Bench Memos

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A Review of Judicial Review


I have resisted rejoining the discussion of judicial activism (which morphed into a discussion of judicial review) because I thought that we had wandered from practical topics to academic ones less relevant to Roberts’s nomination. However, Specter’s recent misguided letter to Judge Roberts emphasized that some elements of judicial review will be relevant to the nomination process, and so I offer a few thoughts about the recent discussion between Matt, Gerry, Robby, and Mark. Given the length, I will comment in several posts.

Gerry and Robby ably point out the difference between judicial review and judicial supremacy. The prior does not require the latter. Or, to put it in wonky terms, Marbury does not require Cooper v. Aaron’s delusions of grandeur about every page of the U.S. Reports constituting the supreme law of the land. There is ample room for coordinate branch construction. Each branch has a duty to interpret the Constitution. At a elementary level, this is accomplished by Congress passing laws which it believes to be constitutional, the Executive by signing and enforcing laws it believes to be constitutional laws, and the judiciary interpreting the laws. The branches need not agree. Thus, Jefferson instructed his U.S. Attorneys not to enforce the Alien and Sedition Acts because he believed the law to be unconstitutional, even though some courts, and implicitly Congress in passing the law, had expressed opinions differing from his. To provide another example, in 1862, Lincoln’s Attorney General was asked by Treasury Secretary Chase whether a Black men are “citizens of the United States, and therefore competent to command American vessels?” Finding that the binding precedent of Dred Scott was limited to the facts, law, and ultimately parties of the case, the Attorney General found that Black men born in the U.S. were citizens, and therefore could command U.S. vessels.

However, the fact that the other branches could exercise their powers of constitutional interpretation regarding these issues (as they could on any constitutional issue) does not remove these issues from the proper jurisdiction of the Court. Coordinate branch construction does not equal the political question doctrine: just because another branch is capable of interpreting a question doesn’t mean that the issue is withheld from the other branches (or, more specifically, from the jurisdiction of the Court), unless the Constitution clearly reserves determination to a particular branch. In the cases of the Commerce Clause, for example, there is no such plain reservation of the issue, and so I must respectfully disagree with Matt concerning the appropriateness of courts exercising judicial review by striking down laws which have nothing to do with interstate commerce.

The writers on this page have done well to illustrate that the legislative and executive branches have a duty to interpret the Constitution. Unfortunately, if one reads the floor statements on McCain-Feingold, or the signing statement of President Bush for the same bill (in which both branches declared their respective belief that sections of the bill were unconstitutional, but suggested that it was not their job to make such a determination), it becomes clear that these branches have bought into the theory that it is exclusively the Court’s job to make constitutional determinations. This is wrong. However, we should not make the opposite error and presume that the courts have no proper authority to review the constitutionality of these enactments.


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