Copyright (c) 1998 First Things 89 (January 1999): 13–19.
The past half–century has witnessed the rise to prominence of a constitutional theory that gives the U.S. Supreme Court a virtual monopoly in American constitutional law. This theory grants the Court conclusive authority to determine the meaning of constitutional provisions—even those that empower the other, supposedly coequal, branches of the national government. The theory has become so prominent that no serious discussion of the United States Constitution can proceed without acknowledgment of the fact that the Court is now regarded by almost everyone to be the primary guardian of our fundamental law. The theme is echoed in scholarly books and articles, in the casebooks we use to train lawyers, in the political science textbooks we use to train citizens, in the councils of government, in the media, and even in the streets.
The Court’s monopoly in constitutional law rests largely upon two kinds of argument. The political argument holds that judges must control the Constitution to protect individuals and groups from the tyranny of the majority in the legislatures. The legal–historical argument asserts that judicial supremacy in constitutional matters is grounded in American constitutional history and justified in Supreme Court doctrine, especially in the landmark case of Marbury v. Madison (1803).
The Court’s constitutional hegemony, coupled with the extension of federal equity powers that has accompanied it, has created an environment in which federal courts in the most fundamental ways control the activities of coordinate agencies in the national government, the states, local governments, and many quasi–public and private organizations. In some instances, judicial supervision has penetrated so deeply as to affect the micromanagement of daily operational details for extended periods of time. As Robert F. Nagel describes it:
This unprecedented use of judicial power is not a response to specific and limited necessity or emergency. The power is exercised in every state and on a wide variety of social issues. Even a relatively "conservative" Supreme Court seems transfixed; recent decisions, such as those dealing with the legislative veto and political gerrymandering, illustrate the Court’s continuing insistence that almost no public issue should be excluded from judicial oversight. Heavy reliance on the judiciary—in various ideological directions—is fast becoming an ingrained part of the American system; already it is difficult for many even to imagine any alternative.
Similar concerns were echoed in the November 1996 First Things symposium on American democracy and the courts, even to the point of suggesting that our constitutional order is now threatened so profoundly by judicial usurpation that conscientious citizens may begin to wonder about the extent of their political obligation.
In the academy, judicialization has turned virtually all discussions about the Constitution into discussions about the role of judges in its interpretation. Soterios Barber, one of the few contemporary constitutional theorists who has tried to establish that the Constitution and constitutional law are two different things, nonetheless suggests that the most important job of "mainstream scholars" is to justify "a strong and unapologetic exercise of judicial power in constitutional cases." Michael Perry says that in our society, where "it is axiomatic that the judiciary should enforce the Constitution, the choice among competing conceptions of the Constitution is . . . precisely a choice among competing conceptions of judicial role. In resolving the question how to conceive of the Constitution, we are resolving the question what role the judiciary should play. In that sense, the two questions are really one question: What conception of ‘Constitution/judicial role’ ought we to choose?" Mark Tushnet, who sees judicial review as an "all or nothing" proposition, states: "Either one allows judges to do whatever they want or one allows majorities to do whatever they want. Either choice is deeply anticonstitutional—which means, I suppose, that constitutionalism is self–contradictory."
Here, then, are three of our nation’s leading constitutional thinkers declaring respectively: 1) that the main job of constitutional scholars today is to justify judicial activism (not to understand the Constitution); 2) that in our system, the word "Constitution" really means "judicial role"; and 3) that constitutionalism is "anticonstitutional," or "self–contradictory." Constitutionalism may be a contradiction under any regime in which judicial review is "all or nothing," but judicial review is "all or nothing" only under a theory of judicial supremacy. If judicial supremacy is incompatible with constitutionalism, why shouldn’t we just get rid of it and keep the Constitution and its more modest version of judicial review?
