Any self-respecting student of political science is familiar with the practice of judicial review by the Supreme Court of the United States. Introduced into practice in 1803 by Chief Justice John Marshall, the awe-inspiring term refers to a court action declaring a federal or state law, executive order, or administrative rule to be unconstitutional. Marshall did not take this historic decision lightly and, in fact, up until the Civil War the Court struck down a total of three federal statutes and rules. Marshall had no intention, so far as we can tell, to grant a bench of unelected men corrupting power.
But is it possible that by extracting this power from the ambiguities of our founding document, Marshall was limiting the role democratic majorities would play in deciding law in the fledgling nation?
Any cursory examination of the philosophy of our founders reveals that they were not hearty proponents for direct democracy. At every turn, checkpoints were established to curb the appetites and tempers of the collective. Indeed, while the Constitution is a document for the people, it is left to our leaders for interpretation, alteration, and execution. This remains the case up to this day. Even still, there was a sentiment held by our founders which suggested the power of the courts lay in their ability to “keep the latter [representatives of the people] within the limits assigned to their authority” (Federalist No. 78). Hamilton understood that unconstitutional laws would no doubt originate from the volatile, adversarial congressional body. The courts are there to monitor the net impact of these laws.
But any law that comes from Congress can theoretically be traced back to the ballot-box, while the opinions of judges cannot. Judges are the product of legal education, personal philosophy, and judicial expertise. They are legal insiders in every meaning of the term. The very senators who approve the nomination of a Justice don’t share the latter’s entitlement to life tenure. Indeed, our judges are minorities. They are legal scholars equipped with the swift sword of judicial review, a power that can leapfrog the deliberations of congressional leaders and presidents, the very people who determine the makeup of a federal bench.
Yet, empirically, we see that judicial review is rarely exercised. The Court rarely strays from congressional or executive policy, and in many cases the laws that are struck down are defeated effortlessly. What is far more prevalent in the business of our judicial system is the interpretation of statutes. In fact, legal system demands that an attempt at a favorable interpretation be undertaken before a statute is thrown out. In a common law system such as ours, precedent is the general rule and carries with it both historical and institutional importance.
Our federal courts are made up of unelected men and women who more often than not will have no reason to step down over the course of their tenure. As such, they retain a spirit of impartiality that has been the bedrock of the American judiciary since our founding. Our founders were disgusted by the concept of a judge obligated to uphold the policies of the monarch. While they wield the power to overturn majoritarian decisions within a political system ruled, in theory, by the majority, they hold themselves to a high standard of restraint. Whether this decision is made as a matter of conscience or political calculation is indeterminable. What can be observed is that the legal system has managed to cycle between periods of strength and periods of submissiveness in tandem with public sentiment, suggesting that our judiciary has never filled a tyrannical role; I imagine it never will.