The Institution of the Judiciary and Judicial Review, American Democracy’s Lifeline
Until recently, the social and political institutions of the United States long enjoyed, largely, the respect and the fealty of its citizenry. Though their raison d’etre vary, our institutions – our schools, houses of worship, courts, legislatures and more – all serve a common and fundamental function. They facilitate the conduct of orderly and rational discourse aimed at achieving consensus of purpose, in, importantly but not exclusively, matters of education, worship, governance, and commerce. Plainly, however, institutions do not guarantee discourse having such quality and effect. That depends, instead, on the character of each institution’s members. Given their essential function and the vital purposes, how is it that our most important institutions, those of government, have fallen so far in function and repute? Certainly bearing responsibility, at the federal and even state levels, has been the Supreme Court’s insensitivity to, if not abdication of, the unique position it occupies to protect our democratic form of government, which judicial proclivity is the subject of this post. We start first, though, with some political theory.
The Great Debate[1] is a tour de force of the competing writings of two of history’s greatest political thinkers, contemporaries Edmund Burke and Thomas Paine. It explores not just the birth of the political right and the left and the divide between them but also highlights the tension between the roles of institutions and the individual in achieving the common and moral good.
Paine argued that because all government institutions are initiated by the actions of individuals, the legitimacy of any such institution must depend on its furtherance, equally, of the welfare, rights and privileges of individuals. Such institutions, if they are to endure, must always assure these individual entitlements vouchsafed by so-called natural law. “Most modern commentators agree that the American founders were firm believers in natural law and sought to craft a constitution that would conform to its requirements, as they understood them, and embody its basic principles for the design of a just political order.”[2] The opening words of the Declaration of Independence likewise reflect such natural law thinking: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
For Paine, revolution was the natural endgame of failed institutions. Burke, however, according to Paine, limitlessly exalted the positive law of majoritarian institutions over the individual, leaving the individual, Paine believed, potentially exposed to the injustices of corrupt regimes.[3] Burke, to be sure, was mindful of human imperfection and its failings, but, in his view, political institutions were the protection from this, for, he maintained, such institutions inherently evolved and endured, on to ever higher orders of political perfection, despite the travails wrought by human failings. Political institutions were, therefore, paramount relative to the views of the individual, however rational and considered, and their preservation a necessity. According to Burke, “[a] government does not derive its legitimacy by beginning from the proper principles, drawn from nature. Instead, government develops through time along lines that serve the needs and well-being of the people and therefore point toward some natural idea of the good.”[4] One could say that the transition from the Articles of Confederation to the Constitution exemplifies such development. The Founding Fathers proffered and the nation’s citizens adopted the Constitution “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”[5] For Burke, in short, revolution was anathema. Evolution, not revolution, determined the proper development and source of authority.[6]
Lines of thought like Paine’s and Burke’s both significantly informed this nation’s three organic documents, the Declaration of Independence, the Constitution and the Bill of Rights. Indeed, despite its Preamble’s Paine-like exaltation of natural law, the Declaration, later in its text, admonishes, Burke-like: “Prudence … will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
Paine and Burke lines of thought, however, do not in equal measure characterize, as constituted or in operation, each of the three branches of American government, the Congress, the President and the Supreme Court, each institutions themselves. More Burke-like in nature, both Congress and the President are directly responsive, at least in design and relative to the Supreme Court, to majoritarian will. By contrast, the Supreme Court is neither by design nor in operation immediately responsive to the will of the people. Instead, in keeping with the principles of natural law, the Court’s determinations are more Paine-like, the product of rational and individual deliberation, rather than the positive law of majoritarian determinations. This is not to say, however, that natural law allows the Court broadly to assess the validity of positive law according to its own reasoned discretion but only that, in construing the Constitution and measuring positive law against it, natural law or at least its method should and, indeed, was intended to inform the Court’s deliberations.[7]