Before the Civil War all three branches of the federal government—Congress and the President as much as the Court—interpreted the Constitution. The great debates in Congress were over the meaning of important constitutional provisions. The antebellum congressional record is filled with speeches asserting the legislators’ duty to interpret the Constitution rightly and in accordance with accepted canons of construction. In the 1790s, debates in Congress on the meaning of key provisions in Articles I, II, and III shaped the contours of the federal government for a century–and–a–half. At the same time, early presidential vetoes of congressional acts were exercised almost solely on constitutional grounds, and most of these were accompanied by explicit, uncontested assertions of executive authority to interpret the fundamental law. The doctrine of political questions, weakened today, was quite widely held in the nineteenth century. Under this doctrine, the Court abstains from deciding constitutional issues for which there are insufficient judicial precedents, that are textually committed to Congress or the President, or that are of an essentially "political" character. This doctrine, first suggested by the Marshall Court in Marbury v. Madison, was an early legal expression of the fundamental truth that not all constitutional problems are appropriate for resolution by courts.
After the Civil War the courts did become more aggressive in challenging laws believed to be constitutionally infirm, but the Supreme Court itself did not claim "finality" or conclusiveness for its own constitutional interpretations until 1958. Likewise, the Court made no assertion of power to control the boundaries of constitutional authority assigned to other agencies of government until the late nineteenth century, except in a narrow range of cases that will be described below.
Thus the origin of modern judicial supremacy in constitutional law can be found neither in the Constitution nor in its early judicial application. Tocqueville’s famous aphorism according to which all political questions sooner or later develop into judicial ones described a feared tendency rather than a reality. So had the earlier arguments of the Antifederalist Brutus. Brutus clearly saw vast potential for expansive judicial development in the 1787 Constitution, but his worst fears did not materialize until a century later. When Jeffersonian Republicans and Jacksonian Democrats launched early attacks on the Court, they did so on the basis of a widespread belief that congressional or presidential interpretations of the Constitution were entitled to as much respect as those of the Court.
During the last forty years, however, the Supreme Court has—with increasing frequency, intensity, and success—pressed its claim to be the primary, even exclusive, organ of constitutional interpretation in the United States. The first assertion of this claim came in 1958, in Cooper v. Aaron (the Little Rock school desegregation case). The Court declared the federal judiciary to be "supreme in the exposition of the law of the Constitution," effectively equating the Court’s own interpretations with the Constitution itself. The legal peg supporting this maneuver was the Court’s assertion that its own constitutional rulings possessed status as the "supreme law" under Article VI, alongside constitutional provisions, national laws, and federal treaties. The Cooper Court also wrongly cited Marbury v. Madison as precedent for its newly discovered "ultimate" interpretive authority. Because of the Cooper decision and its more recent progeny, many have come to believe that in Marbury the Court really had declared itself the primary organ of constitutional interpretation. This belief is a useful fiction for a Court determined to establish its own constitutional hegemony, for it allows the Court to claim the support of the great Chief Justice John Marshall for its assertion of power. Such doctrinal support is essential in a legal system with common law roots and stare decisis pretensions.
But as the Court’s own record of precedents demonstrates, its post–1958 conception of American constitutional history is fundamentally wrong. A limited form of judicial review was already established by 1800, but only for relatively "clear cases." Marbury did not alter this, but rather established a clear precedent for the Court’s power to disregard congressional laws in cases "of a judiciary nature"—cases in which judicial functions were threatened by application of a questionable statutory provision. Marbury established only that the judiciary would play an important role in constitutional interpretation, not that it would play the ultimate role. After Marbury the Court did not invalidate another act of Congress until Dred Scott v. Sanford in 1857. It would not cite Marbury in support of any kind of constitutional judicial review until the 1880s, and not in support of broad–gauged review until the 1950s.
