In 1717, Bishop Hoadly told King George I, “Whoever hath an absolute authority to interpret written or spoken laws; it is he who is truly the lawgiver to all intents and purposes and not the person who wrote or spoke them (Pollack, 153).” Early sentiments similar these have blossomed into a large scale debate over which branch of our government has the power to overturn laws that do not follow the foundations of our democratic system; the constitution. In this paper I will discuss the history of judicial review in respect to the U.S. Supreme Court, but more importantly, I will discuss the impact that judicial review has had on the Supreme Court and our system of government and the various arguments behind this power that the Supreme Court now possesses.
The first instance that the Supreme Court showed its power under the cloak of judicial review was in the legendary case of Marbury v. Madison. In the confusion of leaving office, President John Adams failed to have delivered four commissions that he had made before having to surrender his power to Thomas Jefferson. In fact, the responsibility of delivering the commissions was left in the hands of John Marshall, the former Secretary of State under Adams, who was now the chief justice of the Supreme Court. When Jefferson took office, he refused to have the commissions delivered, and the case was filed by Marbury and the three other marshals that failed to receive their commissions. As the Chief Justice, Marshall wrote the opinion of the court by answering three questions concerning the case; did Marbury have a right to the commission, did Marbury have a remedy to receive the commission, and was a writ of mandamus the proper remedy to receive the commission. Marshall answered yes to the first two questions, but said that the Supreme Court could not give him the commission he was entitled to through a writ of mandamus. Through this decision, Marshall not only asserted the power of the court with judicial review, but also avoided a potentially devastating confrontation with the presidency in the early years of our fledgling government. Marshall was able to establish the judiciary’s role in our government with this decision by answering the question that if the courts do not have this power, which does.
The significance of the Marbury v. Madison decision is far reaching. Before the 1803 decision, the court had never really been a factor in our government, so much that the 1802 session was terminated by President Jefferson. The case established the Supreme Court’s authority to review and strike down governmental actions that did not follow the Constitution. Marshall believed that although the framers of the Constitution did not explicitly write the power of judicial review into the constitution, it was what the framers intended. I will discuss this argument in greater detail later.
After the Marbury v. Madison decision, the Marshall court enjoyed a new found power, but rarely found occasion to use it since most of the cases that were heard were rather trivial private law disputes. However, the court was able to hand down a number of important opinions interpreting various aspects of the Constitution. After Marshall’s death in 1835, Roger B. Taney ascended to the chief justice. Taney, unlike Marshall, was a Jacksonian Democrat, and a strong supporter of President Jackson and his view of state’s rights. It was Taney who passed down the infamous 1857 decision in Dredd Scott v. Sandford, which displayed the court’s belief that blacks had no real Constitutional status and that the court strongly supported state’s rights. Furthermore, the Dredd Scott decision worsened conditions for nationalists, and inevitably pushed our nation closer to civil war.
After the war had ended, the court again found itself busy with a large caseload due to the many commercial and private disputes raised by the war. Chief justices Salmon Chase and Morrison Waite helped to reestablish congressional power over the defeated South, but had little chance to use its power of judicial review during this time or repair.
The close of the war brought the Industrial Revolution and newfound problems to our country and government. Two questions which found their way before the Supreme Court were whether or not Congress had the authority regulate commerce and the power of the states to impose regulations on business. In addition to these two problems, the court also found itself involved in protecting commercial interests from governmental regulation. This was in large part accomplished by the appointment of many justices by Republican presidents who supported a free market economy. This continued through the New Deal era, when the court became heavily involved in government by overturning more than 130 regulatory laws which it stated violated various sections of the Constitution. This was the heyday of judicial review for the Supreme Court. Furthermore, the court passed landmark legislation in civil rights with the “separate but equal” clause being passed down in Plessy v. Ferguson (Walker/Epstein, 17-19).
Under Roosevelt the court struck down a great deal of legislation aimed at regulating powerful trusts and holding companies. Because there was so much legislation that was struck down by the court as being unconstitutional, Roosevelt threatened to add one new justice for each one that was over 70 and still sitting on the bench. Although Roosevelt never carried through with his idea, the court’s behavior changed so that some of the New Deal legislation that was originally struck down was eventually passed. This change of heart on behalf of the court is now referred to as “the switch in time that saved nine” (Walker/Epstein, 19).
The membership of the court changed dramatically under Roosevelt due to the fact that the old justices were retiring and eight new were appointed. These new justices placed a greater emphasis on civil rights, liberties, and the concept of justice. The appointment of Earl Warren in 1953 to the position of chief justice only sharpened what was already a “liberal” court. Judicial review was used during this important time in decisions such as Brown v. Board of Education, Baker v. Carr, Griswold v. Connecticut, and Miranda v. Arizona. Although many ground-breaking decisions were passed down under the Warren court, he and his court were heavily scrutinized for “protecting the rights of the criminally accused”.
