A distinguished liberal jurist, Learned Hand, told an distinguished liberal audience in February 1958 something it didn’t want to hear. Hand said that the U.S. Supreme Court’s famed power of judicial appeal was fundamentally invalid in a Harvard Law School lecture.
Hand spoke specifically about Brown v. Board of Education (1954), the now-landmark case declaring Kansas’ “separate but equal” public education system to be unconstitutional. Hand was not a supporter of the racist state school system. His argument was, instead, that the Supreme Court didn’t have the right to rule on this issue. Hand argued that nine unelected judges should not be permitted to replace the constitutional values of democratically-responsible officials who had created the policy.
This is the problem with Brown Court, Hand told his increasingly unsettled audience, was the same as the problem with the Lochner Court, which had once struck down Progressive-era economic regulations in the name of its constitutional vision. Hand claimed that the Supreme Court’s use for judicial review in the past and the present was a “patent usurpation”, by which the judiciary overruled popular majorities, and became “a third legislative body.”
Hand was a Harvard graduate that day, adorned with impressive liberal credentials. Hand was Theodore Roosevelt’s key advisor in the Progressive Party’s campaign for The presidency. Hand was a founding partner of Herbert Croly, in 1914. The New RepublicIt quickly became America’s most popular liberal magazine. In 1924, he joined the U.S. Court of Appeals 2nd Circuit. There, his judicial career would last three decades. He became one of America’s most renowned liberal judges. He died in 1961. New York Times obituary called him “the greatest jurist of his time.”
But Hand’s 1958 liberal audience was not interested in his attacks on judicial reviews. Liberals in 1958 cheered more than just the Supreme Court’s actions. Brown but cheered again a few years later when the Court struck down democratically enacted bans on birth control and abortion. The vigorous use by federal courts of judicial review would make legal liberty synonymous in the future.
Liberals had a right to not buy the products Hand was selling. It was too late. Today, a growing number lefty activists are ready to support Hand’s cause. It’s reasonable to question whether we abolish the Supreme Court or at least remove the Court from its power to repeal laws it finds unconstitutional. Vox writer Sean Illing in 2018. Nikolas Bowie from Harvard Law stated in 2021 that disempowering federal courts was the most democratic form of reform. According to Bowie, “No reform is complete without ending the power over judicial review.” New York Times columnist Jamelle Bouie in 2019, will be sufficient to stop “judges nominated by Trump.”
Six decades ago, Hand discomfited Harvard’s students. Now the legal left is embracing the idea of ending judicial reviews. The Constitution is clear that abolishing the judicial review would be a mistaken idea, one which will endanger liberalism.
“The Judicial Power”
Two main arguments are made today by liberal opponents of judicial reviewing, which Learned Heart also supported. They claim that judicial reviews are contrary to democracy. The argument is that allowing unelected judges the power to annul the acts of democratically-elected legislators, presidents or governors would allow the judiciary the ability to overthrow the will the majority. These critics also claim that judicial review is not enumerated or inherent to the court, as Bouie stated. The act of abolishing the judicial review doesn’t raise constitutional concerns.
The liberal critics of the judiciary are correct on the first point, but wrong on the second. Undoubtedly, the judiciary is the most democratic part of government. That is not to say that the judiciary cannot be democratic. Design. James Madison stated that federal courts have the responsibility of being “an impenetrable buffer against all assumed power in the legislative and executive.” Presidents and lawmakers sometimes take powers they don’t need, while popular majority support such power grabs. However, the judiciary has the power to prevent such majorities from achieving their goals. In fact, the judiciary was created to counter the power of these majorities.
This authority, contrary to Bouie is located in the Constitution. It is completely inherent in the judiciary branch. Article III, Section 1 states that the judicial power of the United States is vested in only one Supreme Court and any inferior Courts the Congress may ordain. According to the Constitution’s Framers, the ratifiers understood “the judiciar power” to mean the ability of federal judges in the United States to invalidate legislative or executive acts which violate it. This is what we refer to as judicial review.
“A Negative Comment on the Laws”
A look at American legal history will reveal the strong constitutional foundations for judicial review. The Philadelphia 1787 Constitutional Convention was the place where this document was written. Luther Martin spoke on July 21 in support of the consensus position. Martin stated to fellow delegate that the question of the constitutionality of laws would be brought up before judges according to their official nature. They will be negative about the laws in this manner. George Mason also made this point the day before. According to the Constitution judges can declare an unconstitutional statute null. No one at the convention was opposed to any of this.
In the Framers debates over a proposed amendment that was not included in the final document, the Framers have the same idea of the “judicial power”. James Madison was a prominent member of the convention that believed Congress should have constitutional authority to veto federal laws. Madison was a witness to various states imposing tariffs on interstate commerce and other impediments that would have a negative impact on the economic and political stability of the nation. Madison wanted a Congress to stop such state actions.
The states “can pass laws which will accomplish their injurious objects before they can be…set aside by the national tribunals,” Madison told the convention on July 17. Madison expressed concern that federal court judicial review might be too slow in these cases, and asked Congress for more speedy action against particularly dangerous laws.
Gouverneur Moor spoke in support of the proposal. Morris responded, “A law that should be negated,” and “will be disregarded in the judiciary section.” Morris did not favor a congressional veto over state legislation because he thought the veto power of the federal courts—judicial review—would do the trick.