Since the decision in Cooper v. Aaron, the Court has used Marbury to support its constitutional hegemony at least ten times, most recently in City of Boerne v. Flores (1997). There, the Court invalidated a provision of the Religious Freedom Restoration Act of 1993 (RFRA) that attempted to restore the "compelling interest" standard in First Amendment free exercise cases that the Court had declined to apply in Employment Div. v. Smith (1990). In promulgating RFRA, Congress relied upon its authority to "enforce, by appropriate legislation," the provisions of the Fourteenth Amendment, which, by judicial ruling, applies the First Amendment’s Free Exercise Clause to the states. But the Court held in Boerne that the congressional enforcement authority is only "remedial," not "substantive"; and thus that Congress is forbidden to determine "the substance of the Fourteenth Amendment’s restrictions on the States," or to enact legislation that "alters the meaning of the Free Exercise Clause" by determining "what constitutes a constitutional violation."
It is difficult to see how Congress can "enforce" the Constitution without being able to "determine what constitutes a constitutional violation." For this essay, though, the important point is this: RFRA can be said to have altered the meaning of the Free Exercise Clause only because in Cooper v. Aaron the Court had put its own "interpretations" on a par with the Constitution itself. According to the logic of Cooper, the Court’s decision in Smith about the meaning of the Free Exercise Clause actually is the Free Exercise Clause. In Boerne, not content to rest upon this claim alone, the Court, for the first time ever (so far as I know), explicitly denied the authority of Congress to interpret the Constitution with any conclusive effect, or to define its own powers in accordance with it.
Thus the Boerne Court, in spelling out the full implications of Cooper’s "final interpreter" doctrine, appears to have brought the development of judicial supremacy to completion. Modern judicial review affords the Supreme Court ultimate freedom to strike down laws merely because the Justices believe those laws to be inconsistent with the Constitution, no matter what the constitutional issue involved, and no matter how clearly the Constitution assigns authority to another branch of government. Coordinate agencies of government, the policies of which are defeated by the Court, are then expected to march to the Court–imposed drumbeat, even to the point of conforming future policy choices to judicial preferences.
It has not always been so. Nowhere is this better shown than in the Court’s historical treatment of the Marbury case—the very case misrepresented in Cooper and Boerne to support constitutional judicial supremacy. Marbury involved a provision addressed directly to the Court—Article III’s original/ appellate jurisdictional distribution—while Boerne involved the Fourteenth Amendment, whose enforcement provision is directly addressed to Congress. Marbury contains no assertion that the Court has exclusive authority to bind other parts of the government. Chief Justice Marshall claimed only that the Court must obey explicit commands of the Constitution in preference to conflicting laws when such commands are directed at the Court itself and not to another branch of government.
The Court’s own treatment of Marbury as a precedent throughout most of its history shows that this narrow reading of the case is accurate. In my book Marbury v. Madison and Judicial Review (1989), I surveyed all the Court’s citations of Marbury from 1803 through 1983. I have since updated the references through 1997. Here is what I have found: Between 1803 and 1997, Marbury was cited in 201 separate opinions by Justices of the Supreme Court. From the beginning to 1865, Marbury was cited twenty–five times—and only to support narrow rulings on the circumstances in which the Court’s original or appellate jurisdiction could be invoked (eighteen times), or on the remedial tools to be employed in the respective jurisdictions (seven times). (The technical issue in Marbury was the appropriateness of the Court’s using the common law writ of mandamus to compel the Secretary of State—James Madison—to produce evidence that William Marbury had been appointed justice–of–the–peace for the District of Columbia.) The Court’s power to invalidate laws was mentioned in none of these cases; and surprisingly, Marbury was not mentioned in Dred Scott v. Sanford, the only other case before the Civil War in which the Court invalidated an act of Congress.
In the thirty years following the Civil War, a period in which the Court invalidated national laws in no fewer than twenty cases, Marbury was mentioned in none of them. When Marbury was cited, it pertained mostly to jurisdiction or mandamus. It is during this period, however, that Marbury was first cited in support of judicial review, though not to support court review of an act of Congress. Instead, the citation, in Mugler v. Kansas (1887), was offered in justification of judicial authority to overturn state laws on substantive due process grounds. It was not until the Income Tax Cases in 1895 that the Court for the first time cited Marbury in support of its power to determine the constitutionality of national laws, confining the reach of that authority to "clear" or "proper" cases.