The vacated seat of Earl Warren led to the appointment of Warren Burger to the chief justice seat by Richard Nixon; one of four appointments that Nixon had the opportunity to make. As Nixon had hoped, the Burger court was far more conservative than the Warren court, yet they still handed down decisions which legalized abortion, legitimized school busing, and provided greater protection for women under the Fourteenth Amendment of the Constitution.
The court today has become even more conservative than the days of the Burger court, with the appointment of William Rehnquist to the chief justice post. The appointments of David Suter and Clarence Thomas have strengthened the conservative block in the court, replacing strong liberal voices such as William Brennan and Thurgood Marshall (Walker/Epstien, 20-21).
The explanation and thorough history of the Supreme Court and its justices is necessary when discussing the power of judicial review because it depends in a large way on the make-up of the court as to how their power is utilized. This is evident during the New Deal era when the power of the court under judicial review was frequently applied to a plethora of legislation passed by Congress. The conservative appointments in the late 1800’s and early 1900’s obviously affected the court’s decisions during the New Deal era because of their conservative roots. The depression era and the election of a Democrat to the White House caused a great deal of disagreement over what the government could and could not regulate. The Republican president appointments led to a great deal of judicial review being utilized during the four terms that Roosevelt occupied the presidency.
The concept of judicial review has been an item of many debates ever since Marshall invoked its power in 1803. In fact, the notion that the judiciary would have the power to review and overturn an act of Congress was discussed at the Constitutional Convention, but the framers failed to include this power in the Constitution by not explicitly stating it in the document. This is one of five debates concerning the power of judicial review that David Adamany outlines. Adamany writes that the framers intent debate is probably one of the oldest arguments concerning judicial review, and notes that even though over half of the delegates to the Constitutional Convention approved of the idea, yet it was not explicitly written into the document because it was another possible area of division for the convention delegates. However, it is interesting to add that Alexander Hamilton defended judicial review; “One branch of government must safeguard the Constitution, and the courts are in the best position to do this (Walker/Epstein, 11).”
The second debate which Adamany outlines is entitled judicial restraint. This debate is based on the premise that the courts should not involve themselves with the other branches of government whatsoever. However, this argument is not taken seriously since our system of checks and balances requires some involvement in the other branches of government by the courts. This leads to the next debate which Adamany outlines, entitled democratic checks. Here it is argued that judicial review is defensible because it is still subject to those checks and balances by the other branches of government. Adamany lists some possible recourse that other branches still have on the courts, which we have already discussed as being court curbing decisions; changing the size of the court, removing the court’s appellate jurisdiction, and altering the court’s membership. One decision curbing remedy which was mentioned involved passing legislation such as a Constitutional Amendment.
Public Opinion is the fourth debate which Adamany discusses. The argument here is that court decisions are usually in tune with public opinion, which lends to the court’s legitimacy and conferring power. He notes that if the court upholds legislation, it is accepting governmental policies. The final argument which Adamany discusses concerning judicial review is labeled as the role of the court debate. This argument focuses on what exactly should the role of the court be. Those who support judicial review say that it is necessary because courts are designed to protect minority rights. Also, since judges are not elected, it is argued that they are able to protect minority rights through their decisions, as opposed to elected officials who design legislation and decisions to support the majority (Walker/Epstein, 10-14).
The concept of judicial review has been debated from various angles and viewpoints for nearly two hundred years. In my opinion, judicial review is necessary in our system of government because it allows the judicial system a check on the other two branches of government. Although this check was not explicitly stated in the Constitution, I feel that it was within the framers intent for the Judiciary to act in this capacity. Furthermore, the Judiciary has abided by some unwritten rules so as not to abuse their power under judicial review, and these rules are known as the canons of jurisprudence. These rules call for the judiciary to only rule on a Constitutional issue when absolutely necessary, define the scope of the limiting agent only to the case at hand, and only address a Constitutional issue if there is no other alternative (Peltason, 24).
Although judicial review has presented our judiciary with some troubled and anxious times, I believe that it has done more good than bad, and is an essential part of our government and democracy. Judicial review lends legitimacy to the Supreme Court, but more importantly, it protects minority rights. This is accomplished because the judiciary is the only non-elected branch of our government, so it is able to protect minority rights, while the other two branches are supporting majority rights in order to get re-elected. Judicial review has the power to make our system of democracy fair for all of our citizens.
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