Ketanji Brown Jackson’s confirmation in the Supreme Court on Thursday was as remarkable for what she didn’t change as for what she did.
When she takes office, she will become the first black woman to join the court in its 233-year history. At the same time, their arrival will not alter the court’s ideological balance or divert it from its current course as a vehicle for the conservative movement.
Future Justice Jackson may be able to persuade her new peers not to be too aggressive, but there’s nothing she or the other liberals on the court (or Chief Justice John Roberts, for that matter) can do to hold back a right-wing majority that’s trying to unravel the remnants of post-war jurisprudence.
It was at this point that we got another glimpse of what that world will be like when the Supreme Court on Wednesday issued a 5-4 “shadow list” order, resurrecting a Trump administration order restricting the ability of states and sovereign tribes to restrict projects that could damage waterways or affect water quality. The Conservative majority (minus Roberts) did not issue a statement or otherwise justify their decision. Nonetheless, it has undermined the Clean Water Act and turned decades of established legislation on its head without a single note, let alone hearing and argument. In her dissent, Judge Elena Kagan wrote that the court “erred” in granting “exculpation” to the plaintiffs in the case without establishing “irreparable harm.” We should expect it to continue down this wrong path.
Here it is worth thinking about the doctrine that actually gives the court the power to make these decisions – judicial review.
The traditional view is that the Supreme Court’s power of judicial review derives from Chief Justice John Marshall’s decision in Marbury v. Madison of 1803 arose from what was supposedly a petty dispute, which offered Marshall—an experienced politician as well as a jurist—an opportunity to assert both the authority of the Constitution over ordinary legislation (in this case the Judiciary Act of 1789) and power of the court to decide on the meaning of the constitution. As Marshall wrote when he struck down the relevant section of the Judiciary Act as unconstitutional, “It is expressly the jurisdiction and duty of the Judiciary to say what the law is.”
But this traditional view has its problems. First of all, pre-Marbury judicial review (or something similar) was part of the Anglo-American legal tradition for decades. In Virginia, Massachusetts, and other colonies, juries and judges had considerable powers to say what the law was and even to overrule laws passed down by legislatures and other agencies. When judges and juries “exercised power to determine the law, they sometimes used their power to overrule laws, even acts of Parliament, and to disobey other commands of Crown authorities,” legal historian William E. Nelson explains in ” Marbury v. Madison: The Origins and Legacy of Forensic Review.”
For example, in a 1761 Massachusetts case involving the issuance of an administrative assistance — a sort of general and virtually unlimited search warrant — attorney James Otis Jr. urged the state Supreme Court to pass the Act of Parliament that the mutual assistance approved to annul question. His argument, and the assertion that would anticipate the practice of judicial review as we understood it, was that the act itself violated “fundamental principles of law.”
“In relation to Acts of Parliament,” Otis said, according to notes from a young John Adams present at the trial, “an act contrary to the Constitution is void: an act contrary to natural justice is void: and if an act made by Parliament should be, according to the words of this petition, it would be void. The executive courts must overrule such acts.”
Otis published his views in a pamphlet entitled The Rights of the British Colonies Asserted and Proved, which gained influence in the colonies a few years later during the Stamp Act crisis, as judges and juries used his arguments to push the law for void if not in breach of these “fundamental principles” of UK law.
“During the fall, winter, and spring of 1765-1766, lawyers throughout the Atlantic Seaboard made this argument,” writes Nelson. “And each court that accepted the argument made the argument less marginal and increasingly brought it into the mainstream of American constitutional thought.”
Judicial review continued to take shape in the years following independence. A number of cases – in Virginia, New Jersey and North Carolina – have addressed the question of what to do when a legislature’s action appears to violate a state constitution. In a case involving the pardoning of three Loyalists convicted of treason, George Wythe of the Virginia Court of Appeals stated his view that he had a “duty to protect a single individual from the greed of the sovereign.” and ” Protect one branch of the legislature, and consequently the whole community, from the usurpations of the other.” When the time came to repeal a law, he said: “I will feel obliged; and carry it out fearlessly.”