Between 1895 and 1957, the Justices cited Marbury thirty–eight times, but only eight of those citations pertain to the judicial power to invalidate laws, and all eight describe the power in a very narrow or restrictive way. Six are offered in support of the idea that judicial review should be confined to "clear" or "proper" cases, to "cases or controversies," or to cases in which literal interpretations of the Constitution are possible. One notes a petitioner’s argument that Marbury forbids executive invasions of "the judicial sphere." Another mentions Marbury as one of a long line of cases in which legislation was declared unconstitutional "because it imposed on the Court powers or functions that were regarded as outside the scope of the ‘judicial power’ lodged in the Court by the Constitution."
Although the Court began to notice Marbury’s judicial-review holding during the first half of the present century, it fully recognized the highly restrictive nature of that holding. All told, of the eighty–eight citations of Marbury by Justices of the Supreme Court between 1803 and 1957, only ten refer to the part of the opinion concerning the judicial power to invalidate laws. All ten of these references advance highly restrictive notions of the Court’s power. Nowhere can be found even so much as a suggestion that the Court is the final arbiter of constitutional questions. If Marbury really meant what the Cooper and Boerne Courts said it meant, why wouldn’t someone on the Court have said so during its first century–and–a–half of existence?
Everything changed in 1958. Over the next forty years, there were 113 separate citations of Marbury, greater than the total of the previous 154 years. During this period, Marbury was employed fifty–eight times to support judicial review, twenty–one times to justify sweeping assertions of judicial power, and ten times to support the idea that the Court is final or ultimate interpreter of the Constitution, with power to issue binding proclamations to any other agency or department of government respecting any constitutional issue. Cooper v. Aaron is the earliest case in the last–mentioned category, and Boerne is the most recent. If we take the Court’s own statements seriously, we must conclude that judicial supremacy originated neither in Marbury nor in the Constitution, but was established by the Warren Court and developed subsequently by the Burger Court. And if we take seriously the Court’s use of Marbury in the post–1983 era—particularly in the Boerne case—we must conclude that the Rehnquist Court is also doing its part to perpetuate the doctrine.
If the doctrine of judicial supremacy is not the correct understanding of the judiciary established in the Constitution, then what is? The best way to answer this question is to contrast the modern doctrine with its traditional counterpart as revealed in Article III of the Constitution, Marbury v. Madison, and the thought of the Framers.
Judicial review of national law in the U.S. is usually thought to be constitutionally grounded in the Article III, Section 2 extension of federal judicial power to cases "arising under" the Constitution, laws, and treaties. The exact language is this: "The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." The most explicit contemporaneous statement regarding the scope of this power is found in James Madison’s Notes on the Federal Convention. According to Madison, the Founders extended federal judicial power only after agreeing that the jurisdiction was to be "constructively limited to cases of a judiciary nature." This statement was clarified on June 17, 1789, amid congressional debate over the President’s removal power. There, Madison flatly denied the power of any branch of the national government (including the judicial) to "determine the limits of the constitutional division of power":
I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But, I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments. The Constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point. . . . There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent.
There can be little doubt about Madison’s meaning here. Among the "points which must be adjusted by the departments themselves" are all questions pertaining to "the limits of the constitutional division of power between the branches of the government." Since no single department "draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments," the Founders’ restriction of the "arising under" jurisdiction of federal courts to cases "of a judiciary nature" must be construed as a denial of the power of courts to issue final constitutional pronouncements in cases involving interpretations of the constitutional powers of coordinate agencies. Cases not of a judiciary nature that also arise under the Constitution are preeminently those that require determination of the constitutional authority of the legislative or executive branch. Appropriate cases for judicial review are those that do not require such a determination.
