In 1803, the landmark case of Marbury v. Madison was decided in the court of Chief Justice John Marshall. This case created the power of Judicial Review; a power that gives judges the right to decide if a law violates the constitution. Over the years, the power of Judicial Review has been broadened to give judges much greater power in deciding laws and cases. This has allowed them to legislate from the bench and create laws for the country in violation of the Constitution and the Separation of Powers. Because of this overstep of power, Judicial Review needs to either be scaled back with clear limitations and, or removed completely.
It is important to understand the history of Judicial Review, where it came from, and why the US allows its use. In the election of 1800, Thomas Jefferson defeated John Adams and became the 3rd President of the United States. While the election was officially decided in February of 1801, Jefferson was not sworn into office until March 4th of 1801. (The 20th Amendment changed the inauguration date to January 20th.) After Jefferson’s victory, the Federalist majority passed a bill called the Judiciary Act of 1801. Among the many things this act did, what’s important is that it established 10 new district courts and expanded the circuit courts from 3 to 6. This created many vacant seats that needed to be filled with new judges.
The now lame-duck president, John Adams, appointed Federalist judges to all the posts that this new bill created. They were all confirmed by the house rapidly and commissions were sent to all the “Midnight judges”. However, when Jefferson was sworn into office, he instructed his Secretary of State, James Madison to not deliver any more commissions to the rest of the judges including William Marbury. Upset, William Marbury petitioned to the Supreme Court that Madison is forced to deliver the commission. Chief Justice Marshall found that Madison’s refusal to hand out the commission was illegal. However, the court decided against ordering Madison to hand out the commission because it found that the provision of Judiciary Act of 1789 that Marbury used to bring his grievance to the Supreme Court was itself unconstitutional and denied the petition.
Chief Justice John Marshall
Chief Justice Marshall found that it was illegal for Madison to withhold the commission, but that the court could not force Madison to give the commission to Marbury. Moreover, Marshall found a law passed by Congress unconstitutional and felt that it was the duty of the court to overturn it. Alex McBride from PBS outlines the case well:
“By extending the Court’s original jurisdiction to include cases like Marbury’s, Congress had exceeded its authority. And when an act of Congress is in conflict with the Constitution, it is, Marshall said, the obligation of the Court to uphold the Constitution because, by Article VI, it is the “supreme law of the land.”
This decision by Chief Justice Marshall led to the adoption of Judicial Review by the Supreme Court. Read about more US History in The Unpopular History of the Republican Party
Why Judicial Review is Unconstitutional
Article 1 of the Constitution creates the legislative branch and makes it the branch of government responsible for the creation of laws. However, with the advent of Judicial Review, the Supreme Court gained the power to stop laws or change them. Per Article 3 of the Constitution, the only power the Supreme Court has is the ability to declare if a law was unconstitutionally passed. If a bill is unconstitutionally passed, the Supreme Court only has the right to point it out and make Congress pass it again legally.
The Supreme Court and many federal judges use Judicial Review to achieve their political goals, hurting the United States in the long run. When judges use Judicial Review to achieve their own political goals, this is called “Judicial Activism”. Judicial Activism is hard to concretely define, therefore, for the purposes of this article, it will be defined as judges making decisions on bills and laws based on their political leanings. An example of this would be District Judge Derrick Watson in Hawaii. Watson has repeatedly declared President Trump’s Travel Ban Unconstitutional and even fought the Supreme Court in the process. Whether one agrees with the Travel Ban or not, it is very concerning that a district judge is deciding immigration policy for the entire country.
For one judge to decide if a certain immigration policy is unconstitutional is in itself, unconstitutional. The reason is that it is a violation of Separation of Powers. Only the Executive Branch can decide immigration policy for the country in accordance with Section 3 8 U.S. Code § 1182 – Inadmissible aliens. The only limiting factor is any laws that the Legislative Branch passes in regards to immigration.
Judicial Review also causes another problem; there is no check or balance against it. If Congress passes a law, the president has the right to veto that law as his check against Congress. However, Congress can check the President by overturning the veto by having a two-thirds vote against the veto. This is a great process that ensures the two branches do not get too powerful. So what check is there against Judicial Review? What is to stop a majority of judges to start declaring laws unconstitutional left and right if they do not like the laws? There is nothing to stop a group of judges from going around the constitution and striking down any laws they do not like. The Executive and Legislative Branch can do virtually nothing to stop the Courts from striking down laws left and right because there is nothing in the Constitution about Judicial Review. Since the Constitution says nothing of Judicial Review, there was never any checks and balances written against it.
