Th ability of the Supreme Court to overturn the will of a democratic majority has always been challenged by those in power. Thomas Jefferson was extremely frustrated with a court that had been populated by the Federalists, and I’m sure judicial review gave him fits. FDR’s legislative agenda was so badly mauled by an oppositional court that he tried to appoint additional justices who would see his way. Felix Frankfurter disappointed many who had hoped his pre-Court activism would carry over to the Court. Instead he became a proponent of judicial restraint; because the Court was not answerable to anyone democratically, it should refrain from creating policy. His thinking was that the courts can frustrate the majority by striking down legislative enactments. They do so on the basis of their "own," possibly idiosyncratic,interpretation of the Constitution while remaining insulated from the "democratic," i.e., electoral, process. Hence the judiciary's review power, not being genuinely democratic, should be severely limited.
That tenuous balance between restraint and activism has been the subject of numerous articles and books all using the power of judicial review as their springboard. Alexander Bickel’s The Least Dangerous Branch (echoing Alexander Hamilton’s view of the Court’s role) was the first book I ran across years ago questioning the wisdom of judicial review. I have discovered a veritable flood of books since then. Bickel’s thesis was that judicial review was counter-majoritarian in a democratic society. Of course, a major danger of any democratic system is that it’s counter-minoritarian, i.e. that the majority will trump all over minority rights. (I won’t even try to discuss the evil effects of slavery on our system as it relates to judicial review, except to say that it was a case where minority white power used judicial review to maintain and enhance minority white control of an ever increasing black population.)
There exists a popular myth that any case will be heard by the Supreme Court if it has merit. This erroneous view ignores the huge number of cases actually submitted to the Court. These are usually read by the Justices’ clerks who then make preliminary decisions and out of perhaps 9,000 submissions, only about 70 are heard each year.That they get to do that kind of winnowing (available only since 1925 when Congress told them they no longer had to hear ALL the cases)1 is already a form of policy-making and an accretion of power never intended by the Framers.
The syllogistic debate over “originalism”, “textualism”, and “living constitutionalism” is merely a way of rationalizing judicial review and its inherent power. Each of those interpretations represents an explanation for the reasoning done by judges to come to a decision, a way of articulating how they came to that decision. All of those rationale’s are intended to counter the proposition of Judge Learned Hand that judicial review should be curtailed because it has no textual basis in the Constitution.(2) Depending on your political persuasion and wealth, judicial review could be a good or bad thing. Whether the Court should follow the winds of political change is another matter entirely. Just look at Roe and Dobbs.
The major problem as I see it is the lack of clarity in the Constitution itself which forces the creation of a mechanism for interpreting it in light of changing economic and cultural environments. That we have had three Constitutions is clear: the first being the Articles of Confederation that left virtually no power in the hands of a united government; the Constitution of 1789 rectified that impotence and created a more supreme federal government; and finally the Constitution of 1868 that included the 13th, 14th and 15th Amendments which corrected several of the pro-slave deficiencies of the 1789 document and gave more administrative power to the federal government, power that the Supreme Court proceeded to take away in bits and pieces during the latter 19th century until the middle of the twentieth century when it was gradually returned. The current court is shifting the balance once again,but this time moving the power to the corporate world in opposition to the democratically elected federal world.
Sylvia Snowiss argues in her book (3) that Marshall revolutionized the understanding of judicial review which heretofore had been used exclusively to correct violations of “fundamental law” rather than “ordinary law.” Those violations “could be rectified only "by electoral or other political action," or wanting these, by "revolution or the threat of revolution." After Marshall, Judicial review was no longer a last-ditch "revolutionary defense" but part of the regular business of the federal courts. The Constitution had been "legalized." That the idea of judicial review was well understood, she argues, was clear, and that Marshall knew and understood it, but his purpose was to embolden and empower the Court. She fails to spend much time however, on Section 25 of the Judiciary Act of 1789, which delivered the authority of review to the new Supreme Court, so an argument can be made that Marshall was simply implementing that charter.
Anti-court movements, of which the attacks on judicial review are merely a side effect, are nothing new. They arise whenever the court does something that irritates one side or another, so much of it should be taken with that in mind. Nevertheless, the discussion bears on our relationship to democracy and the structure of our odd form of government. Keep in mind that I am not an attorney, that these reflections are based on parochial and incomplete reading of books and other sources, inspired by what I believe to be an overreach of the current court into the realm of policy-making. I come from a position of support for the Court that evolved during the sixties when it was seen as a bastion and bulwark of freedom for the oppressed rather than a haven for the rich and powerful.
There are ways to bring a Court to heel. Barry Friedman (4) discusses at length how political pressure was used during Reconstruction by changing the size of the court to alter its political makeup. That option would seem to be a non-starter today. Whether current corruption on the court, obvious in the actions of Justices Alito and Thomas, in particular, and calls for ethics reform will have any effect, remains to be seen.
1, The Judiciary Act of 1925 provided the justices with the sole discretion to determine their caseload. In order to issue a writ of certiorari, which grants a court hearing to a case, at least four justices must agree (the “Rule of Four”). https://www.britannica.com/topic/Judiciary-Act
2. “The Historical Significance of Judge Learned Hand: What Endures and Why” by EdwardA. Purcell, Jr. New York Law School, 2018 https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=2209&context=fac_articles_chapters
Hand gave the prestigious Holmes Lectures at the Harvard Law School which were immediately published under the title The Bill of Rights. There, Hand issued sweeping constitutional prescriptions calling for extreme limitations on the power of judicial review.
The book embraced majoritarian principles, affirmed the policy-making supremacy of the political branches, denied that judicial review had any constitutional foundation, and warned incessantly of the dangers of judicial subjectivity in construing vague constitutional provisions, particularly the Bill of Rights and the Fourteenth Amendment. Pg 862
3. JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION. By Sylvia Snowiss.• New Haven, Conn.: Yale University Press. 1990. Pp. vii, 228. Cloth, $25.00.
4. Friedman, B. (1998). The history of the Countermajoritarian difficulty, part one: The road to judicial supremacy. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.60449 and Friedman, B. (2002). Reconstruction's political court: The history of the Countermajoritarian difficulty, part two. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.312023
