By Mike Koetting August 1, 2022
Given the abject rottenness of recent Supreme Court decisions—and visions of more to come–it is reasonable to raise the question of whether the entire model of judicial review is a bad idea.
It is clear there is something peculiar (to use a modest word) to give so much power to a small group of people who are not only un-elected, but in fact may have been appointed by a party that has lost multiple elections since they were appointed or which has repeatedly lost the popular vote or both.
Most other countries have some judicial review, but in virtually none is it as extensive or important as in America. The role of judicial review in America does not—directly—spring from a power granted by the Constitution. Indeed, the power of judicial review specifically stems from a Supreme Court decision, Madison v. Marbury, decided in 1803. Thus, it might correctly be observed that the power of judicial review is something the Supreme Court granted to itself. It would fail a test of strict originalism. The decision in point concerned a purely political issue, that was ultimately side-stepped, but the opinion had far-reaching consequences since it established the principle that the Supreme Court could invalidate an act of Congress.
That being said, it is also fair to say that power is broadly consistent with the intent of the Framers to separate and limit power wherever possible. One of their overriding concerns was preventing “too much” concentration of power. Paradoxically, this flowed from a real desire to preserve individual rights and from a realpolitik understanding that there would be no America without a structure that supported the continuation of slavery, which through some tortured mental gymnastics, it made into an issue about the rights of slave-holders. In that way, it also rested on a social construction of reality that avoided a range of issues because the general consciousness did not yet accept them as issues that needed to be addressed.
The power of judicial review has a mixed history in America. For long stretches, the Supreme Court has used it modestly, something that is more like what is seen in other countries. But there is no shortage of memorably bad decisions. To pick just a few, the outlandishly racist Dred Scott decision that did much to make the Civil War inevitable, the 1896 Plessy v Ferguson decision that sanctioned Jim Crow and the 1905 Lochner vs New York case that cemented the laissez-faire approach to capitalism at a time when European countries were starting to experiment with greater market regulation. And now we have the current batch of rulings.
But the Supreme Court also decided Brown v Board of Education (1954), Roe v Wade (1973) and Obergefell v Hodges (2015) among others, all decisions that have advanced causes that I agree with. And herein lies the problem.
To simply argue that the current crop of SCOTUS stinkers are un-democratic, while true, is much less compelling in light of these other decisions. Many of the decisions I support were also made without regard to popular opinion. Indeed, they were expressly in opposition to the majority opinion at least in selected states, and maybe in the country as a whole. And that is the essence of judicial review—it stands over the majoritarian aspects of our government.
Given that judicial review can have good or bad outcomes, and may at times be explicitly anti-majoritarian, do we want to preserve the possibility for good outcomes at the risk of bad outcomes?
The short answer is “Yes.” It is hard to imagine that the terms of the Constitution get enforced without some form of judicial review. Erwin Chemerinsky compellingly outlines the importance of judicial review. Where, he asks, do people who are not in the majority turn for protection of their Constitutional rights if the majority abuse them? Arguing that something opposes majority opinion is simply not relevant if it falls within the ambit of what the court believes are Constitutional rights.
But only to a point. Having a body that specifically reviews and asks a question about whether laws protect fundamental rights is necessary. But the entire idea of democracy is thwarted if an un-elected court can routinely and protractedly ignore the desires of the majority. Skepticism about the limits of judicial review is also consistent with the underlying belief in checks and balances espoused by the Founding Fathers. Above all, they valued balance. In this case, there is theoretical balance, achieved because a decision by the Supreme Court (or any court) allows the legislative branch to reconsider and, presumably, address the issues raised. Or, if extreme enough, amend the Constitution.
However, the presumption would be that those processes themselves are democratic. Unfortunately, in America, not so much. Both the composition of the Senate—not to mention the self-imposed rules of filibuster—and the incredible difficulty of amending the Constitution make responses to a court decision uncertain. All of which raises the thorny question of when is something democratic? Both the construction of the Senate and the process for amending the Constitution—and the Electoral College–assume that democracy is better measured by a majority of the states than a majority of the national population.