Put otherwise, though established through the majoritarian processes that ratified the Constitution, the Supreme Court itself is not or, at least, is not constituted as and does not function as a majoritarian institution, intended to ascertain and act in accordance with majoritarian desires. In fact, years before Marbury v. Madison,[8] the case in which Chief Justice Marshall made judicial review expressly and formally an element of federal judicial power, Alexander Hamilton clearly maintained that one important purpose, if not the most important purpose, of the federal judiciary, is to provide a check against majoritarian actions contrary to the Constitution. The Constitution, being the pact of all citizens, was, according to Hamilton, law superior to any actions or enactments of Congress or the President.[9] Thus, Hamilton wrote in The Federalist Papers:
By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.[10]
In other words, though placing the nation’s lot and its citizen’s liberty in democracy’s hands, the Founding Fathers had no illusions about the infallibility of democratic forms of government and their majoritarian institutions. Upon the conclusion of the Constitutional Convention, Benjamin Franklin is reputed to have advised that the Founding Fathers offered to the nation “a republic, if you can keep it.” Hamilton, too, noted the Judiciary’s need “to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which … have tendency … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”[11]
Indeed, democracy’s infirmity, in the hands of the very majorities to which it nonetheless owes its existence, has been a concern of which national leaders have never lost sight. As Judge Learned Hand observed in the midst of World War II:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. … [Liberty] is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few.[12]
So much do Judge Hand’s words ring true in the traumatic and disappointing shadow of recent events. As Franklin, Hamilton and Hand adumbrated, though American democracy is not yet on death’s doorstep, its substantial and ominous degradation over recent history cannot be gainsaid, particularly for the institutions of Congress and the Presidency.[13] Congress is dysfunctional, paralyzed by entrenched power, political cowardice and unparalleled irrationality and hypocrisy. One side of the aisle is bullied by the shadow of a defeated and disgraced demagogue, and the other diffident in defense of democracy’s core value, the precious right and unfettered privilege to vote. As for the Presidency, the Electoral College now looms largely and, in 2000 and 2016, successfully in the way of election by truly representative, that is, democratic voting.[14]
Even the Supreme Court has had its own hand in battering the guardrails of democratic government, despite being positioned and appointed by the Constitution and the political theory that informed the Constitution to protect democracy. In Citizens United,[15] the Court, by a bare 5-4 majority, blew wide open the door to big money in politics, holding that the Bipartisan Campaign Reform Act’s prohibition of all independent political expenditures by corporations and unions violated the First Amendment’s protection of free speech. Yet, in other cases, notably Buckley [16]and Elrod,[17] the Court had upheld alleged infringements on speech for the sake of advancing competing and compelling interests furthering democratic principles. In Shelby,[18] the Court unusually indulged its own fact finding to gut, again 5-4, the Voting Rights Act of 1965 as beyond Congress’s powers to enforce the Fourteenth and Fifteenth Amendments. Now, we are drowning in the deluge of antidemocratic voting legislation of which Justice Ginsburg warned in her Shelby dissent.[19] Finally, in Rucho,[20] the Court ruled, 5-4, barely again, that constitutional challenges to partisan gerrymandering were not justiciable, regardless of how much that insidious practice entrenches power in one political party or another and even though the judicially manageable standards upheld for assessing the validity of racial gerrymandering were and are transferrable to assessing partisan gerrymandering.
Increasing distortion of truly representative election results continues to be the common contribution of each of those narrowly decided decisions to the erosion of democracy. Citizens United has permitted wealth grossly to distort political influence at the ballot box. Shelby leaves even blatant and brazen voter suppression unbridled, crippling potential legislative and judicial remedies. Rucho leaves untouchable the substantial entrenchment of distorted voting power, already achieved through years of plainly unconstitutional partisan gerrymandering likely to be pursued in years to come.[21]
Nevertheless, the federal judiciary is uniquely positioned and constituted to address executive and legislative political actions on both the federal and state levels that would erode the representative function of democratic government and defeat democracy itself. The “legislative” history of the Constitution is clear that the judiciary was, moreover, anointed to do precisely that. In arguing for the permanency of federal judges in office, Hamilton presupposed the Judiciary’s imprimatur to protect, Paine-like, democracy from its own defects:
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
… [I]t is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.[22]
Insulated and intended to be insulated from direct majoritarian sway, and constituted as an institution able, in keeping with natural law thinking, to reach decisions based on rational and deliberative thought instead of mob instincts, the judiciary is best situated to protect democratic principles.
