Any President Could End Judicial Review With a Single Sentence

Krystal Ball explains judicial review

by Thomas Neuburger

"The weird thing about judicial 'originalism' is that the explicit principle of judicial review is nowhere to be found in the Constitution."
—Ryan Cooper, "Democrats have a better option than court packing"

The Supreme Court has no mechanism to enforce a power it was never given. A single sentence could end their having it.
—Yours truly

It's refreshing to finally read someone other than Thom Hartmann (and myself, thanks to Mr. Hartmann) agree that Marbury v. Madison, the 1803 Supreme Court decision in which the Supreme Court unilaterally gave itself the power to overturn Congress, was wrongly decided.

Read the last part of that sentence again. First: The Constitution did not give the Supreme Court power to overturn Congress. The Court was designed simply to be the highest rung in the ladder of courts of appeal. The right to overturn Congress was given to the Court by the Court.

Then consider: What would happen if it was wrongly decided? "Law" that was decided by the Court would be overturned — both Roe v. Wade and Citizens United — but more, a two-and-a-half-century-long practice of the Court overturning laws, would be overturned. The supreme importance (sorry) of the Court in our lives would be overturned.

We'd no longer be slaves to nine justices and their decisions; we'd be slaves to our laws instead, for good or ill, as the Founders deliberately intended.

In many ways, the practice of "judicial review" by the Court is the most undemocratic element of a system that contains many undemocratic elements, from the Electoral College to the Senate itself. That undemocratic element ... would end.

The Fight to Replace RBG

Now consider the fight over the successor to Ruth Bader Ginsberg, the justice who recently passed away. Why is this battle so consequential? Only because the Court and its power is consequential.

But what if it wasn't? What if the Court, stripped of the power to overturn Congress, was simply a higher court of appeals?

If that were the case, the escalating war between pathological Republicans and status quo-serving Democrats for control of the Court would be made entirely moot. We'd see no more headlines like the ominous "Ginsberg's passing brings political chaos". Who would fight to the death to control the Court if the Court had so much less power?

"Rule by the bench" would largely disappear from American lives, and in the main our lives would be better. Yes, a "constitutional right of privacy" may not have been discovered (Griswold v. Connecticut) if judicial review had never existed, though Griswold leans heavily on the Fourteenth Amendment, but also, corporate personhood (Santa Clara v. Southern Pacific) and the free speech rights of money (Buckley v. Valeo, Citizens United) would both have died prior to conception.

In short, without judicial review, we'd have to rule ourselves via our laws and our lawmaking process. Perhaps that would increase the percentage of people voting.

Does the Court Control the President?

But let's look at a simple specific case. What if Congress expands Medicare and the Court says No, that isn't constitutional? Does the President have to do what the Supreme Court orders? The short answer, frankly, is no. Would that not solve our "Supreme Court problem" in an instant, with no muss or fuss whatever?

It's hard to say that more simply, but I'll try. What if the president, instead of obeying the Court, just listened and moved on? The extraordinary power of the Court over American life would simply and instantly end. No further action needed.

The Origins of Judicial Review

Here's Ryan Cooper to explore this in more detail:

[T]here has been comparatively little attention to the simplest and easiest way to get around potentially tyrannical right-wing justices: just ignore them. The president and Congress do not actually have to obey the Supreme Court.

The weird thing about judicial "originalism" is that the explicit principle of judicial review is nowhere to be found in the Constitution. All of that document's stipulations on how the courts are to be constructed are contained in one single sentence in Article III: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." 

Note that judicial review, a right "discovered" in 1803, was itself an act of partisan political manipulation:

Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.

So the Court gave itself this power to benefit Jefferson in a dispute with Madison, and did it in a way that made Jefferson less likely to object.

The following describes well and succinctly the obvious political background to the case. It's roots are in the conflict over appointments between an outgoing, lame duck administration, and an incoming administration of the opposite political party:

In the weeks after the Federalist president John Adams lost his bid for reelection to Democratic-Republican candidate Thomas Jefferson in 1800, the Federalist Congress increased the number of circuit courts. Adams placed Federalist judges in these new positions. However, several of these 'Midnight' appointments were not delivered before Jefferson took office, and Jefferson promptly stopped their delivery as President. William Marbury was one of the justices who was expecting an appointment that had been withheld. Marbury filed a petition with the Supreme Court, asking it to issue a writ of mandamus that would require Secretary of State James Madison to deliver the appointments. The Supreme Court, led by Chief Justice John Marshall, denied the request, citing part of the Judiciary Act of 1789 as unconstitutional.

Justice Marshall and the rest of the Court split the baby, gave Marbury the right to his commission, but said it couldn't be granted because one part of the law that granted it conflicted with one part of the Constitution. From the same source:

Though Marbury was entitled to his commission, the Court was unable to grant it because Section 13 of the Judiciary Act of 1789 conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void.

So here we are, two and a half centuries later, ruled by a Court that's almost always far more conservative that the nation it rules.

Jefferson himself, by the way, hated judicial review. He called it the "despotism of an oligarchy ... Our judges are as honest as other men, and not more so."

Ending Judicial Review With a Single Sentence

The solution is simple — the president can just ignore the Court, which has no constitutional mechanism to enforce a power it was never given:

As Matt Bruenig argues at the People's Policy Project, it would be quite easy in practical terms to get rid of judicial review: "All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power." So, for instance, if Congress were to pass some law expanding Medicare, and the reactionaries on the court say it's unconstitutional because Cthulhu fhtagn, the president would say "no, I am trusting Congress on this one, and I will continue to operate the program as instructed."

"No, I'm trusting Congress on this one, and I'll continue to operate the program as Congress instructed."

Presto-chango, no more judicial review. Gone forever. No more ideological battles over Supreme Court seats. No more retaliatory court-packing schemes and appointments. All gone forever, gone in a single stroke.

The good news is, this is all a president would actually have to do. The the only downside is, some president would actually have to do it.