Under this view, it is only in cases that involve constitutional provisions directly addressed to the courts that the Supreme Court’s refusal to apply relevant law is necessarily final. In cases involving constitutional provisions addressed to other branches of government (e.g., the Article I, Section 8 "necessary and proper" clause), the Court may surely refuse to apply the law, but it may not do so with finality in the strict sense. Even though the Court’s decision may bind the parties in a particular case, Congress might nonetheless choose to disregard the Court’s constitutional ruling and provide for executive enforcement of the statute. Congress may even go so far as to utilize its power to regulate the Court’s appellate jurisdiction so as to discourage or prevent future appeals of the law’s constitutional validity. In such instances, it is the judgment of Congress, not of the Court, that will be "final." On the other hand, if the case involves a constitutional provision like the Sixth Amendment’s right to confront one’s accusers in a federal criminal trial, then the Court’s decision on the constitutional question will necessarily be final, since carrying on any federal criminal trial requires a court, and federal trial courts are bound by rulings of the Supreme Court.
Madison’s theory of review divides constitutionally defective laws into two categories: those instances where the unconstitutional law affects the function of the judiciary and those where it does not. The most obvious example of the former is an act which operates "unconstitutionally" on a court’s performance of its own duties; here judicial review is appropriate. In the other category, constitutional judicial review is inappropriate, because the performance of judicial duty in those instances is unaffected by the constitutional infirmity of the law. Taking Madison’s distinction seriously is thus fatal to any doctrine of judicial supremacy.
Ironically, Marbury v. Madison, the case most often cited to support judicial supremacy, is also the case that best illustrates Madison’s narrow theory of review. Enhancing this irony is the fact that the case involved Madison himself—albeit nominally—as a party. In Marbury, Chief Justice John Marshall, writing for a unanimous Court, held that a provision of the Judiciary Act of 1789 extending the Supreme Court’s original jurisdiction to all federal officials contravened Article III’s jurisdictional distribution (which restricted the Court’s original jurisdiction to cases involving "ambassadors, public ministers, consuls, and states"). Marbury is a case of judiciary nature in the pure sense because it involved not only constitutional and statutory provisions aimed directly at the Court, but also a constitutional provision which embodies a clear restriction on judicial power. The Court could not have applied the statute in Marbury without at the same time violating the Constitution. Moreover, the Court’s refusal to apply the law left the coordinate branches of government no alternative but to comply with its decision (i.e., to do nothing) because the Court, by enforcing a constitutional restriction on judicial power, essentially did nothing. Its decision therefore amounted to a "final," or "ultimate" interpretation of the Constitution.
If this sounds like a strange basis for judicial review, it should be remembered that virtually all exercises of review by courts in the early years of the American republic were of the Marbury type. That is, they involved courts resisting legislative attempts either: 1) to impose extra–constitutional duties on judges, as in the famous Correspondence of the Judges of August 8, 1793, where the Court refused to render an advisory opinion requested by the President and Secretary of State; or 2) to interfere with judicial procedure in ways unauthorized by the Constitution, as in the early cases involving the suspension of jury trials in New Jersey, Rhode Island, North Carolina, South Carolina, and Kentucky; or 3) to usurp judicial functions outright, as in the legislative usurpations via attainders and retroactive criminal laws in Virginia and Kentucky.
If one has trouble imagining judicial review so confined in its scope, it is probably because the modern American mind, conditioned by more than forty years of judicial supremacy, can hardly help but regard the judicial branch as a coequal partner in the public policy–making process. But it was to prevent such participation by judges in policy making that the Founders circumscribed the jurisdiction and power of courts so narrowly in the first place. And it was to prevent being dragged into such processes that early American judges strongly utilized the power of review to safeguard their independence, both by resisting legislative encroachment on legitimate judicial functions, and by refusing to intrude upon domains they (and the Founders) regarded as better left to others.
Marshall recognized this clearly in Marbury, drawing a sharp distinction between the issue of constitutionality and that of judicial review; that is, between (a) a law being a nullity due to its incompatibility with the Constitution, on the one hand, and (b) a court’s having the power to nullify such a law, on the other. In Marshall’s words, granting that "the Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts," does it nonetheless follow that an act, "repugnant to the Constitution, notwithstanding its invalidity, binds the courts, and obliges them to give it effect?" In answering this rhetorical question, Marshall expounded the theory of judicial function for which Marbury is justly celebrated:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.
