What Progressives Get Wrong About Judicial Review

A distinguished liberal jurist, Learned Hand, told an distinguished liberal audience in February 1958 something it didn’t want to hear. Hand stated that the U.S. Supreme Court’s renowned power of judicial reviewing was fundamentally unlegitimate 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 stated that the Supreme Court should not allow nine non-elected judges to substitute for the Constitutional values of those democratically accountable officials who created the policy.

Problem with the 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 stated that both then and now the Supreme Court’s use judicial review was “patent theft” in which the judiciary defied popular will and turned itself into “a third legislature chamber”.

Hand, who was well-known for his liberal views, spoke at Harvard on that fateful day. He was a crucial adviser to Theodore Roosevelt’s Progressive Party campaign in 1912. Hand was a founding partner of Herbert Croly, in 1914. The New RepublicThe magazine quickly rose to prominence and became America’s leading liberal magazine. He would be joining the U.S. Court of Appeals, 2nd Circuit in 1924. His judicial career would span three decades and make him one of America’s most admired liberal judges. In 1961, he was a. 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. According to Hand, “It is perfectly normal to wonder if it would be a good idea to abolish the Supreme Court. Or at the minimum strip the Court’s ability to overturn laws which it rules to be unconstitutional.” Vox writer Sean Illing in 2018. Nikolas Bowie from Harvard Law stated in 2021 that disempowering the federal courts was the best form of democratic reform. The Harvard law professor Nikolas Bowie in 2021 stated that “No reform can be made without the removal of the power to judicial review.” New York Times columnist Jamelle Bouie in 2019, will be sufficient to stop “judges nominated by Trump.”

Sixty years after Hand disregarded Harvard’s crowd, there are still advocates for abolishing judicial review. 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. Unelected judges can void actions taken by democratically elected presidents and legislators. This is a way for the judiciary, they argue, to undermine the will of 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. The judiciary, undoubtedly, is the least democratic government branch. That is not to say that the judiciary cannot be democratic. By design. James Madison said that the role of federal courts is to “impermeable guard against any assumption of power in either the legislative or executive.” Sometimes, presidents and lawmakers take power they shouldn’t. Popular majorities may support these power grabs. However, the judiciary has the power to prevent such majority wills from being realized. 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 judicial branches. Article III, Section 1 states that the judicial power of the United States is vested in one Supreme Court and any inferior Courts the Congress may ordain. In the Constitution’s framers and ratifiers, “the judicial Power” was understood to refer to federal judges having the power to annul executive and legislative acts that are contrary to the Constitution. That power is known as judicial Review.

“A Negative Comment on the Laws”

Examining American legal history shows the solid foundations of judicial reviewing. 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. This character will make a negative opinion on the laws. George Mason also made this point the day before. According to the Constitution judges can declare unconstitutional legislation 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 the first to believe that Congress should be able to veto laws made by states. Madison was a witness to various states erecting tariffs and other expensive impediments to interstate trade (among many other obstacles to economic and political harmony of the newly formed nation). Madison demanded that Congress establish a check on such actions by states.

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 stated that Madison was concerned about the time it might take for federal courts to review such laws and wanted Congress to act faster to stop them.

Gouverneur Moor spoke in support of the proposal. Morris said that a law which ought to be rejected would be thrown out by the judiciary division. 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 lost that debate to Morris. A congressional “negative” would not be allowed to override the state laws in the Constitution. 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. All agreed that federal courts will have the ability to exercise judicial review.

A Constitutional Check

The records of states that ratified conventions are evidence of this same understanding of “the judiciar power”. James Wilson, for example, was a part of the Philadelphia document’s draft and led the Federalists to push for Pennsylvania ratification. He explained how the Federal Courts would function under the Constitution in a well-reprinted speech dated December 4, 1788. Wilson stated that if a law is made incompatible with the powers conferred by the instrument in Congress, the judges will declare the law null and invalid. The power of the Constitution prevails. This is the essence of judicial review.

Oliver Ellsworth made the exact same point, but with more clarity on the Connecticut Ratification Convention of January 7, 1788. Ellsworth, a Founding Father who is often forgotten, was both a member and delegate of the Philadelphia Constitutional Convention. He was also the main author of the Judiciary Act of 201789 while serving as a senator in the United States. It is still available on the books. He was the Chief Justice of the United States Supreme Court from 1796 until 1800. Ellsworth was as active as any founder to shape the federal judiciary.

Ellsworth stated that the Connecticut Ratification Convention had told Ellsworth, “This Constitution determines the extent of powers of the general government.” The judicial department acts as a constitutional safeguard if the limits of the General Legislative are exceeded. The Constitution prohibits the United States from making laws that are not authorized by it. To ensure their impartiality and independence, national judges will declare the law null if it goes beyond its powers. 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 judiciar power” meant the power to have the Federal Courts review the decisions of local judges. Patrick Henry, for instance, praised local judges in his state as having “the courage to declare they were” at the Virginia Ratification Convention, June 12, 1788. The judiciaryHe would also oppose any unconstitutional acts.” Then he asked if the federal judges envisioned could also be trusted to perform the same. He asked, “Are we sure your federal judiciary is going to act as you expect?” Henry wanted to know. Henry demanded that federal courts be able to exercise the judicial review authority granted by the Constitution.

Alexander Hamilton is another, who was a key player at Philadelphia’s convention and wrote much of the document. Federalist PapersA collection of important essays, which both clarified the meaning of the document and encouraged its ratification. Hamilton described the “duty” of the judiciary in 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 was a war veteran, James Madison’s friend, and professor of law in 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. The Constitution of the United States – View 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. He explained that the judiciary is “the department of government to which the protection of individual rights is especially confided by the constitution, interposing its shield against him and the swords of usurped authority and the darts or oppression and the shafts and violence.” Tucker stated that sometimes it is the task of courts to stop overreaching majority will.

The evidence from Philadelphia, and other state-ratifying conventions are all, in summation, Federalist PapersBoth the Constitution and the first ever published constitution treatise point in the exact same direction.

It would make the most awkward thing.

A constitutional loss is the legal argument against judicial reviews. The power of courts to “void”, unconstitutional legislation was, as we’ve seen, originally part of Article III.

How about the political argument against judicial reviews? Hand stated that he was against judicial review when he addressed Harvard in 1958. He believed it would be bad for democracy. He said that it would be very bothersome for him to be governed by a bunch of Platonic Guardians even if he knew how to pick them. They would be in control and I’d miss out on the stimulation of living in a society that has, at most theoretically, some say in how public affairs are managed.

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 EducationHand admitted this fact. A judicial review does not mean no Griswold v. Connecticut (1965), that struck down the ban on birth control. It means: 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. This means there won’t be any future Supreme Court cases that invalidate 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.

Are these the real legal landscapes liberals desire to see?