One might argue that other judges have the ability to stop activist judges by holding a majority in a court. However, this assumes non-activist judges do not hold a majority in the Supreme Court. Since Judge appointments are lifetime terms, there is one dateable check on Judicial Review. This would be for Congress to impeach Judicial Activists. This comes with some problems though. Who decides what is Judicial Activism? Judicial activism is a term with no clear legal definition as stated before. Therefore, if a Congress were to impeach several “Judicial Activists”, what is to say the judge in question is legislating from the bench and not just a political enemy of a house majority? Furthermore Article 2 Section 4 of the Constitution states “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” – Meaning that judges have to actually have committed a crime to be impeached.
There is also another way to stop Judicial Activism, however, it is a dangerous path. Since Judicial Review is not in the constitution, there is no way to legally enforce it. This means that if the Supreme Court were to say that a particular bill is unconstitutional, the only means they have to enforce that ruling is by having legitimacy granted to them by the people who passed the bill. Therefore, if the ruling of the court is not legitimate in the eyes of the passers of said bill, the Supreme Court has no way to stop them from carrying out the contents of the bill. This exact thing happened during the Indian Removal Act in which the Supreme Court found the removal of the Native Americans unconstitutional, however, President Andrew Jackson challenged the court and the Indians were moved to Indian Territory.
Defying the court is dangerous as the Judicial Branch is still an equal entity to the executive and legislative branch with its checks and balances as per Article 3. If the legitimacy of any branch of government were to be lost in the eyes of the other branches, this could cause a real constitutional crisis where you have certain government entities refusing to follow the law and the constitution. When the institutions of a country are ignored or seen as illegitimate, it creates a real recipe for disaster.
The Morality of Judges
Many proponents of Judicial Review claim that judges are more moral than everyday politicians or that they are somehow above partisan divides and answer only to the constitution. This is completely false. It is clear that Judge Watson has his political beliefs in mind when striking down Trump’s travel ban. Proof of this can be seen in his justification for overturning it:
“The record provides strong indications that the national security purpose is not the primary purpose of the travel ban.”
The problem with this logic is that Justice Watson is striking down the law based on what he thinks President Trump is thinking and not on what the executive order in question actually says. David Frum from the Atlantic provides an in-depth analysis of everything wrong with Justice Watson’s verdict here.
This is a perfect example of a judge who has his own personal feelings involved with his decision on the Executive Order and offered no actual legitimate reason for striking down the ban. Judge Watson’s decision raises many questions on how much thought he gave to the Constitution, not to mention the dangerous precedent he has set in future cases.
Justice Derrick Watson
Another example of the questionable morality of Judges is the case, Plessy v. Ferguson. In this case, the Supreme Court found that racial segregation was legal thus allowing the south to implement Jim Crow Laws for years. This was a clear violation of the 14th amendment (fair and equal protection under the law). In this case, there was a clear morality problem amongst the judges that they would allow racial discrimination and they clearly were not following the constitution. It wouldn’t be until 58 years later that the court deemed Jim Crow laws unconstitutional in the case Brown v. Board of Education.
Another argument for Judicial Review is that judges are more honest than elected officials. There is a number of people who support judges more than elected officials because they see them as above partisan politics. Thomas Jefferson laid out the problem to Chief Justice Marshall with judges using Judicial Review in 1803:
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps… Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
Jefferson knew that having a group of unelected judges interpret the constitutional law for the country was dangerous. He knew that judges are just as human as everyone else and are susceptible to doing immoral things no more or less than the next man. Jefferson saw that by having unelected judges be the final interpretation of the Constitution, this could turn the American Government into an oligarchy where final power rests at the will of judges. To stop this, the Constitution deliberately made all branches of government equal so that one branch could never hold too much power. However, Judicial Review gives the Judicial Branch a large edge over the other branches and is exactly what Jefferson warned about.
There are two immediate solutions to judicial review. The first would be for Congress to pass a constitutional amendment that creates checks and balances that the executive and legislative branch would have over Judicial Review. thus ending judicial activism. This would make all three branches equal to each other and prevent the Judiciary from having too much power.
The alternative would be to abolish Judicial Review completely and stop unconstitutional laws by encouraging a greater turnover rate of elected officials in office through voting. This would stop courts and judges from misusing their power and legislating from the bench. The judicial branch would only have the power granted to them by the Constitution. At this point, it would be up to the people and Congress to stop unconstitutional laws. This seems like a better alternative, after all, the Constitution starts with “We the people….”.
Disagree? Tell me why in the comments below?