[This post was originally published 21 September 2021.]

With the unfortunate (non)decision last week by the Supreme Court allowing the Texas Six-Week Abortion Vigilante Law to go into effect, the Supremes are back front and center in both the news and our outraged headspace. Having done the dirty deed through their ill-defined and suspect “shadow docket”—a device the conservative majority is regularly wielding to undertake major legal change—it’s well past time to reconsider the Court’s judicial review power.

Judicial Review’s Shaky Foundations

Abuse of the shadow docket is a procedural concern, albeit an important one. What we really need to discuss is the power that underlies most of the Court’s most important decisions, regardless how they were docketed.

I want to re-examine the entire notion of judicial review as a part of the Court’s jurisdiction. 

The Supreme Court has two types of jurisdiction granted by Article III of the Constitutionoriginal and appellate.  Its original jurisdiction—matters that go directly to the Court—doesn’t account for many cases. These matters include cases between state governments and cases involving ambassadors. The Court’s appellate jurisdiction is much broader, including cases coming up on appeal from lower federal courts and any cases in which the United States is a party. 

But Article III nowhere grants the Supreme Court authority to declare unconstitutional any federal or state legislative or administrative act. The Court’s own website admits as much:

The best-known power of the Supreme Court is judicial review [and]… is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).

The Strange Case of Marbury v. Madison 

Creating other federal courts and granting additional jurisdiction to those courts—including the Supremes—is left to Congress through regular legislation. Indeed, one of the first laws passed by the new Congress and signed by the new President in 1789 was a Judiciary Act. This created the federal district and circuit courts. It also contained a clause that would be the first law declared unconstitutional by the Supreme Court in Marbury v. Madison.

I won’t bore you with the very convoluted details of Marbury, although I’ve read and analyzed the full opinion many times and taught it for several years. I doubt whether William Marbury or generations of American law students understood them much either. The Law-in-a-Nutshell version? Marbury v. Madison (1803) was a landmark U.S. Supreme Court decision that established for the first time that federal courts had the power to overturn an act of Congress on the grounds that it violated the U.S. Constitution. This will be testable.

Chief Justice John Marshall, of whom I am inordinately fond and about whom I may one day write a fictional biography, made a very big legal land grab in his Marbury opinion. And regardless of how many times Marshall asserted otherwise, the power to determine constitutionality of federal and state laws and administrative acts is not an obvious, natural, or immutable prerogative of the courts. 

As imminent a jurist as Justice Felix Frankfurter, whose name has evinced titters from law students for over a century, said of Marbury, “Its reasoning is not impeccable and its conclusion, however wise, not inevitable.”

Skirting Controversy

Marshall was a brilliant strategist. As a Federalist, he was politically opposed to then-President Jefferson—who was also his cousin. Jefferson did not much like the idea of the Supreme Court—a Federalist stronghold— increasing its powers unilaterally. However, in striking a provision of the Judiciary Act, Marshall actually gave Jefferson the outcome he wanted. Federalist William Marbury was not appointed a federal magistrate for the District of Columbia. But Marshall asserted the Court’s judicial review authority in the process. 

In addition, having asserted the Court’s judicial review authority over Congressional acts in Marbury, the Court used this power sparingly for the remaining 32 years of Marshall’s term as Chief Justice. Which is not to say there were no challenges to judicial review. Angered by the Court striking down a statute in 1832, President Andrew Jackson famously said, “John Marshall has made his decision; now let him enforce it!”

Growing Disfunction

There have long been eminent dissenters from the received view of judicial review as the only correct form of constitutional review. Thomas Jefferson wrote in 1820, 

You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

During his first inaugural address in 1861 and still smarting from the overreach of the Court in Dred Scott v. Sandford,  Abraham Lincoln asserted, “[T]he people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

For the last 50 years, judicial review has engendered more persistent controversy than at any time since Dred Scott. The liberal-leaning Warren Court expanded both the reach and frequency of judicial review in manifest ways distressing to conservatives. Over the last decade, appointments to the Supreme Court have become subject to bare-knuckled and cynical political maneuvering by Senate Republicans. Lifetime appointments have led to the unseemly vulture-like death watches over aging justices, most recently Ruth Bader Ginsberg. 

