D. Key Points about Judicial Review



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D. Key Points about Judicial Review
The key function of the Supreme Court in our system of checks and balances is to be found in its exercise of the power of JUDICIAL REVIEW. The Supreme Court’s power to review the actions of the other actors in the government and strike them down if they are not in accordance with the Constitution is what makes it a co-equal branch of our government.
There are SEVEN key points about Judicial Review that are worthy of note (each with an example of a specific Supreme Court case that is also worth knowing):
1) Judicial Review is NOT specifically mentioned in the Constitution.
The Framers in Philadelphia could not agree on whether or not they wanted to give unelected judges the power to strike down the actions of the two elected branches. As a result, they did not include any description of what exactly the role of the Supreme Court was going to be in our system of government. However, ALEXANDER HAMILTON in FEDERALIST #78 clearly says that judges will be the guardians of our liberties and that they will declare VOID the actions of the Congress and the President if they violate the Constitution. For Hamilton, this was a great selling point to use against the Anti-Federalists in New York who thought that the central government might be too powerful. Shortly before Hamilton would die from a gunshot wound received in a duel with then Vice-President of the United States Aaron Burr, the Supreme Court, under the leadership of Chief Justice JOHN MARSHALL exercised the power of judicial review for the first time in the case of MARBURY v. MADISON (1803). In this case, Marshall struck down a portion of the Judiciary Act of 1789, establishing the PRECEDENT that if Congress passes a law that violates the Constitution, that the Court can and will declare it unconstitutional.

So, in short, where did judicial review come from? The Constitution does not mention it, but Alexander Hamilton said that judges could do it and so John Marshall did. The rest is history.


