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Bench Memos

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Review and Things



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Let me pick at this narrow point raised by Robert and others here. He contends that judicial review and judicial supremacy are two different things. But as a practical matter today, there is no difference, is there? In fact, every small effort by Congress to exercise its legitimate and explicit power to limit the judiciary’s jurisdiction is met with howls for judicial independence. And any president who would dare to defy a court decision today, in the exercise of his own constitutional power, would likely face impeachment. So, I don’t buy the distinction between judicial review and judicial supremacy in the current environment. Indeed, Robert notes correctly that both elected branches have conceded as much, .

Moreover, the Constitution leaves it to Congress to establish most of the judiciary. Federal district and appellate courts, among others, exist because Congress says-so. Their numbers and jurisdiction are determined by Congress. Congress determines the number of justices who will sit on the Supreme Court. And there is no explicit provision in the Constitution for the power of judicial review itself. It’s an implied power. It is difficult to believe that the framers intended such an institution to hold sway over the very Congress that created it, or major parts of it.

Specter’s letters are absurd because he believes in judicial supremacy when the Court advances an agenda he supports. He has never joined any House efforts, or pursued efforts on his own, to assert congressional authority.

Rather than lauding the brilliance of Marbury v. Madison, an honest debate over judicial review is long overdue. Rather than the judiciary determining for itself what its power should be, Congress and the states should be strongly urged to participate — perhaps resulting in a constitutional amendment more clearly defining the power of the courts. As unlikely as this is today, what’s the alternative? More judicial usurpation? Of course, if we had a majority originalists on the Court, the need to address the systemic problem might be lessened for presumably these justices would adhere to a restrained approach to judicial review. But I can’t say that’s occurred very often in our history. The history of the Court is one of ever-expanding dominance over the other branches. (Every now and then the Court issues a promising decision suggesting it has previously gone too far, but promising is all it turns out to be.)

Of course, the Court isn’t alone in overstepping its authority. Congress and the Executive do as well, but usually not at the expense of each other. (At the expense of state power and individual liberty.) The struggle for power between Congress and the Executive has pretty much played out as the framers’ planned. But not so with the judiciary. And the root of the problem is judicial review.



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