A conservative case against judicial review

Many conservatives have come out in recent days with full throated endorsements of the Supreme Court’s policy of judicial review.  It is so ingrained in our political and legal culture that it is difficult to imagine an America where the Court didn’t have the power to deem legislation unconstitutional.  If judicial activism is defined as a court creating new rights that are not outlined or expressed in the text of the Constitution, then judicial review was the first case of activism at the Supreme Court level.

Prior to the adoption of the United States Constitution, the idea of judicial review was well-entrenched in legal circles.  England had utilized the practice before the revolution while courts in the U.S. had voided legislation as prohibited by state constitutions.   The idea of judicial review was alive and well when the Constitution was adopted.  Strangely, the power was never mentioned in the Constitution.  Some have alluded to statements made at the constitutional convention as proof that the founders intended for the Court to possess the power, but conservatives have to recognize that although the power had been conceived at the adopting of the Constitution, Article III fails to mention any such power granted to the Court.

Conservatives are consistent in pointing out that our federal government is one of limited powers.  Our Constitution does not assume that our government has plenary power that may be limited.  It instead, assumes that the federal government has no power, except the enumerated powers granted to it in the Constitution.  In fact, the Tenth Amendment, which we regularly tout when citing government overreach drives the point home.  If a certain power is not delegated to the federal government through the United States Constitution, the government does not possess such a power.

Article III clearly and concisely lays out the power of the Supreme Court.  The Court may hear cases:

Affecting leaders and ambassadors;

Admiralty and maritime law;

Suits against the U.S., between states and citizens of different and foreign states; and

Finally, the Court has appellate jurisdiction where Congress allows.

That is it, that is the Court’s jurisdiction, there is no language regarding the ability of the Court to void legislation passed by the Court.  It isn’t in the Constitution.

Section 2 states that “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”  This is where proponents of judicial review, base their argument as implied.

There is no doubt that section 2 defines the jurisdictional power of the Court.  But it is a bit of a stretch to state that this jurisdictional power allows for the overturning of legislation.

To be clear, reasonable minds can disagree on this one.  Judicial review isn’t a sham but it is an overreach.  To be sure, President Jefferson and other contemporaries of the time were very surprised to learn of Chief Justice John Marshall’s handling of Marybury v. Madison.  The President stated that Marshall took the Constitution and made it “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”  He was right.

Acceptance of judicial review has become commonplace in our framework.  But what is most surprising is many conservatives argument that this is part of the separation of powers and checks and balances.  An unelected group of judges can overturn legislation passed by the other two branches of government.  That doesn’t create a co-equal branch of government, but rather a branch that is powerful enough to overturn anything that the other two branches work to pass.  It puts us on a path to an oligarchy.

And here is another question, if the Court acts as a check on Congress and the President, who acts as a check on the Court?  Must we pass a Constitutional Amendment by overwhelming majorities and ratify it through all fifty states in order to overturn the will of nine people or Justice Kennedy alone?  That seems to be the only check or balance those in favor of judicial review would leave for the High Court.

Politically speaking, many argue that the Court is the protector of the Constitution and therefore a good and necessary thing, however, the opposite has been true.  Throughout the centuries, the Court has acted as a political body that acted to reinforce the greatest social tragedies of our times (think Dred Scott) while only passing positive judicial legislation (think Brown v. Board of Education) after it was becoming fashionable.

Like any political body, the Court has gotten some decisions right and some decisions wrong.  The objective of this piece isn’t to encourage full opposition to judicial review.  It certainly has its benefits to a republic.  It is simply to point out the dangers of relying on the Court to set things straight, so to speak.  If there is one thing U.S. history teaches us about the courts, it is that we can’t always rely on them to be a bulwark for Constitutional liberty against the majority.  The Court, in Planned Parenthood v. Casey, ignored the protection of life outlined in the Fourteenth Amendment instead choosing to rely on it’s own judicial review.  Judicial review has elevated the Court’s “opinions” to Constitutional law, and that may be the most dangerous legacy of judicial review over the long run.