The result is that the once-revered Supreme Court has steadily fallen in public regard. Over the past 20 years, approve/disapprove polling on the Court has deteriorated from 62/29 in 2001 to 49/44 today. 

The Supreme Court’s extra-constitutional judicial-review power rests on acquiescence by Congress and the Executive, as well as state governments. The steady decline in the perceived impartiality and legitimacy of the Court is therefore witheringly dangerous.

Is There a Better Way?

With apologies to Chief Justice Marshall, there are other ways to review the constitutionality of legislative and executive acts. I would argue, given the steadily eroding and possibly irreversible position of the Supreme Court, there are better ways, too. 

The first step in considering alternatives is to stop saying judicial review. What we’re talking about is constitutional review—of which judicial review is one alternative method.

I’ve written before about how other democracies structure their constitutional courts, but I focused on size, tenure, and selection. What about form and jurisdiction?

If I Were In Charge…

As Emperor of this Blog, here’s what I propose as an alternative for us to ponder. It’s based on the French model, currently in use in eight countries including France.

First, divide the Supreme Court’s appellate jurisdiction into thirds: legislative review, administrative review, and cassation review (civil and criminal appeals from lower federal courts). 

Next, divvy up the Jurisdiction Pie like this:

  • The Supremes keep their Article III original and appellate jurisdiction, as well as cassation jurisdiction over lower federal court cases. They become a Court of Cassation for the federal judiciary, as is the case in many other countries.
  • Constitutional review of legislative acts—both federal and those coming from the states—goes to an Article I tribunal. Congress establishes by statute, signed by the President, a Constitutional Council. I really like how France set theirs up. Nine members appointed for nine-year terms, three by the President, and three each by the leaders of the two houses of the legislature. Also—a nice touch—all former presidents (at their option) can be members. 
  • Constitutional review of executive-administrative acts—again federal and those coming from the states—goes to another Article I tribunal. Many countries have some version or another of a Council of State. (John Marshall served on just such a body, the Virginia Privy Council, in the 1780s.) This Council would replace the Court of Appeals for the Federal Circuit and the Supreme Court as the highest levels of administrative appeals. The membership of the French Conseil d’État comprises a mix of heads of executive departments, regular and special councillors, and various masters. The total membership is about 300, so they’re set up to handle a prodigious caseload. The Conseil is chaired by the Prime Minister or the Minister of Justice.
It Gets Even Better

It’s also not unusual in many countries for these alternative constitutional tribunals to issue advisory opinions on statutes and executive actions when requested. Not being bound by the case-or-controversy requirement of Article III courts, this would allow for greater efficiency and certainty than the current cumbersome system of a case working its way to the Supreme Court.

Not being Article III judges, members of these tribunals would be subject to fixed terms. This is already the case with other Article I tribunals. For example, the judges on the Court of Appeals for the Armed Forces serve 15-year terms.

Even more radically, I assert that all of this can be accomplished by act of Congress and without amending the Constitution. While granting them every bit of the jurisdiction stated in Article III, the Supreme Court can be stripped of any jurisdiction not specifically enumerated there. Both of our new entities can be created, organized, and assigned jurisdiction by Congress through regular legislative process. 

The Big Picture

The upshot of this thought exercise is this. I don’t want a constitutional tribunal of any form to be easily changeable like the membership of the House of Representatives. But I firmly believe we need to allow our constitutional tribunal(s) to be predictably responsive to the evolving consensus of the American electorate. 

Terms of nine or 12 or 15 years with predictable turnover would allow for steady change in membership to facilitate realignment with changing political consensus, economic reality, and demographic realities. We don’t need to be held hostage to the capricious lifespans or retirement plans of individual justices. Fixed terms for members of constitutional tribunals will vent the steam from what has become a dysfunctional and corrupt appointments process in the Senate. We can do better.

Admittedly, none of what I just proposed is slam-dunk unarguable. But all I propose has a straight-faced basis in law supported by good-faith arguments. 

Of course, it’s possible—even probable—the Roberts Court might declare such radical reforms, well, unconstitutional. That would be a dangerous thing, however. To paraphrase Jackson, John Roberts can make his decision; then let him enforce it.

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