These problems are compounded by the existence of fairly powerful state legislatures. They may pass laws that many may consider unconstitutional. Some of these laws will in fact reflect the majority will of the residents of those states. One of the important roles of the federal court system has been to act as a guardrail from these overreaching legislatures and push individual states to a uniform standard of what rights are accorded to Americans. But this has always been rocky ground because the general construct of American government (embodied in the Tenth Amendment) gives states “reserved power” over anything not expressly “delegated” to the federal government. This problem has gotten even worse as some states are less the “laboratories of democracies” that Justice Brandeis (New State Ice Co. vs Liebmann, 1932) hoped for and more laboratories against democracy.
Given all of the above, while it seems clear that judicial review is a logical necessity, some limits on its power are equally necessary. In reality, it is simply a framework to help a society work through contested issues. At core, its usefulness depends on the political context in which it takes place, enabled or limited by the willingness of the society to take in divergent points of view, make compromises, and expand its thinking. The definition of Constitutional rights is not decided in a vacuum from politics. There is no Platonic truth to which the courts have better access than the rest of us. In the world of mortals, “truths” change with time…and do so unevenly. Politics, in its broadest sense, is how a society decides among competing “truths” in a way that doesn’t destroy it. In theory, judicial review assists in that process.
For that process to work, however, there needs to a sufficient agreement on the underlying values so forbearance and compromises can be exercised. There is no longer such agreement in America, which makes the country ungovernable. In the American governing system, compromise in the face of numerous checks and balances is the only feasible operating strategy. When that is no longer possible, the very mechanisms meant to foster compromise—such as judicial review–are weaponized to prevent compromise and encourage anger. Worse yet, as these mechanisms become fouled, the tools for making constructive changes go with them.
The problem is not the role of the courts. The problem is our politics.
Addendum: Limit Terms of the Supremes
I don’t think we can solve the issues of the Supreme Court until we restore some sanity to our pollical system.
But there is one change I can think of that might be possible and, over time, would marginally improve the situation—limiting the terms of Supreme Court justices.
This idea has been kicking around for a while now, but it does seem to gaining traction. The actual lengths of service of Supreme Court justices have been getting longer and public respect for the Supreme Court was dropping like a rock, even before the most recent of decisions.
Polls have shown a huge majority (like over 70%) in favor of limiting justices’ terms, drawing strong support from members of both parties. The measure has no obvious partisan bias. The first time I heard the idea was from Rick Perry back when he was running for President.
Representative Ro Khanna (a Democrat from California) has introduced a bill to limit Supreme Court justices’ term to 18 years, with each President getting to appoint a new Justice in the first and third year of their term. Obviously it is isn’t going anywhere this term, but it should be reintroduced in January. If it could be enacted next year, before anyone can realistically imagine the outcome of the 2024 election, there would be no inherent party advantage. I would prefer a 12 year term, but that number is less important than the idea.
The bill as it now stands would temporarily increase the size of the court to accommodate new justices picked by this process, until all the currently sitting justices retired. I suspect that this provision would be an obstacle since Republicans might see this as a short-term court-packing scheme. While in theory this could cut either way, I can’t imagine Republicans being willing to risk the current advantage they hold, and expect to hold for a while. It may be necessary to have some mitigating approach—perhaps using the term-limits only if it is necessary to replace a justice in the first four years, then having the temporary expansion kick-in. In any event, it will take a while to change the composition of the court. But, as often the case, the issue is whether you do nothing in hopes of a better deal later or you take what you can get.
One other thing about this approach—it can probably be done without a Constitutional amendment. If Justices wanted to continue servicing, they would simply rotate off the SCOTUS into somewhere else in the federal judiciary. Of course, the final determination of whether or not it requires a Constitutional amendment would probably reside with the Supreme Court itself. It kind of feels like I fell into an Escher drawing.