Opinion | The Surprising Reason We’re Fighting Over the Supreme Court — and How to Fix It

0

Of all the statements Amy Coney Barrett made during her confirmation hearings, her uncontroversial characterization of Marbury v. Madison may offer the sharpest insight into the political wars over the Supreme Court. Responding to a question about precedents, Barrett described the Supreme Court’s 1803 decision in Marbury as one of seven “super precedents” — decisions so well established that “no one questions [it] anymore.”

But maybe we should.

Every American history student learns that Marbury v. Madison established the Supreme Court’s authority to invalidate a law it deems incompatible with the Constitution, a power referred to as judicial review. The textbooks tend to present Marbury as a morality play where Chief Justice John Marshall is the hero, Congress is the villain, and the judiciary emerges as the avatar of the Founding Fathers, fiercely defending the Constitution against incursions by legislative barbarians attempting to dismantle the architecture of American democracy.

This depiction of Marbury lionizes a power grab that has enabled the Supreme Court to function as the oracle of the Constitution for over 200 years. In recent decades the Supreme Court has wielded its authority as the ultimate decider of constitutionality with troubling frequency, dictating the federal government’s approach to a wide array of social policy issues like abortion and gay marriage that fuel the country’s partisan divides.

The only thing more extraordinary than Marbury’s durability over more than two centuries is its status as holy writ. Nothing in the Constitution gives the Supreme Court the power of judicial review or implies that the Court should be the ultimate decider of which laws are constitutional. The Founders who advocated judicial view famously perceived the judiciary as the “least dangerous” branch of government; they believed it could do little to influence executive or legislative activity and would channel the will of the people more faithfully than the other two branches. This vision of the Supreme Court differs so dramatically from the modern reality that the original case for judicial review — crystallized by Alexander Hamilton in Federalist No. 78 — actually undercuts the rationale for judicial review today.

But the debate over Marbury shouldn’t be waged on historical grounds. Our recent history suggests that the Supreme Court’s primacy on constitutional questions isn’t just a byproduct of Congress’s disorganization—it contributes to the deterioration of the legislative process and the erosion of norms and restraints in the executive branch. If so, the prevailing consensus is backwards—the Supreme Court isn’t too powerful because Congress is too ineffective; Congress is ineffective in part because the Supreme Court is too powerful.

Now, with the Court at the epicenter of a renewed national debate over America’s political dysfunction, we have a window of opportunity—the first in nearly 220 years—to freshly examine the history, impact and continued viability of Marbury. The health of our democracy may depend on it.

The story of Marbury is worth revisiting: William Marbury was a judge appointed by outgoing President John Adams and confirmed by the Senate on the last day of Adams’s presidential term. James Madison, the Secretary of State for new President Thomas Jefferson, tried to nullify the appointment by refusing to give Marbury his commission. Marbury sued, asking the Supreme Court to order Madison to deliver the commission.

The Supreme Court resolved the dispute in a nuanced way. It ruled that while Marbury was legally entitled to his commission, the Court couldn’t remedy the injustice because the law authorizing courts to issue the order violated the Constitution. The decision was clever. Its reasoning appeased the Federalists loyal to Johns Adams, while the result enabled the Court to avoid staking its legitimacy on President Jefferson’s willingness to comply with an order he was bound to find repugnant. Most importantly, Marbury announced that federal courts were authorized to interpret the Constitution as necessary to assess the validity of the laws bearing on a specific dispute.

Marshall may have adamantly believed that the Supreme Court needed the power of judicial review, but the early history of its use suggests otherwise. After Marbury the Supreme Court didn’t invalidate another federal law until 1857, when it infamously used Marbury to strike down the Missouri Compromise in Dred Scott — a decision that eliminated the possibility of citizenship for many Black Americans and is widely considered the worst decision in the Supreme Court’s history. The Supreme Court’s trend of diminished deference to Congress — which continues to reach new heights — is often traced back to Dred Scott.

If Marbury is untouchable, it must be because judicial review is either mandatory, indisputably beneficial, or there’s no alternative. But none of these suppositions withstand scrutiny. Judicial review is not enumerated in the Constitution, there’s substantial evidence that it’s harmful, and removing our blinders reveals other alternatives. If this seems heretical, it’s because we’ve become so accustomed to judicial review that we’re desensitized to the peculiarity of giving judges the final word on what the Constitution means.

We can reorient our perspective by imagining the bizarre results this authority could produce in other contexts — like a chair umpire in tennis spontaneously decreeing that singles players can hit the ball in the doubles alley, or a panel judging a gymnastics floor exercise inventing a new deduction to penalize gymnasts for an unpopular choice of music. Or, to invoke Chief Justice John Robert’s comparison of justices to umpires who “call balls and strikes,” Marbury-like powers vest umpires with absolute discretion to manipulate the contours of the strike zone during the same game, inning, or at-bat—or even move the strike zone to right field.

The Framers didn’t withhold judicial review from the Supreme Court by mistake. The Constitution reflects that the duty of courts is to resolve disputes by applying the rules as they exist — not to reshape the body of rules that bear on a dispute by second-guessing the legality of laws properly enacted by Congress.

