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Why should the unelected Supreme Court get the final say about our laws?

MinnPost illustration by Jaime Anderson

One in a series of articles. You can read the whole series here.

In the previous installment, I committed major (but scrupulously factual) sacrilege in suggesting that Chief Justice John Marshall’s ruling in Marbury v. Madison — establishing the power of the Supreme Court to strike down acts of Congress — was a cesspool of partisanship and what conservatives would call judicial activism. It was. And yet this case is one of the foundation stones of the mythic U.S. Constitution.

It strikes me that conservatives especially, who sometimes insist that no federal power exists except those powers that are explicitly enumerated in the Constitution (which the power of judicial supremacy is not), should be troubled by this case.

Nonetheless, I promised to begin this installment with Marshall’s rationale from his ruling in the case in which he asserted the power of judicial review, sometimes called judicial supremacy, which means that court has the final say on issues of constitutionality. It went thus:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

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 [e.g., the statute or treaty]. This doctrine would subvert the very foundation of all written constitutions.

It’s an elegant argument. The opening line of that passage can be quoted from memory by most judges and maybe most lawyers. It’s compelling. If laws that violate the Constitution can be passed and enforced, then what good is the Constitution?

Another question

But it finesses another question. If one presumes that the Congress that passed a law and the president who signed (even if they are not the authors of the Constitution) believe the law to be constitutional, why should the decision of unelected judges be the one that counts?

Looking back centuries later, it seems the Marbury case settled that question, but it really didn’t. If I have intrigued you with the notion that perhaps the doctrine of judicial supremacy is not quite as clear, constitutional and unquestionable as usually presented, perhaps you will enjoy knowing that included among the skeptics of the doctrine were such American demigods as Thomas Jefferson and Abraham Lincoln. 

Imperfect Union: The Constitutional roots of the mess we're inIn 1804, Jefferson wrote: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” 

His own view was that: “Nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them.”

Later, in retirement in1819, he wrote that: “[T]he Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

“If this opinion [he wrote in the same 1819 letter] be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation.”

Well, it’s only Jefferson, but he’s entitled to his opinion.

Interestingly, after Marbury the Supreme Court did not strike down another federal law for more than 50 years, after even young John Marshall had grown old and passed from the scene.

Next big decision

That next act of judicial supremacy was also highly controversial. It came in the form of the infamous pro-slavery Dred Scott decision of 1857, which is justifiably considered one of the worst in Supreme Court history. The court struck down the congressional measure known as the Missouri Compromise that had modulated the conflict between pro- and anti-slavery elements in the prior period.

Abraham Lincoln, a brilliant lawyer and a harsh critic of the Dred Scott decision, came to a conclusion similar to Jefferson’s, that while the Supreme Court had the final word on who was the winner of a particular lawsuit, it could not necessarily impose an interpretation of the Constitution with which the members of the other branches disagreed.

Why should the unelected Supreme Court get the final say about our laws?
MinnPost illustration by Jaime Anderson

In his first inaugural address (1861), referring to the constitutional questions that were then tearing the republic asunder, Lincoln said:

 I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. Nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government [by which Lincoln means the executive and legislative branches]…

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

The history of judicial review is full of awkward surprises, and dissenting testimony from some of the most beloved figures of U.S. history, but I would say the controversy has mostly disappeared.

Most Americans accept that the Supreme Court has the “supreme” final word on the meaning of the Constitution. But We the People are getting kind of cranky about it.

As I mentioned a few installments back, the approval ratings of the Supreme Court is setting record lows, and a large portion of Americans think partisanship and political ideology affect the court’s rulings more than some neutral legal analysis (which, if you think about it, sort of undermines the basic premise for allowing the least democratic branch to trump the policy prescriptions of the elected branches).

Of course, much as the myth that binds us may require us to believe it, the Supreme Court is not really a politics-free zone. After all, the justices are nominated by the president and confirmed by the Senate. The perception that the nominations and confirmations have become increasingly partisan, ideological and political is one of the perceptions undermining the myth. That’s where the next installment of this never-ending rant against all that decent Americans hold dear will pick up.

