Judicial Review Solves a Problem of Power

A progressive’s call to undermine it is shortsighted.

The Supreme Court building
Joshua Roberts / Reuters

Progressives do not want Donald Trump, Mitch McConnell, or other powerful Republicans to ignore the Supreme Court when they disagree with its rulings. Doing so would upend a constitutional order that has prevailed for more than 200 years.

Under judicial review––the courts’ ability to check the constitutional validity of laws that legislative majorities pass and executives sign––the postwar Supreme Court has repeatedly thwarted democratic majorities. It has struck down Jim Crow segregation, prohibitions on interracial marriage, laws denying the right to an abortion, laws prohibiting sodomy, and laws forbidding same-sex marriage.

Yet last week, the New York Times columnist Jamelle Bouie, anticipating a progressive majority governing alongside a conservative Supreme Court, argued that SCOTUS has always been political, that “no reform short of ending the power of judicial review will disentangle it from ordinary, partisan politics,” and that progressive leaders should mimic past presidents “who resisted the Supreme Court’s claim to ultimate interpretive authority,” so that they can advance economic policies that Chief Justice John Roberts may find unlawful.

Like Ben Shapiro, who in 2005 published a Townhall column calling for an end to judicial review, Bouie marshals populist rhetoric about “the prospect of government by justices” that ostensibly “threatens to undermine both the court and our democracy.” In his telling, a conservative court will force Americans “to conform to their particular understanding of the Constitution despite equally valid alternatives,” as if there is any way of avoiding contested constitutional outcomes.

It may, he says “shackle future majorities for decades to come.”

It is “a problem of power,” he writes, and to solve it, adding extra SCOTUS justices to dilute the conservative majority, itself a radical proposal, isn’t enough.

Calls to flout judicial review made more sense in the era of Dred Scott or the Civil Rights Act of 1875.

Today it is shortsighted and reckless, as anyone old enough to have lived through 9/11 and its aftermath ought to know. “Ending the power of judicial review would leave legislators free to do whatever they want, restrained only by their own consciences and their fear of political repercussions,” Jacob Sullum points out at Reason. “Depending on who happens to be in power, legislators might enact Bouie’s policy agenda, or they might endorse torture, approve warrantless searches, abolish the presumption of innocence, close down newspapers that criticize them, or exclude immigrants based on their race.”

It’s a problem of power––Bouie is proposing to remove a significant check on its abuse.

His talk of government by unelected judges that would shackle the majority also elides the degree to which the progressive coalition favors many judicially imposed, antimajoritarian outcomes on a wide range of policy matters.

Trying to paint the court’s conservative majority in a negative light, Bouie complains that Chief Justice Roberts “dissented in the case that legalized same-sex marriage, voted to allow the death penalty even in cases where it might cause excruciating pain and suffering, and wrote the majority opinion upholding Trump’s travel ban despite its clear roots in the president’s anti-Muslim bias.”

But Roberts grounded these opinions in democratic concerns. In the case that legalized same-sex marriage, Roberts’s dissent complained that the Supreme Court was “stealing the issue from the people,” and that the majority’s opinion used judicial review to overturn duly enacted laws in states including Michigan, Ohio, Kentucky, and Tennessee.

In the death-penalty cases, Bouie wanted the court to use judicial review to overrule state laws, prohibiting some executions regardless of the democratic will.

Americans were fairly evenly split on the travel ban—depending on the wording used in each poll. Bouie wanted the court to prohibit its implementation through judicial fiat.

The Supreme Court ought to thwart the will of democratic and legislative majorities by fiat whenever a law or an action violates the Constitution. Justices will not always interpret the Constitution correctly, of course. Judicial review has led to wrongheaded results in the past and will again in the future. But the check it imposes on the tyranny of majorities is indispensable.