By the time of the Philadelphia Convention in 1787, judicial review was an integral part of American jurisprudence. It was also controversial, being rejected on democratic grounds. One delegate, John Dickinson of Pennsylvania, said: “There should be no such power.” John Mercer of Maryland also said that he “disapproved of the doctrine that judges, as interpreters of the Constitution, should have the power to void a statute to explain”. And James Madison, the most influential figure in Congress, opined that this practice would “actually place the Department of Justice at the forefront of the legislature, which was never intended and can never be appropriate.”
Madison’s push for a federal “negation” of state legislation — a Congressional veto on any state law that “the state legislature deems contrary to the statute” — was essentially an attempt to hand over judicial review power an elected and representative body and not an unelected tribunal. So was his plan for a “council of review” that would have the power to scrutinize and potentially veto any act of the national legislature. (Both plans are testament to the deep hostility Madison felt toward state governments at this point in his life.)
The Convention rejected both proposals in favor of the Constitution’s later primacy clause, which placed federal law above state law and gave the federal judiciary the power to enforce compliance. And although delegates did not discuss judicial review at length during the convention, it was this decision that essentially guaranteed that the Supreme Court would develop something called a judicial review.
“Once the drafters have decided to turn to the courts to ensure the supremacy of federal law over state law,” writes Nelson, “they inevitably delegate jurisdiction to determine the meaning of federal law to those courts. And in determining the meaning of federal law in the event of a conflict between an act of Congress and the Constitution, the courts had to have the power to enforce the Constitution and to void the act of Congress.”
Marbury v. Madison may have been the first time the Supreme Court overturned a federal law as unconstitutional, but as we have seen, John Marshall did not invent the practice. Instead, it arose organically from the legal culture of the American colonies and was implicitly written into the federal constitution. What Marshall did was give form to the practice of judicial review and navigate the court through its first major conflict with the executive branch, leaving its power and authority intact, if not strengthened.
Of course, the development of forensic review didn’t end with Marbury. Following Marshall’s precedents, the court of the first half of the 19th century understood itself as enforcing the boundary between politics and law, between what the state can touch and what is part of the fixed structure of society. In practice this meant the strict defense of private property (including that which was enslaved) from the actions of the elected legislature.
This made sense in a largely agrarian country where most commoners — or at least most adult white males — owned or expected to own land at some point in their lives. But with the rise of industrial capitalism in the second half of the 19th century and the consequent transformation of American economic life, the role of the court changed, or was forced to change.
“As vast accumulations of commercial wealth grew in the late 19th century, giving its owners monopoly power and enabling them to dominate the lives of others,” Nelson writes, “the demand for redistributive regulation grew, and those calling for the new regulation came to view the constitutional protection of established rights by the judiciary as contested and political rather than legal and immutable.” Marshall’s distinction between law and politics collapsed under the weight of substantive change, and judicial review took on a new form.
This brings us back to the present day, where judicial review is used to resolve social and political disputes, as well as narrow legal disputes. The liberal mythology surrounding the Supreme Court – the idea that it defends marginalized groups and underrepresented minorities – took shape as the court transformed to meet the demands of the New Deal and post-war welfare state.
It is interesting to consider that in the hands of the current conservative majority, the court will most likely remain a defender of minority rights, deciding social and political conflicts. But rather than marginal and oppressed minorities, this court will turn its attention to the interests and prerogatives of powerful political minorities — you might call factions — that seek to dominate others free from federal interference.
Americans fighting for their voting rights or reproductive rights or the right to a life without discrimination will not find many friends in this Supreme Court. Big corporations, right-wing activists and conservative religious groups, on the other hand, will turn to the court, knowing that the majority of judges are almost certainly on their side.
As much as it may frustrate many Americans who find the court too powerful, judicial review is not going away. It may not be in the constitution, but it is an emerging feature of our constitutional order with deep roots in our colonial history.
So the best we can do is limit judicial review — subject it to greater democratic scrutiny and remind our power-hungry Supreme Court that it exists within the constitutional system, not above it.
https://www.twincities.com/2022/04/09/ketanji-brown-jackson-has-her-work-cut-out-for-her/ Ketanji Brown Jackson cut out her work for her – Twin Cities