Comments (8)

  1. Submitted by Tim Walker on 11/19/2012 - 08:36 am.

    Yes, but …

    What’s the alternative to the idea that the U.S. Supreme Court has the final say over issues of constitutionality?

    What if Congress passes laws that are clearly unconstitutional, and the President signs them. Maybe it’s a law completely banning gun ownership by private citizens, or maybe it’s a law that eliminates due process, or eliminates the prohibition of double jeopardy, or establishes a state religion.

    The Legislative and the Executive branches swear up and down that these are all allowed under the Constitution, but clearly they are not.

    What then? Who steps in and says “You can’t do that!”? Marbury v. Madison say that it’s the U.S. Supreme Court with the power, and duty, to say that.

    Imperfect as it is, I can’t think of another way to prevent the Legislative and Executive branches from taking it upon themselves to be the ones to decide constitutionality.

    Will there be abuses of this judicial power? Of course. It’s happened in the past and will undoubtedly happen again. It happened in my lifetime, in Bush v. Gore, which made me positively sick. But that judicial check on the power of the other two branches is still needed.

    So, I ask again … what’s a better alternative?

    • Submitted by Rachel Kahler on 11/19/2012 - 11:09 am.

      Not only that, precedent

      Excellent question: what’s the alternative?

      Also, while some might worry and fret about a despotic judicial system, somehow in the 200+ years since Marbury v. Madison, the Supreme Court hasn’t ruled from the bench (for the most part). How is it that the country has managed to prevent that from happening? I think the answer is in the process. Marbury v. Madison also firmed up that process, both giving the Court more power and limiting it by better defining the jurisdiction of the Court. Even if the Court had the time to consider every single law coming out of Congress, it wouldn’t and can’t. And while the Supremes are still merely human, over all, the completely idiotic decisions are pretty limited.

      • Submitted by Tim Walker on 11/19/2012 - 11:41 am.

        Agreed, Rachel.I edited it

        Agreed, Rachel.

        I edited it out of my comment, but I had originally written that the potential for abuse by the Supreme Court is limited by the fact that they are reactive. That is, the justices cannot proactively act, but must make decisions on cases that make their way to them.

        I know that they certainly pick and choose what cases they will take, so that means they have some control over what issues they will address. But they don’t have the power to enact new legislation and then declare it constitutional.

  2. Submitted by Paul Brandon on 11/19/2012 - 10:03 am.

    Checks and balances

    The Supremes are not beyond the influence of elected officials.
    They can be impeached by Congress, and the implementation of their judgements is very much at the discretion of the Executive (which must execute the laws).

  3. Submitted by Paul Landskroener on 11/19/2012 - 11:30 am.

    Final isn’t necessarily right

    Lincoln has it about right, I think. The Court’s decision has to be the last decision in the particular case, but that does not by itself foreclose dissent in the nation as to whether the Court correctly interpreted or applied the Constitution. (Robert Jackson said it best when he said about the Supreme Court, “We are not final because we are infallible; we are infallible because we are final.”)

    That is, while the Court has to be the final word in particular cases, and its opinions must be granted a presumption of respect and authority, they are not infallible interpretations of the Constitution in other cases or binding on the political branches. There are many examples of where the Court decided a case and it was disregarded or considered illegitimate by other branches or broad swaths of the public–from Andrew Jackson’s disregard of the Court’s decision in Worchester v Georgia (“John Marshall has made his decision; now let him enforce it!”) to massive Sourthern resistance to Brown v Board of Education to unending nonacceptance of Roe v Wade and Bush v Gore. In other words, even if we must obey the Court, we need not agree that it is correct.

    The basic problem is with the conception of the Constitution as a sacred text that has a fixed meaning that transcends time and space and can be discerned properly only by a trained and invested priesthood rather than as living but imperfect expression of the spirit of the nation through its self-governing political institutions. (It’s the same mistake fundamentalist Christiand and Muslims make with the Bible and Koran who worship the book more than than the living god who inspired it.) There is no reason why a virtuous and vigorous body politic can’t work out through its elected representatives policies and solutions to problems that respect the spirit of the Constitution.