That said, the Constitution, of course, is not a license for the Supreme Court to repair or replace all of the worn out or malfunctioning parts of government. The filibuster and, for presidential elections, the role of the Electoral College are, for example, beyond the Court’s reach.[23] The corrosion of democracy that they allow, however, would be blunted by robust protection of the right to vote against federal and state legislative and executive encroachment, allowing the achievement at the ballot box of results that are truly representative of the nation’s citizenry, results that are not merely formally majoritarian but truly democratic.[24] These times for the crucial and vital right vote are more perilous now than they have ever been, though for protection of the vote, the Constitution leaves the Court amply armed.[25]
The Founding Father’s plainly sanctioned the judiciary’s duty to protect democracy, not its retiring reliance instead on political institutions to correct much of what those institutions themselves have wrought: the malignancies of voter suppression and partisan gerrymandering. Though one guiding and, in many respects, prudent principle of the Supreme Court, mindful of its own non-majoritarian character, has been assiduously to defer to the political institutions in matters of government, that deference is hardly warranted where the character of those institutions is currently democratically dysfunctional and the corruption of their democratic nature has been allowed to occur, indeed, been facilitated, by the Court itself on its assigned watch. It was once and is now and again said that the Supreme Court is not final because it is infallible; it is infallible only because it is final.[26] The onslaught of voter disenfranchisement legislation and expediently drawn legislative districts, as well dark money, will be relentless, unless the Court, within its powers, acts with finality against these blatantly and shamelessly antidemocratic and unconstitutional threats. If it does not, the Court, measured against its recent disregard for democratic government, will become even more fallible than it has been and, worse potentially, American democracy failed.
[1] Yuval Levin, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of the Right and Left (2014).
[2] Robert P. George, Natural Law, the Constitution, and the Theory and Practice of Judicial Review, 69 Fordham L. Rev. 2269, 2269 (2001).
[3] As used in this post, “majoritarian” and “majoritarian determined” are not the equivalent of “democratic” or “democratically determined.” The former refer merely to a formal majority, however unrepresentative of the relevant electorate. The latter refer to matters that are truly representative of the relevant electorate.
[4] Levin, supra n.1, at 53.
[5] U.S. Constitution, Preamble.
[6] The source of the law that is supreme – in the sense that it is binding on the conduct of citizens of a nation and their government – is vastly different between Paine and Burke. For Paine, it is natural law, law rationally determined by the objective of satisfying that which fairly and justly furthers fundamental human needs. For Burke, it is positive law, announced by the highest institutional authority of government. That is not to say that Burke rejected notions of the moral, as contrasted with the received, legitimacy of law. A law could be assessed, according to Burke, as moral or immoral, but obedience vel non to law was to be determined within the framework of political institutions, within government. See generally Levin, supra n.1, at 72-77.
[7] To be sure, popular will is tenuously mediated to the Court through the President, by the President’s irregularly occurring opportunities to nominate justices, and through the Congress, by the Senate’s advise and consent power to confirm or reject judicial nominations, by Congress’s power to impeach judges, and by Congress’s power to determine the number of justices seated on the Court. To a limited degree and still indirectly, the Court is also mindful of popular sentiment, lest its de facto legitimacy long term be depreciated or jeopardized by decisions and decisional doctrines important to public sentiment but significantly contrary to that sentiment. The demise during the last century and within the Court’s decisions of Lochnerian jurisprudence is perhaps the best example of this.
[8] 5 U.S. 137 (1803).
[9] The Federalist No. 78 (Alexander Hamilton). The Supremacy Clause, U.S. Const., art. VI, establishes the Constitution and federal laws and treaties as the “supreme Law of the Land” but does not expressly provide for what law, among that body of federal laws, is supreme.
