Judicial Review - The Power Of The Courts

This is a short paper I presented as part of my research project many years ago. It covers the historical, ethical, social, and legal issues surrounding Judicial Review.

Judicial Review

In the landmark case of Marbury v. Madison (1803), the Supreme Court declared an act of Congress unconstitutional and thus established the doctrine of judicial review. Despite the controversy which has continued to surround the issue of judicial review until today, I feel that its legitimacy and necessity was founded by the Framers in their early contemplation of creating the document. It was so self evident to them, perhaps, they felt

The intention of the Framers was to have coordinate branches of government. Their objective--an equal division in government, of government, with consent by the people for this government so that each branch of government would have the means to effectuate their power, while at the same time restricting them from encroaching on the powers of the other branches.

It is my objective to show that the power of judicial review that the Supreme Court claimed in Marbury is (a) legitimate and necessary, (b) finite because checked, and (c) although the justices have the power and ability to interpret the Constitution as they see fit, it would be improbable that they would do so without first seriously taking into consideration what response an unsound, ambiguous, poorly supported decision might bring by the other coordinate branches of government.

Although conceding that the explicit right of judicial review is not found in the Constitution, it is clear, historically, the Framers did contemplate the necessity of placing the power to interpret the Constitution and all the laws pursuant thereof in the hands of the Federal judiciary. In support of this assertion, I make specific reference to Hamilton's Federalist #78. In discussing the judiciary and its relationship with the other branches of government, Hamilton writes that "...the judiciary from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." He goes on to say that the judiciary of the three branches of government is unquestionably the weakest. Can anyone disagree? Surely not. The President wields the "sword of the community." The Legislature "commands the purse." Conversely, the Court has neither. It is, in fact, dependent on compliance by virtue of its integrity and prestige. (The Federalist #78, p 465)

While the Court in Marbury has been accused of exceeding the authority which it claims it has, actually, it only came one step closer in becoming the check that the Framers originally intended it to be. Of the three branches of government, judicial review must rest with one of them. And with the Supreme Court being the weakest of those branches, the power to interpret constitutional limitations on the powers of the other two branches, would seem to be safest residing in their hands. Enough measures exist to enable Congress and the Executive to constitutionally prevent the Court from exercising judicial review by legitimately curtailing the scope of its power. It has not shied away from exercising these measures in the past.

The power of judicial review would only be of great danger if it were unchecked. However, such is not the case in our system of government. I suggest that many checks of one form or another exist on the Court. Sometimes even the Court checks itself. Under Ex Parte McCardle (1869), the Court unanimously refused reviewing McCardle's appeal finding that the "...judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer." The Court, although possessing the power of judicial review (and even though a constitutional issue was involved), admitted that Congress was constitutionally empowered to make exceptions to the Court's appellate jurisdiction. Even after hearing oral argument on the case, they declined adjudication recognizing their higher duty to follow the prescribed strictures on their own power. Hence, this is evidence that the Court's power is limited by the permissible scope of appellate jurisdiction that Congress sees fit to afford it. And when acknowledging the fact that the majority of cases coming to the Supreme Court are via appeal and not by original jurisdiction, the danger of judicial error or misinterpretation would pose less harm than the opponents of judicial review would like to admit. ( Ex Parte McCardle, p 89)

In Marbury, Justice Marshall made a well supported, inherently undeniable, necessary implication of the power of the Constitution. Marshall said, "to what purposes are powers limited and to what purpose is that limitation committed to writing, if the limits may, at any time, be passed by those intended to be restrained?" Unquestionable, Marshall hit upon the essence of a written Constitution. Once the Framers committed to writing the guidelines for the creation of a new form of government, it cannot be disputed that they envisioned that such a government could not exist were Congress empowered to interpret the Constitution within the scope of their own power. (Marbury v. Madison, p 83)

Of the three major points brought out by Marshall, two seem to be self evident and of no need for extensive analysis. First, principles were the basis for the creation of the instrument and not vice versa. Thus, the authority that stems from the Constitution must necessarily be supreme and the principles permanent. Second, the Constitution organizes a framework for government and enforces its foundation via separation of powers, ensuring the permanence of these principles. Third, the Constitution controls and cannot be controlled. No better proof of this exists other than Article VI of the Constitution, explicitly declaring the Constitution to be the "supreme Law of the Land." Therefore, any law that