    For example, if we didn’t have a First Amendment, Congress could enact reasonable regulations regarding political campaign funding by corporations or others that would protect against corruption (and the perception of corruption) while ensuring full and vigorous participation and free speech and press by citizens. Similarly, if we didn’t have a Second Amendment Congress could enact reasonable laws regulating the possession and use of firearms that would preserve wide-spread availability of guns for proper and useful purposes while restricitng their anti-social use. The details would be worked out in the political sphere where they belong, rather than on some imaginary doctrinal basis. And they can change as needs and public opinion changes.

    On the other side, the constitutional priniciple of racial equality announced in Brown v Board of Education and its progeny was eventually — not immeidately — accepted as the law of the land because it was seen by the nation as a whole as correct, notwithstanding strong resistance in certain regions of the country.

    Because we’ve allowed the Court not only the practical authority to decide cases but the quasi-religious power to make authoriatative interpretations of the Constitution, we’ve let the political branches — and the citizenry — off the hook from their responsibility to take the Constitution seriously. So rather than the silly argument that something in the Constitution precluded Congress from enacting the Affordable Care Act, the argument could have been about what it should have been about, whether it was a good idea.

    To be clear: I’m not so much against having a written Constitution as much as I’m skeptical of a quasi-religious Constitutionalism. England inspires me: It has no written constitution, yet its unwritten constitution whose core principles are widely accepted and adhered to and has worked in a free nation with core political values similar to our own, though there are vigorous arguments about what it means at the margins.

  4. Submitted by Ray Schoch on 11/19/2012 - 12:57 pm.

    Good comments

    Eric raises an interesting issue, and the answer is part tradition, part logic, and part old-fashioned pragmatism.

    I have to agree with Tim Walker that I know of no reasonable alternative. Yes, there are occasional abuses, but the Constitution itself says that it is the supreme law of the land, and the original signatories, as well as every new state since then, has had to agree to that in order to join the union. Like Tim, I’m not enthused about the prospect of a Presidential or Congressional ruling on whether or not a new law violates the constitution.

    Rachel also makes a good point, as usual. There have been many, many opportunities for judicial abuse at the SCOTUS level, and the number of really awful rulings is quite small. The Court’s jurisdiction is limited – again by the Constitution itself – so it cannot consider every single new law simply as a matter of practicality. Not enough time, not enough justices and clerks, etc.

    Finally, lest we forget (though Paul Brandon has not), there’s the matter of implementation. When the SCOTUS ruled in favor of the Cherokee Nation in Georgia in Worcester v. Georgia (1832), Andrew Jackson is famously alleged to have said, “John Marshall has made his decision. Now let him enforce it.” The result was the Trail of Tears to Oklahoma. There’s no mechanism for SCOTUS decisions to be implemented except through the cooperation of federal and state governments.

    And of course, though I’ve never seen it personally, and don’t know, offhand, if it has ever happened, but at least in theory, Supreme Court Justices, like Presidents, can be impeached. When several SCOTUS decisions went against him in the 1930s, FDR’s proposed solution was to “pack the Court” with justices whose judicial philosophy was more friendly to his New Deal, but public outcry was quick and powerful, and the plan was dropped. It’s true that the current system is something that’s at least partly made up as we went along, but it has functioned reasonably well (i.e., allowing for the occasional loony conclusion) for a couple centuries, and, to go back to Tim’s original point, I’ve not come across a credible alternative.

  5. Submitted by Rosalind Kohls on 11/19/2012 - 01:25 pm.

    Another protection against a bad Supreme Court is that the US Constitution can be amended. It’s not easy, but it is possible. An amerndment can be removed, too, just like prohibition was.

  6. Submitted by Jon Kingstad on 11/20/2012 - 08:13 am.

    An alternative

    might have been that rather than declaring laws “unconstitutional and void” might have been that the court simply render “advisory opinions”. From what I’ve read about the Founders’ intentions, more than a few believed the judiciary branch was simply a department of the executive. The whole idea of “checks and balances” was superimposed later after Marbury v. Madison. And in light of what government has become in this country, I think one had to really doubt if this “checks and balances” really works to prevent despotic rule.

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