” the federal Constitution and laws, even if their own state laws do not conform to them. But that provision makes no mention of federal judges and cannot be read to imply that federal justices shall be “bound” to pass on the constitutionality of federal laws. True, if justices are to decide whether state legislation comports with the federal constitution, they must have a view of what the federal constitution requires. However, this implication does not include the further claim that they also have the right to impose their view regarding federal laws adopted by Congress.
Article VI.3 goes further, denying any implication of the court’s primacy. It requires all senators, representatives, and members of the executive and judicial branches to take an oath to support the Constitution. Nothing in it suggests that only oaths of a majority of Supreme Court justices should be taken seriously. As elsewhere in the Constitution, the emphasis is on three equal branches, each with the same authority to make judgments of constitutionality.
The Framers did provide specific descriptions of congressional authority. Article I, Section 8.18 states that Congress can “make all Laws which shall be necessary and proper.” The 13th, 14th, and 15th amendments authorized Congress to enforce them with “appropriate legislation.” In its review then, the Supreme Court has no authority to evaluate a law except by judging whether, consistent with their oaths to uphold the Constitution, senators and representatives made a good faith judgment that it was necessary and proper, or appropriate. Justices’ own views of what is necessary and proper, or appropriate, have no relevance.
Chief Justice John Marshall recognized this. After asserting that it was the court’s job to say what the law is, he did not, in 34 years as chief, substitute his policy judgments for those of Congress. In 1816 Congress passed, and President James Madison signed, a law to establish the nation’s second national bank. The state of Maryland sued, calling the bank unconstitutional and objecting to this federalizing of the national economy when the country was no longer at war. In his majority opinion, Marshall upheld the law based on his respect for Congress’ determination that the bank was “necessary and proper.” Marshall thus made clear that his view of the court’s authority was limited, like Hamilton’s and Madison’s.
Before the bank’s charter expired, Congress voted in 1832 to extend it. But President Andrew Jackson was no Federalist. A Democrat, he asserted that the Constitution gave him an equal right to that of Congress to judge a law’s validity. His veto message argued that the second bank was not “necessary and proper” under the Constitution, and he brought it to an end.
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Questioning the finality of court opinions reveals a serious flaw in our Constitution: its failure to explain how, between the equal branches, conflicts regarding a law’s constitutionality should then be resolved. But the point still stands: The court has no power to decide it alone.
None of today’s proposals for court reform resolve this. Limiting justices’ tenures, and other contemporary reformers’ proposals, will not curb judicial overreach. Nor would forward-looking reforms do anything to reverse 150 years of court rulings that have undermined the potential for a democratic and potentially egalitarian society.
Fixing this could take us into Humpty-Dumpty territory. Norms and rules that have been destroyed in less than two years by the current administration, preceded by opportunity annihilated over 150 years by the court, will take at least decades to restore, if at all, piece by piece. As difficult as it may be to imagine, this will require a consensus calling for numerous immediate and explicit amendments to our constitution, perhaps even a second constitutional convention.
We can only hope that subsequent leaders will do a better job than ours have done to define who has the final word.
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[ H/T SCOTUSblog ]