2) Supreme Court decisions can be overridden by Constitutional Amendments.
The Supreme Court’s power of judicial review is not an unchecked power. In fact, in our system of checks and balances, if the Court makes a ruling about what the Constitution means and many people disagree with it, Congress can propose an Amendment to the Constitution to effectively overturn that ruling. A specific case in point would be SCOTT v. SANDFORD (1857), better known as the Dred Scott case. In this case, the Supreme Court struck down the Missouri Compromise of 1820, declaring that slaves were property and that Congress had no right to draw a line down the middle of the country and limit a slaveholder’s right to take his property with him into the northern parts of the western territories. To strike down this law and refuse Dred Scott his freedom, the Court cited the 5th Amendment, which protects property rights. Of course, this decision infuriated many people in the North and it turned out to be one of the precipitating events that led to the Civil War. As this costly war was coming to a close, the Congress, at the urging of Abraham Lincoln, passed the 13th Amendment to outlaw slavery once and for all. When this Amendment was approved by ¾ of the states, it essentially made the Dred Scott ruling obsolete.
3) The Supreme Court has no enforcement power.
At the end of the day, a Supreme Court decision is simply the opinion of a bunch of unelected judges written on a piece of paper. The Supreme Court justices have no army or police force at their command, and thus, they have no ability to enforce the decisions that they make. They must rely on individual citizens to accept the legitimacy of their decisions, and/or hope that the executive branch will enforce them. In the case of BROWN v. BOARD OF EDUCATION OF TOPEKA, KANSAS (1954), it became apparent just how difficult enforcing a Supreme Court decision can be. In this case, of course, the Court ruled that it was a violation of the Constitution for states to segregate students in public schools based on their race. However, this type of segregation was something that most southern states had no intention of eliminating. In a response to the Brown decision, more than a hundred southern political leaders signed a document called the SOUTHERN MANIFESTO in which they openly defied the Supreme Court and vowed to continue with their long-standing practice of having separate schools for white and black students. Although Presidents Eisenhower and Kennedy would in the years that followed famously order military troops to assist in the segregation of individual schools in Arkansas and Alabama, public schools in many parts of the south went on being segregated for more than a decade after Brown was decided.
4) There is no limit on the Supreme Court’s power of interpretation.
The words of the Constitution are relatively few, and what exactly those words mean depends on what a majority of the justices on the Supreme Court at any given moment in history say they mean. There is no limit on the ability of the Supreme Court to broadly interpret the language of the Constitution to incorporate any meanings that the justices desire. A case in point would be TEXAS v. JOHNSON (1989). In this case, Gregory Lee Johnson, a member of an organization called the Revolutionary Communist Youth Brigade publicly burned an American flag as part of an anti-Reagan protest at the 1984 Republican National Convention in Dallas. Johnson was arrested for violating a Texas state law that prohibited the desecration of the flag. 48 of the 50 states had such laws at the time. Johnson’s lawyer argued that the act of burning the flag was a type of political statement that should be protected under the 1st Amendment’s Free Speech Clause. In a 5-4 decision, the Supreme Court agreed with this controversial interpretation. Never before had the Court ruled that flag burning was a form of protected speech. This new interpretation angered many, including then-president George H.W. Bush, who as a young Navy pilot in World War II was shot down over the Pacific.
5) There are no absolute rights.
The Bill of Rights appears to make absolute statements about the rights of individuals in our Constitutional system. For example, the 1st Amendment states that “Congress shall make no law” restricting such things as the freedom of speech and the free exercise of religion. However, despite this seemingly absolute language, the Supreme Court has ruled many times that individual freedoms such as these can indeed be limited if the rights of others are infringed upon. In fact, Supreme Court cases usually have to do with the legal concept know as “RIGHTS IN CONFLICT” – in other words, what should we do when the rights of one come into conflict with the rights of others. A case that illustrates this idea is SCHENCK v. U.S. (1919). Charles Schenck was a socialist who distributed leaflets opposing both American participation in World War I and the imposition of the military draft. He was arrested for violating the Espionage Act, a law passed by Congress in 1917, which made it a crime to interfere with the country’s military operations during wartime. Arguing that his actions were protected by the 1st Amendment as free speech (i.e., “Congress shall make no law…”), Schenck’s case made it all the way to the Supreme Court. Justice OLIVER WENDELL HOLMES, JR. wrote a very famous opinion in this case, in which he upheld Schenck’s conviction and stated that regardless of what the Constitution says, an individual’s rights can be restricted if they create a “clear and present danger” for others. This “CLEAR AND PRESENT DANGER” TEST has been applied in hundreds of cases since when the question of whether or not the government should be able to restrict the rights of individual citizens has been asked. The court has been consistent in saying that the rights of the individual must be evaluated within the context of the rights of others who may be adversely impacted by the individual’s actions. As Holmes very famously wrote in his decision: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
6) The Supreme Court may in later cases reverse its earlier decisions.
Supreme Court decisions are a snapshot, not a motion picture. A decision is simply the opinion of the majority of the Court on a particular issue at a particular moment in time. As times change, community standards evolve, and especially as the membership of the Court changes, it is entirely possible for the Court to look at a new case involving an issue that it has dealt with in the past and make the exact opposite ruling. The case that unquestionably draws the most attention in this area is the original abortion decision, ROE v. WADE (1973). This 7-2 decision declared that women enjoy a constitutionally protected right to privacy that includes their right to terminate a pregnancy in its early stages. Over four decades later, none of the nine justices who made the original Roe decision remains on the Supreme Court. In fact, none of them is even still alive. Today’s entirely new court is made up of FIVE justices who were appointed by Republican, pro-life presidents named either Reagan or Bush, and only FOUR who were appointed by Bill Clinton and Barack Obama, both pro-choice Democrats. Currently there is a movement in many conservative states to pass laws stating that life begins at conception (something that by definition would make abortion murder). If one of these laws were to pass, it would immediately be challenged in court by pro-choice forces. In this way, it is quite possible that another abortion case could find its way onto the Supreme Court’s docket within the next few years. It is also entirely possible that if this happens, a 5-4 conservative majority could overturn the Roe decision and once again allow states to outlaw abortion.
7) The Supreme Court is not immune from public opinion.
While it is true that instead of being elected, Supreme Court justices are appointed, and while it is equally true that they generally serve just as long as they please, it would be an exaggeration to claim that this makes them immune from public opinion. In fact, there are plenty of cases that illustrate that the Supreme Court sometimes gives into a howling wind of public opinion despite what the Constitution seems to demand. Perhaps the best example of this is the Japanese internment case of KOREMATSU v. U.S. (1944). Fred Korematsu was one 120,000 people of Japanese descent (most of whom, of course, were American citizens by birth) who were imprisoned based entirely on their heritage after the bombing of Pearl Harbor. Korematsu’s lawyer argued that when FDR ordered the military to arbitrarily round up and imprison Japanese people that it was a blatant and egregious violation of the 5th Amendment, which states that life, liberty and property cannot be denied without DUE PROCESS. Since Korematsu was never charged with, nor convicted of, any specific crime, he was clearly denied the due process that the Constitution demands. However, in a 6-3 decision, the Supreme Court ruled against Korematsu despite the weight of the constitutional argument made on his behalf. Instead of freeing Korematsu, the Supreme Court essentially ruled that the government could ignore the Constitution during wartime. Perhaps the only thing that explains why the Supreme Court ruled this way is the vehemently anti-Japanese environment that existed in the country in the wake of Pearl Harbor. The justices of the Supreme Court knew that if they ruled in Korematsu’s favor it would have set off a firestorm of public criticism that might have damaged the Court’s fundamental legitimacy.


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