[10] The Federalist No. 78 (Alexander Hamilton); see also United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (“It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation … or whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”). Though the power of judicial review is firmly established in constitutional law, unresolved, perhaps forever, is the extent to which the judiciary may impose limitations on positive law and official conduct not significantly anchored by meaning or inference in the constitutional text but in the name, nevertheless, of the Constitution. See Lawrence v. Texas, 539 U.S. 558 (2003) (opposing viewpoints of Justices Kennedy and Scalia); Griswold v. Connecticut, 381 U.S. 479 (1965) (opposing viewpoints of Justices Douglas and Black); Calder v. Bull, 3 U.S. 396 (1798) (opposing viewpoints of Justices Chase and Iredell). For an insightful and convincing commentary that constitutional law, in practice, has often showed substantial departure from, if not disregard for, the constitutional text, see David A. Strauss, Does the Constitution Mean What it Says, 129 Harv. L. Rev. 2 (2015).
[11] The Federalist No. 78 (Alexander Hamilton).
[12] Learned Hand, “The Spirit of Liberty” (New York, New York, May, 21 1944).
[13] For a compelling and comprehensive exposition of that degradation and the Supreme Court’s role in it, see Michael J. Klarman, The Degradation of American Democracy – and the Court, 134 Harv. L. Rev. 1 (2020).
[14] Although Democratic presidential candidates won the popular vote in 2000 and 2016, Republican candidates won the Electoral College and the Presidency. And even though the Democratic candidate, President Biden, won the popular vote in 2020 by a wide margin, if one looks just at the states that put Biden over the top in the Electoral College, Arizona, Georgia and Wisconsin, he won by a total of less than 45,000 votes, fewer votes than the 78,000 by which Trump won in 2016, with Michigan, Pennsylvania and Wisconsin.
[15] Citizens United v. FEC, 588 U.S. 310 (2010).
[16] Buckley v. Valeo, 424 U.S. 1 (1976).
[17] Elrod v. Burns, 427 U.S. 347 (1976).
[18] Shelby County v. Holder, 570 U.S. 529 (2013).
[19] Id. at 590 (“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”). See Zachary Roth, The Assault on Voting Is an Assault on Democracy, Brennan Center for Justice, Apr. 26, 2021,
https://www.brennancenter.org/our-work/analysis-opinion/assault-voting-assault-local-democracy.
[20] Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484 (2019).
[21] The Supreme Court ruled in Davis v. Bandemer, 478 U.S. 109 (1986), that partisan gerrymandering could raise constitutional issues. In Rucho, the Court said it could do nothing about the practice because it claimed to lack judicially manageable standards for deciding in what circumstances the effects of such gerrymandering were unconstitutional. Rucho, 588 U.S. at ___, 139 S. Ct. at 2497, quoting Vieth v. Jubelirer, 541 U.S. 267, 296 (2004) (“The ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is ‘determining when political gerrymandering has gone too far.’”). By no means did the Court bless partisan gerrymandering as per se constitutionally acceptable.
[22] The Federalist No. 78 (Alexander Hamilton) (emphasis added).
[23] But see Petition for Certiorari, Rodriguez v. Newsom, No. 21-1100 (Oct. Term 2021, filed Feb. 5, 2021, response requested, Mar. 8, 2021) (seeking review on First and Fourteenth Amendment grounds of California winner-take-all Electoral College slates).
[24] Pending before the Supreme Court is decision in the case of Brnovich v. Democratic Nat’l Comm., No. 19-1257 (Oct. Term 2020, argued Mar. 2, 2021), a challenge to Arizona voting laws that openly target facilitation of voting in the state. See Sean Morales-Doyle, The Supreme Court Case Challenging Voting Restrictions in Arizona Explained, Brennan Center for Justice, Feb. 24, 2021, https://www.brennancenter.org/our-work/research-reports/supreme-court-case-challenging-voting-restrictions-arizona-explained.
[25] See, e.g., Rucho, 588 U.S. at ___, 139 S. Ct. at 2509-25 (Kagan, J., dissenting); Miller v. Johnson, 515 U.S. 900 (1995); United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977); Fortson v. Dorsey, 379 U. S. 433 (1965); Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 389 U.S. 186 (1962); Gomillion v. Lightfoot, 364 U. S. 339 (1960).
[26] Brown v. Allen, 344 U.S. 443, 540 (1953) (”We are not final because we are infallible, but we are infallible only because we are final.”) (Jackson, J., concurring).
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