At The Week Joel Mathis writes about ending judicial review:
Forget packing the court. What if the U.S. Supreme Court was neutered, instead?
It’s a possibility. A presidential commission considering reforms to the court last Wednesday heard from Nikolas Bowie, an associate professor at Harvard Law School. He argued that it is time to end the high court’s power of “judicial review,” which gives it the authority to declare a law unconstitutional and thus usually gives SCOTUS the last word in battles with the legislative and executive branches.
The Supreme Court’s “relationship to Congress is not that of an umpire overseeing a batter, but of a rider overseeing a horse,” Bowie told the commission in his written testimony. “Most of the time, the court gives Congress free rein to act as it pleases. But the court remains in the saddle, ready to pull on the reins when Congress moves to disrupt hierarchies of wealth or status.”
When President Biden appointed the commission in April, public and media attention focused mostly on progressive hopes to pack the court with additional justices — the new seats to be occupied by Democratic appointees, of course — and reverse the court’s conservative tilt. As Bowie’s testimony indicates, the commission is actually considering a much wider array of possible changes to the judicial branch.
And the conversation involves more than mere technical changes, like court size or term limits for justices. Instead, it strikes at the very heart of the Supreme Court’s role in American governance, politics, and culture. Without judicial review, can the court be the court?
Judicial review, of course, is mentioned nowhere explicitly in the Constitution — the court claimed that authority for itself in Marbury v. Madison in 1803. “It is emphatically the duty of the Judicial Department to say what the law is,” Chief Justice John Marshall wrote in the ruling. The precedent has stood for more than 200 years.
There is a bit of trial lawyers’ wisdom, at least a century old, to the effect that when the law supports you argue the law; when the facts support you argue the facts; but when neither the law nor the facts support you pound on the table. For the last 65 years liberals and then progressives were very effective in getting the courts, the least democratic of our institutions, to further their social agenda for them. Now neither the Congress nor the courts are promoting their goals fast enough to suit them. Be prepared for more pounding on the table.
Actually, I support limiting the appellate jurisdiction of the Supreme Court—more to the point than eliminating judicial review entirely and eminently doable. It’s one of the Congress’s enumerated powers. From Article III, Section 2 of the Constitution:
The 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;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The emphasis is mine. If the argument is that’s more than can expected of a do-nothing Congress, I agree. But that doesn’t mean that it’s impossible. IMO it should have been done back in the late 60s.
Nikolas Bowie believes Dred Scott was decided correctly and that Taney was a racist that told the truth, i.e. Bowie is a critical race theorist. Within a few years of that decision, a majority of Congress (Republicans and Northern Democrats) and the President would be elected in the face of this outrage. The radicals are entering through the front door of the Capitol, not merely climbing up the walls and through the windows.
To be clear, reducing the role of the judiciary is a long established small “d” democratic position. But people like Bowie are not necessarily democrats. He may simply be trying to cow the judiciary.
The Constitution does not grant the courts any power of judicial review, none. That was a usurpation and invention of John Marshall in Marbury v. Madison (1803). Furthermore, until relatively recently (30 years?) no Common Law country allowed their courts the power of judicial review. Each of them (but not the US) passed specific legislation granting that power. So Marshall’s usurpation and invention remained unique for almost 200 years. The mystery is, Why didn’t Jackson arrest Marshall for his action?
It is obvious that Congress has the power to restrain judicial review, but it is so convenient to both the Congress and the President that such legislation will never pass. Just think of what the Supreme Court did since WW II: desegregation/integration, affirmative action (after Nixon), interracial marriage (the only kind in TV ads nowadays), gay rights and marriage, American flag burning, eminent domain for private companies and private profit… All of these had some support in Congress, maybe even majority support, but Congress could trust a politicized court (no other kind is possible) to read its mind and do its will. Congress did not have to rile the natives to get what it wanted.
Someone, please, help me out. Is not the concept – the very construction – the notion that executive and legislative branches, among and between federal and lower levels, and private entities are inherently prone to believe that another “just ain’t thinkin’ raiht?” But that there is a document that lays out the rules of the rode? And it is the Court’s role to apply the case at hand to the rigors of the document? And further, if the legislative believes the document should be amended it can be so amended, but with a substantial hurdle to overcome?
If not, as queried, can the court be a court, at least as a co-equal. Or are they reduced to resolving complaints brought by the nominating committee?
That’s an oversimplification. In a common law system (which we have) the law is interpreted using
1. The words of the statute.
2. Precedent
3. Principles of law
not necessarily in that order. Additionally, judges being human, their own agendas and preferences play roles as well. Some think it’s the deciding role. I think that varies from judge to judge but for most Supreme Court justices their own preference is rarely the deciding factor. For some justices in some cases it definitely is.
So, for example, Justice Kennedy was a sexual libertarian. His decisions reflected that strongly. Alito and Thomas are conservatives and that informs their opinions more than practically any other justices other than Sonia Sotomayor whose rulings are equally informed by her progressivism.
Could Congressional limitation of the appellate jurisdiction of the Supreme Court solve the problem?
In my mind; one can categorize cases the Supreme Court hears like this
1. Inter-branch conflicts — recess appointments, executive privilege vs congressional subpoena, recission powers, etc.
2. That the Federal government exercised powers beyond those granted by the constitution — Obamacare
3. That the States exercised powers beyond those granted by the constitution
4. That the Federal government or the States violated an individual right (the Bill of Rights, 14-15th Amendment)
5. Suits over Federal government following its own laws/rules (e.g. APA)
6. Arguments over interpretations of Federal Law (ERISA, patent law)
Of those, it is obvious Congress can limit appellate jurisdiction to categories 5/6; since they were created and can be altered by Congress at will. But those aren’t the issues that are “controversial”.
It is categories 2-4 that generate the controversy — but what is the alternative to Supreme Court appellate jurisdiction? (4) requires judicial review to give legal effect to individual rights, and a uniform standard requires a single authoritative interpretation. (2) and (3) require a single arbiter if we combine it with the constitutional requirement for the supremacy of the constitution and federal law.
Most of the cases heard by the SCOTUS are appellate cases.
“That’s an oversimplification. In a common law system (which we have) the law is interpreted using
1. The words of the statute.
2. Precedent
3. Principles of law
not necessarily in that order. Additionally, judges being human, their own agendas and preferences play roles as well. Some think it’s the deciding role. I think that varies from judge to judge but for most Supreme Court justices their own preference is rarely the deciding factor. For some justices in some cases it definitely is.”
This is just a statement of the obvious, but unresponsive. Does the court have the authority to adjudicate or not? We all know that judges differ; its a key issue of the day. Strict interpretation vs a living document. If we want to change how they rule we hold elections. If we want to change what they can adjudicate we have a mechanism: Constitutional Amendments. Have at it.
I’m trying to understand various opinions stated here and not characterize them simply as personal “if I was King this is how I think it should work.”
The current system has served us reasonably well for over 200 years.
Mr Bowie seems a dangerous man. Mr Mathis points this out.