Madison was defeated by Morris in this particular debate. There would be no “negative” clause in the Constitution that could override state laws. But both sides in the debate did think—indeed, both sides simply took it for granted—that the federal courts would have the constitutional power to “set aside” unconstitutional laws. The power to judicially review would be granted by the federal courts, which they all accepted.
“A Constitutional Review”
This understanding of “the power of the judiciary” can be seen in the documents of state convention ratifiers. James Wilson was one of those who helped to draft the Philadelphia convention document. He led the Federalists’ push for Pennsylvania ratification. His speech on December 4th 1788 was widely printed and explained the function of federal courts in the new Constitution. Wilson explained that “if any law should be inconsistent with these powers vested in Congress,” the judges would declare it null and unenforceable. This was because of their independence and specific powers of government. In a nutshell, that is judicial reviewing.
Oliver Ellsworth made this same point in particular at the Connecticut Ratification Convention of January 7, 1788. Ellsworth is an unjustly overlooked Founding Father. He was both a Continental Congress member and a Philadelphia Constitutional Convention delegate. Ellsworth was the primary author of The Judiciary Act of1789. This law is still in effect. He was the Chief Justice of the United States Supreme Court from 1796 until 1800. Ellsworth contributed as much to the creation of the federal judiciary as any Founding Father.
Ellsworth explained that “This Constitution defines what the limits of the powers are for the general government.” He spoke to the Connecticut Ratification Convention. The judicial department acts as a constitutional safeguard if the limits of the General Legislative are exceeded. If the United States exceeds their power to make laws which aren’t authorized by the Constitution, they will declare them null. The judicial power is exercised by the National Judges, who must be independent to ensure their impartiality. Ellsworth said that if states exceed their powers, or if they create a law that is an invasion upon the general government’s authority, it is null; upright and independent judges will declare this to be true.”
Even Anti-Federalist supporters of the Constitution were aware that the “judicial powers” encompassed the power to have federal court review. Patrick Henry, for instance, spoke at Virginia Ratification Convention June 12 1788 and praised his state’s local judges for being able to “fortitude” declare their independence. The judiciary” He asked whether federal judges would be able to follow his lead. Are you certain that the federal judiciary will do so? Henry asked. Henry demanded that federal courts be able to exercise the judicial review authority granted by the Constitution.
Alexander Hamilton was another important participant at Philadelphia’s convention. He then wrote most of the book. Federalist PapersA series of essays which were influential and argued for its ratification. Hamilton explains the “duty” that is owed to the judiciary. Federalist 78. “Must be to declare null all acts that are contrary to the clear tenors of the Constitution.”
St. George Tucker’s writings provide another piece of evidence contemporaneous to what the founder generation believed about “the judicial authority.” Tucker, who was also a soldier in the Revolutionary War and James Madison’s colleague, was professor of law at College of William and Mary. Tucker was there to witness the unfolding of the ratification negotiations and published in 1803 the first detailed analysis and commentary on the founding document. Tucker would continue to be a pioneer in the field of ratification. View of the Constitution of The United States would serve as a sort of go-to constitutional law textbook for students, lawyers, and judges.
Tucker stated that the judiciary is “a necessary control upon any encroachments or usurpations power by either one of the two.” The judiciary is bound to declare, not just whether the accused party has been found guilty but also whether it was permitted by the Constitution, in the event that the legislature passes a law that would be dangerous for the liberty of the people. The judiciary, in that sense, Tucker wrote, “is the department of the government to which protection of rights of individuals is by constitution particularly confided,” interposing it shield between him, the sword of usurped power, the darts oppression and shafts faction and violence. Tucker stated that sometimes it is the task of courts to stop overreaching majority will.
Summarising, evidence from the Philadelphia convention and the various state ratifying conventions is the Federalist PapersAll three points point in the same direction. The Constitution gives the federal courts the power to review judicial decisions.
“It would be most irresistible”
Judicial review is constitutionally unconstitutional. We have already seen that the court’s power to “void” unconstitutional law was initially understood as part of Article III.
But what about the political arguments against judicial review Hand, when he gave a speech at Harvard in 1958 said that he opposes judicial reviews because it is bad for democracy. He said that it would be very bothersome for him to be ruled over by a bunch of Platonic Guardians even if he knew how to pick them. I would miss living in an environment where, at the very least, I had some control over the direction of public affairs if they were in command.
Many liberals fear that the Supreme Court will act with six Republican appointees. These liberals may wonder if there is a downside to stripping “Trump Court’ of its judicial authority?
Hand was able to see the down side and stated that he would be willing to deal with it. There is no judicial review. Brown v. Board of EducationAs Hand openly acknowledged, A judicial review does not mean no Griswold v. Connecticut (1965), which imposed a ban against birth control. Roe v. Wade (1973), which struck down a ban on abortion; it means no Lawrence v. Texas (2003), which struck down a ban on “homosexual conduct”; it means no Obergefell v. Hodges (2015), which struck down a ban on gay marriage.
These resounding Liberal victories would not have been possible without judicial review. It also means that there will be no Supreme Court rulings in the future which invalidate other laws on constitutional grounds. Simply put, without judicial review, liberals confronting a Republican-controlled legislature will have no opportunity to seek constitutional redress in federal court.
Does that reflect the ideal legal environment liberals seek?