Since these lines have been so frequently cited as precedent for a notion of judicial power that renders the Supreme Court ultimate arbiter of all constitutional questions, it is important to notice what is not said in them. No exclusive power to interpret the fundamental law is claimed for the Court here or anywhere else in Marbury. In fact, no judicial power to "strike down" laws at all is claimed—a fact recognized by the Court throughout the nineteenth century but now apparently recognized only by Justice Antonin Scalia. Quoting from the Court’s opinion in Ex parte Siebold (1880), Scalia notes in Reynoldsville Casket Co. v. Hyde (1995) that what a court does with regard to an unconstitutional law is simply to ignore it. It decides the case "disregarding the [unconstitutional] law" because a law repugnant to the Constitution "is void, and is as no law."
To be sure, for the Marbury Court, it is "the province and duty of the judicial department to say what the law is," but only "of necessity," whenever those "who apply the rule to particular cases" must determine which of two "conflicting rules governs the case." In other words, the power of review claimed by the Court in Marbury is merely a power of discretion to disregard (not "strike down"—as the modern phrase suggests) existing laws in the decision of particular controversies, provided that the constitutional and statutory provisions involved are, like those in Article III and the Judiciary Act, addressed to the Court itself. If the provisions are not addressed to the Court, then the Court will not be compelled, as a matter of logic, to choose between them in order to decide the case. Precedents are created by holdings on points of law necessarily decided in particular cases. The Court’s choice between constitutional and statutory provisions, one or both of which are not addressed to the Court, should not control the decision of subsequent cases. So Marbury affords no basis for inferring that the Court is bound to disregard a statutory provision in conflict with the Constitution, except in those relatively few instances in which the Constitution stipulates a direct rule for the courts.
Most of the Constitution’s direct rules for the courts are found in three places: Article III, Amendments 4–8 of the Bill of Rights, and certain provisions of Article I, Section 9. The classic example is one that Marshall himself used in Marbury: the treason clause of Article III, Section 3, which requires either a confession or the testimony of two witnesses in open court to the same overt treasonable act. For an obvious example from the Bill of Rights, one only need add the requirement of the Fifth Amendment that such a confession be uncoerced. Now suppose that Congress, in a zealous attempt to suppress subversion, amends the federal rules of criminal procedure so as to make it possible for the government to obtain a conviction on a charge of treason on the basis of a coerced confession, or on the testimony of only one witness. Much like the situation faced by the Court in Marbury, this situation presents a clearcut case of a judiciary nature precisely because the Court cannot apply the statutory provision without at the same time violating the Constitution.
Attention to this principle can help to determine whether any particular case is of a judiciary nature. One may simply ask: "Can the Court apply the law in question without itself directly violating the Constitution?" If the answer to this question is no, then the case is "judiciary" in nature; the Court will have no sensible alternative but to invalidate (refuse to apply) the law. If the answer is yes, then the case is "nonjudiciary" in nature, and the Court must apply the law, whether or not the judges believe that the law itself violates the Constitution.
Applying this method, one may read down the list of provisions in Article III and Amendments 4–8, along with the attainder, ex post facto, and habeas corpus provisions of Article I, Section 9, and be quickly satisfied that most of the cases that have arisen (and may yet arise) under them fall into the former category (cases of a judiciary nature). At the same time, one may look almost anywhere else in the Constitution and be satisfied, though perhaps not so quickly, that most of the cases that have arisen (and may yet arise) under provisions other than Article III, Amendments 4–8, and Article I, Section 9 fall into the latter category (cases of a nonjudiciary nature).
This approach would authorize judicial invalidation of a law only when upholding the law would cause the Court to violate a constitutional restriction on judicial power. It would also not allow the Court to defeat legislative or executive policies on the ground that such policies were unauthorized by the Constitution. It would not allow judicial nullification of policies forbidden by the Constitution, except when the participation of courts is required to effectuate them. Would adoption of this approach—one might call it "functional coordinate review"—put an end to constitutional law as we presently understand it, leaving us in the grip of tyrannical popular majorities?
