OrCon Law

Judicial Review and the Anti-majoritarian problem.

Lawrence Solum at the Legal Theory Blog has a good post today on judicial review and the anti-majoritarian problem.  It furthers the discussion that Jim Westwood began with his July 9 blog on Judicial Review - Legitimate or Made Up?  The link is here.

Understanding Leegin v. PSKS

The Sunday Oregonian (July 8) contains an excellent summary and analysis of the Supreme Court's recent decision in Leegin Creative Leather Products v. PSKS, overturning a century of precedent in retail price maintenance under Sherman Act section 1.  A link to Laura Gunderson's article is here.  The Supreme Court's decision is here.

Judicial Review - Legitimate or Made Up?

It's an old debate - what is the basis for the doctrine of judicial review in the United States, and is it a valid one? Here's my offering on the subject. I invite comments from any and all who see this and want to weigh in. The Constitution's text implies judicial review vaguely or not at all. Article III section 2 extends "the judicial power" to "all cases * * * arising under this Constitution," and the second sentence of Article VI makes the Constitution "the supreme law of the land," but evidence from the Constitutional Convention and ratifying conventions does not support that language as a source for judicial review. Madison argued at Philadelphia that Article III specifically does not give the Supreme Court power to invalidate legislation. See Christopher Collier, Decision in Philadelphia (1987) at 269.

It was up to the antifederalist known as Brutus, in his Twelfth Essay, to warn that under the Constitution courts would use arbitrary standards to refuse enforcement to laws they thought were unconstitutional, and (presciently) that the dangerous outcome would be to "give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter." See Ralph Ketcham (ed), The Antifederalist Papers (2003) at 300.

If one argues that the Supreme Court's authority depends upon its being faithful to the spirit as well as the language of the Constitution, one needs to assume there is common agreement on what comprises its unwritten "spirit."  If judicial review is to be performed at all, that highlights the need for a Supreme Court that departs from the Constitution's literal text only in the rarest of cases - to invoke a "spirit" of the Constitution only when the Court is essentially unanimous and even then, as Alexander Bickel wrote, to think of itself as "a court of last resort presumptively only." Alexander Bickel, The Least Dangerous Branch (1962) at 258.

Assuming that an objective "spirit" of the Constitution does exist, and that the word "authority" means the Supreme Court's credibility with the American public, then the Court's fidelity to that spirit is indeed vital to its survival as a respected institution.  Chief Justice Marshall successfully invoked the "spirit" of the Constitution in McCulloch v. Maryland (17 U.S. 316, 421 (1819)) to confirm Congressional authority to charter a national bank.  Justice Harlan was less successful when he invoked a Constitutional "spirit" in his dissent from the majority in Plessy v. Ferguson (163 U.S. 537, 563 (1896)), but the Court vindicated his view 58 years later.

So who wins the debate on judicial review?  In Federalist 78, Alexander Hamilton reasoned that because a constitution must be regarded by judges as fundamental law, and because the Constitution does not authoirze Congress to be the judge of its own powers, it belongs to the judiciary to ascertain the meaning not only of Congressional acts, but also of the Constitution.  Hamilton said it is rational to view the courts as an intermediary between the people and the Congress, to keep Congress within its delegated authority.

Hamilton said it well.  Judicial review lies at the heart of a government of separated powers.  It is, in that most fundamental respect, constitutional.