There are those that would argue that the President, under Article II, section 3, has the chief duty to make sure that the laws be faithfully carried out. Hence, he should be in a position to interpret the Constitution instead of the Court. However, were this the case, would the Framers have afforded the President a check on the Court through his pardoning power? surely not. We may then ask the more relevant question of whether the Court could enforce its decision in any case? No again. It seems too obvious to be stated, but when stated seems too absurd to accept, but it might logically follow that the President, being Commander-in-Chief and having the power and duty to enforce the Constitution, may construe its provisions and effectuate its laws. The argument could be made that the President, as the head of a coequal branch of government, can read the constitution and interpret for himself the constitutional scope of his specific powers. The problem with this is that he would wield great power, not to mention the difficulties in maintaining the separation of powers required by the Constitution. Instead, the President could elect not to enforce a particular decision in a case. Finally, how much power can the Court have, even with judicial review, absent public support in its favor. Obviously, if such were the case, who would dare back the Supreme Court against the President if it ever came down to it.

The power of the Court is limited by Congress, because it can only hear "cases and controversies" arising to be adjudicated. Prevented from issuing advisory opinions, the Court can only utilize this power when the issue itself is raised. Furthermore, Congress can react to an unfavorable Supreme Court decision by amending the Constitution. For example, the recent decision by the Court upholding flag burning as symbolic speech just might facilitate this response in the near future. Moreover, Congress could also repass a law even after the Court declared it unconstitutional.

Even with judicial review existing for sixty six years, McCardle represents my contention that the power of the Court in exercising judicial review is checked. Hence, while Congress can no longer take away the court's power of judicial review, they can, however, achieve the same effect through different means. Congress, in this case, successfully restricted the Court by taking away the power to review the type of habeas corpus proceeding effecting McCardle, something given to it only one year earlier. Nevertheless, what is to say Congress, theoretically, could not take a similar action in the future. What is to stop Congress, even today, from eliminating the Court's appellate jurisdiction. Perhaps, in a specific subject matter. Clearly, despite the storm which might erupt over such congressional action, it would be legitimate were it derived under the "...such Exceptions, and under such Regulations as the Congress shall make" provision in Article III, section 2. Therefore, in response to those that would argue that Marshall's statement, "it is emphatically the providence and duty of the judicial department to say what the law is," signifies the Court's admission declaring itself the final interpreter, would not easily persuade me as to that being the fact since this past cases proves otherwise. The Court has full fledged appellate jurisdiction only until Congress sees fit to make exceptions regulating this power. Therefore, the existence of this, alone, unquestionably acts as a check on the Court as well. (Ex Parte McCardle, p 84)

In the case of Minersville School District v. Gobitis (1940), the strongest argument can be made for the need of judicial activism by the Court, at least over the legislature. In his dissent, Justice Stone argues that, realistically, smaller groups would not be adequately represented in their state legislatures. Laws, therefore, which encroach on the free exercise of these group's religious beliefs should be strictly scrutinized by the courts. In this instance, were the power of judicial review to reside in Congress of the President, two branches which could more easily succumb to the political pressures of the day, it is unlikely that the rights of insulated minority groups, such as the Jehovah witnesses here, would be adequately protected. And how much more magnified is this dilemma when knowing that a two, four, or six year term of office will be more susceptible to influence as opposed to a position given life tenure. Therefore, any other alternative would only serve to hinder the ability for constitutional protections to be effectuated.

Were Congress afforded the power of judicial review, they would unquestionable possess an illimitable stamp of approval over everything they would seek to introduce as law. In the hands of the Executive, any realistic attempt to check this power would be nothing short of an exercise in futility. Therefore, it must be an inseparable function of the Supreme Court to interpret the power of the Legislative and Executive Branches. The Court has been doing so for over two centuries. While their decisions have not always been good, proper, or maybe even sane, nevertheless, we still exist as a nation of laws and not a nation of (judicial, executive, or legislative) men.