History is reassuring. Of course, had the Supreme Court followed this approach throughout its history, the majority of the cases wherein congressional acts were nullified would have been decided differently. Of the 130–odd cases in which federal laws were invalidated between 1800 and 1985, only thirty–eight were "of a judiciary nature." However, when the cases are examined more closely, a different picture emerges. First, leaving aside Marbury and Dred Scott (the earliest instance of judicial invalidation of congressional policy in a case not of a judiciary nature), the Court invalidated national laws in seventy–five cases from its beginning to 1936—the eve of the Roosevelt Court–packing scheme. Of these, sixty–one were not of a judiciary nature, having occurred, under Madison’s theory, in cases inappropriate for judicial review. The bulk of these latter cases were decided on the ground either of (a) Fifth Amendment substantive "economic" due process, (b) Tenth Amendment "dual federalism," or (c) the Court’s mere opinion that Congress had overstepped its constitutional authority. Virtually all of the "inappropriate" decisions have since been either overruled or so thoroughly emasculated as to have effectively disappeared from our constitutional law.
Between the Roosevelt Court and 1985, the Court overturned fifty–three acts of Congress. The Roosevelt and Warren Courts together performed twenty–six of these, all but five in cases "of a judiciary nature." On the other hand, only two of the twenty–seven Burger Court nullifications were clearly in cases of a judiciary nature. The obvious conclusion to be drawn from this brief survey is that, unless one happens to be a staunch devotee of the Burger Court, adoption of Madison’s theory of review would hardly have reduced our constitutional law to a shambles. Instead, it would have eliminated the more questionable portion of the Court’s ninety or so historical interferences with national legislative policy, of which the Court has itself already eliminated roughly two–thirds.
I believe that this record is a testament to the good sense of Madison and the Founders. They extended federal judicial power to cases "arising under" the Constitution, laws, and treaties only after they had generally agreed that the power was "limited to cases of a judiciary nature." Limiting "final" constitutional review by the Court to these cases leaves to coordinate branches of government final authority to determine the reach of their own constitutional powers. It preserves the coequality accorded to each division of the government by the Founders. It strengthens the separation of powers by emphasizing the constitutional responsibilities of Congress and the President. And it recovers an important strand of our republican heritage that is nowhere more apparent than in the Supreme Court’s own rich constitutional legacy.
I do not mean to suggest in anything said above that the Court’s reinterpretation of Marbury is the sole cause of modern judicial supremacy. Although such doctrinal support is essential, many factors produced the present situation. First, we note that our elected representatives often shift responsibility for particularly unpleasant controversies onto the courts—a tendency observable at least as early as the 1850s, when the issue of slavery in the territories was certified to the Supreme Court. Second, in the decades following the Civil War, the legal establishment realized that its interests and those of its business clientele would best be served by a powerful federal judiciary, and it set in motion a series of doctrinal developments that would support the enhanced judicial role. Third, the strong social consensus of the ante bellum era regarding the shape of most important constitutional issues eroded, paralyzing the political institutions; the courts, being small deliberative bodies, seemed better positioned to make decisive choices in a society riven by conflict. Finally, the twentieth–century American judiciary has become a "secular priesthood" to which Americans increasingly look for solutions to the collective moral and spiritual dilemmas into which we have been propelled by our failure to face difficult constitutional problems directly and resolve them in the political arena. The "joint opinion" of Planned Parenthood v. Casey (1992) demonstrated the extent to which the Supreme Court has been captivated by this image of itself. In a statement fraught with irony, the Casey Court declared:
Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.
Robert Lowry Clinton is Associate Professor of Political Science at Southern Illinois University at Carbondale. He is the author of Marbury v. Madison and Judicial Review (1989) and God and Man in the Law: The Foundations of Anglo-American Constitutionalism (1997), both published by the University Press of Kansas.