The trick the Supreme Court pulled in Marbury was convincing the country that judicial review flows inexorably from the Constitution’s status as “law” subject to the interpretation of courts. Of course, deferring to Marbury and other Supreme Court decisions on the validity of judicial review is like giving the Army carte blanche to define the responsibilities of the Navy and Air Force — the innate conflict of interest is almost certain to produce a result that isn’t optimized for the military as a whole.

A more impartial reading of the Constitution reveals a framework that obligates each political branch to safeguard the law in different but equally important ways. Few would argue that we should promote the president to monarch by making the executive branch the ultimate decider of constitutionality. But nothing inherent in the exercise of judicial power as opposed to legislative power endows either the Supreme Court or Congress with the superior claim to constitutional review authority.

Judicial review enables courts to act as a check on the legislature by restraining Congress’s power to enact laws inconsistent with the Constitution. Applying the same logic, Congress can make the equally compelling argument that “congressional review” would allow the legislature to act as a check on the judiciary by preventing courts from reaching outcomes that violate constitutional rights and requirements (like a decision refusing to halt an execution that violates the Eighth Amendment ban on cruel and unusual punishment).

Our dependence on judicial review levies a high toll on the country by negating Congress’s ability to speak with authority on constitutional questions. Recent history demonstrates that the judiciary lacks the power to meaningfully restrain presidents who press or exceed the limits of their authority. The result is that foundational constraints on executive power — expressed or implied in provisions like the Foreign Emoluments Clause, the Pardon Power, the Appointments Clause, and the Take Care Clause — basically go unenforced.

Our inability to police the limits of executive power exposes the central fallacy of judicial review — its underlying assumption that litigation should be the exclusive vehicle for formally raising and resolving constitutional questions. This custom is highly problematic. It precludes the consideration of a broad swath of constitutional questions that don’t naturally arise in the context of a lawsuit, or that tend to be raised in disputes that federal courts are unwilling to adjudicate. This latter category includes “political questions” such as the relationship between the president and Congress, as well as challenges to acts and policies that impact all Americans similarly (through adverse effects like harm to the environment) or cause injuries that are speculative or difficult to establish (like privacy intrusions resulting from law enforcement or national security activities). Constitutional questions processed through the federal court system may take years to resolve or culminate in relief intended to compensate the aggrieved party rather than cure the constitutional defect.

More fundamentally, it’s unclear that the nation is well served by a system that allows self-interested litigants to control the agenda for constitutional review, while precluding elected officials from managing constitutional concerns that emerge in legislative, regulatory or oversight contexts.

If the price we’re paying to accommodate judicial review is too high, a feasible solution is to transfer powers of constitutional review to Congress and establish the practice of “congressional review.” Marbury created judicial review with the stroke of a pen; congressional review would require the equivalent of two pen strokes — essentially, a decree (not a law) passed by each chamber. In theory this authority could be shifted from the judiciary to Congress without a constitutional amendment or even the president’s signature — Congress simply needs to stake its claim.

Congressional review could follow several models that fall on a continuum between power sharing and congressional preeminence. Each model presumes a commitment by Congress not to retroactively invalidate existing Supreme Court decisions absent extraordinary circumstances.

On the less disruptive end of the spectrum is the idea of “congressional override” — the functions of Congress and the judiciary would remain essentially unchanged, but Congress could override a determination that a law was unconstitutional with a vote in both chambers that meets a predetermined threshold. There would be a natural logic to requiring a two-thirds majority, the same margin required to overrule a presidential veto or propose a constitutional amendment. If Congress overrides the court’s decision, the court must presume the constitutionality of the law and render a new decision from that baseline.

On the more disruptive end of the spectrum is “congressional preeminence” — the possibility that properly enacted federal statutes would be immunized from judicial review and Congress could exercise its own plenary review powers, including the power to raise and resolve the constitutionality of executive actions, state laws, and the final decisions in state and federal cases. These authorities would have to be used judiciously and regulated carefully, but they could be exercised without a constitutional amendment.

Marbury is an integral part of our history, and it could be an important part of our future. But first we have to acknowledge that judicial review is fundamentally a choice, not a foregone conclusion—and act accordingly.

Like other weighty decisions, the future of judicial review should be informed by vigorous debate, a thorough examination of the relevant empirical data, and an open-minded investigation into potential alternatives. If we decide to ratify and reboot judicial review at the end of this process, its use should be conditioned on terms the Supreme Court negotiates with the other two branches — an overdue step that could revitalize the whole federal government.

Whatever the outcome, the days of hovering on pins and needles for the Court to doom or spare major legislation like the Affordable Care Act should be over. It’s time to usher in a new era that demands and celebrates a more collaborative partnership among the three political branches.

Reconsidering Marbury is a good place to start.

Jonathan Fischbach is a lawyer at the U.S. Department of Defense. The positions expressed in this article are the author’s personal views, not the positions of any federal agency or the United States government.

View original post