The War on an Independent Judiciary

July/​August 2005 • Policy Report

On April 25 the Cato Institute held a Policy Forum, “In Defense of an Independent Judiciary,” in the Institute’s F. A. Hayek Auditorium. Speakers included Roger Pilon, Cato’s vice president for legal affairs; John Yoo, a visiting scholar at the American Enterprise Institute who served as deputy assistant attorney general in the Office of Legal Counsel in John Ashcroft’s Justice Department; and Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation. Excerpts from their remarks follow.

Roger Pilon: It comes as no news today that we’re in the midst of an intense battle for the nation’s courts. With the Terri Schiavo matter, however, it has seemed more a battle against the courts, with the attacks coming mainly from the right, although some are coming from the left as well. And it isn’t just the independence of the judiciary that’s at risk; it’s the institution of judicial review as such, as if it were somehow foreign to our constitutional design—invented from whole cloth by the Supreme Court itself in the seminal 1803 case of Marbury v. Madison.

Given those recent attacks, a very brief history seems in order. Our legal system evolved in large measure from English common law. Initially, toward the middle of the 12th century, judges in the king’s courts began deciding disputes between individuals, consulting both reason and custom to “discover” the law; but eventually the courts began ruling on disputes involving the Crown and Parliament. That early form of “judicial review” reached fruition in Dr. Bonham’s case, decided by the Court of Common Pleas in 1610, in which Lord Coke invoked “higher law” to disallow an act of Parliament:

And it appears in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it and adjudge such act to be void.

The first law professor in the colonies, George Wythe, who taught Thomas Jefferson, John Marshall, and many others of the founding generation at the College of William and Mary, invoked that kind of argument when he spoke of the power of courts to review the acts of the political branches. And the Founders, for their part, came increasingly to appreciate that power during the 11‐​year period from 1776, when independence was declared, to 1787, when the Constitution was drafted. For as democracy was taking root in the new states, the vices that public choice economic theory would later explain were coming to the fore: legislatures were running amok, abrogating debts, expropriating property, and otherwise restricting liberty. Viewing such actions with increasing alarm, those who would soon be framing the new constitution saw the judiciary as a brake on that kind of democratic lawlessness.

Thus, by the time they began drafting the Constitution, the Framers understood the need for an independent judiciary that would serve, as James Madison put it in the first session of Congress, as “an impenetrable bulwark against every assumption of power in the Legislative or Executive.” Indeed, Alexander Hamilton had stated the basic argument a year earlier in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

It seems to me that that pretty much settles the question of whether the power of judicial review was written from whole cloth a few years later in Marbury v. Madison or, instead, was clearly understood before that and was incorporated in the “judicial Power” that was granted in Article III of our written Constitution. I don’t think it could be any clearer that the Framers contemplated that the courts would exercise judicial review.

Yet in the early years of the Republic the courts were not all that active, and for good reason: questions never got to the courts because members of the political branches opposed policies they believed to be unconstitutional. Unlike today, Congress actually debated whether it had authority to enact various proposals. And when constitutionally questionable measures did get out of Congress, presidents would often veto them, not so much on policy as on constitutional grounds. The political branches took the Constitution seriously, that is, they didn’t leave it solely to the courts to uphold our basic law. Thus, although the courts occasionally exercised judicial review, it was infrequent because the other two branches often killed unconstitutional legislation before it reached the courts.

Let me touch now on the Civil War Amendments, because it’s where so much of the confusion arises today, especially for conservatives, many of whom seem still to be at war with those amendments—if not with the Civil War itself—and with the role of the courts, in particular, in enforcing the provisions of section 1 of the Fourteenth Amendment.

It strikes me that if you read the debates leading up to the war, the debates in the 39th Congress, which drafted the Fourteenth Amendment, and the debates of the ratifying conventions, you can come away with no other view than that those who wrote and ratified section 1 of the amendment —including the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause—meant for it to be enforced against the states by the courts. In fact, the version of section 1 on which Congress finally settled, unlike the previous versions, was self‐​executing, meaning it did not rely on subsequent legislation by Congress to be enforceable.

The Fourteenth Amendment “completed” the Constitution by incorporating at last the principles of the Declaration of Independence, which had been compromised at the founding by the document’s oblique recognition of slavery. Now, for the first time, we had far‐​reaching federal remedies against state violations of our rights, which changed fundamentally the relationship between the federal government and the states. No longer would state actions be immune from scrutiny by federal courts concerning whether they were consistent with rights guaranteed by the Bill of Rights, which was understood to incorporate our natural and our common law rights. However unevenly courts would go on to exercise their new authority —and it was very uneven—people could now look to the courts for protection against overweening government, federal or state.

Yet it was that very brake on political power that would prove the undoing of the grand constitutional design. The most scathing attacks on the power of judicial review would come from Progressives in the years before and during the New Deal, culminating in Franklin Roosevelt’s infamous Court‐​packing scheme and in the Court’s effectively abandoning review of legislation affecting vast areas of life. Indeed, there is a striking parallel between the attacks on the judiciary one hears today from conservatives and those one heard from the Roosevelt administration during the New Deal. And there is irony too. For conservatives, who are generally opposed to large government, are joining forces today with Rooseveltian liberals, leaving us with few consistent advocates of limited government. In their zeal to use government for their own ends, and their misunderstanding of the Constitution’s limits on democracy, both camps have abandoned the basic Madisonian insight, that the courts are there to stand as a “bulwark—between us and tyranny.

John Yoo: First, I think, as a textual matter, judicial review, which is just the power of the federal courts to enforce the Constitution instead of a federal statute when the two are in conflict, arises directly from the text. The first clause you would want to look at would be the Supremacy Clause, which says that the Constitution is the supreme law of the land and orders state judges to put aside any conflicting state laws.

The Supremacy Clause makes two things clear: First, that the Constitution is the supreme law of the land. And second, that the Constitution is law that should actually be applied in courts. The going theory, I think, among many liberal scholars is that the Constitution is a political document, not a legal document, and that it was never meant to actually be enforced in courts. But in the Supremacy Clause, you have a direct order to state judges to apply the Constitution in cases before them. It seems like a very straightforward recognition that the Constitution is really law.

The second textual provision we want to look at is the Oath Clause, which requires all federal officers to take an oath to uphold the Constitution first, above everything else. And then the third clause to look at would be Article III of the Constitution, which gives the federal courts jurisdiction over all cases arising under the Constitution, federal laws, or treaties. Again, another direct recognition that the Constitution is law that would give rise to cases or controversies that would be heard in federal court.

You could also look at the structure of the Constitution. It creates three independent branches of government, and each of those branches has a particular duty. The executive branch implements the laws and participates in the legislative process through the veto. The Congress passes the laws. And the judiciary decides cases or controversies arising under federal law.

Judicial review is really no different from what the other two branches should be doing but, as Roger observed, often are not doing, which is interpreting the Constitution in the course of performing their own duties. So we would not think it irregular, and in fact we would hope, that the president would veto laws that he believed to be unconstitutional. And we would hope and expect that Congress would refuse to enact laws that it believed to be unconstitutional.

Similarly, judicial review is just the courts performing the same duty—to put the Constitution first—when they perform their own unique constitutional function, which is to decide disputes between parties. So what is judicial review? Judicial review arises when a court has to make a choice between the rules set out in the Constitution and a rule that’s set out in a federal statute.

So if you look, for example, at Marbury v. Madison, the first case where the Supreme Court exercised judicial review, there was a conflict between a federal statute, passed in 1789, and the Constitution. And the Court had to choose one or the other. There was no way for it to escape that choice. And judicial review really just means that the Court, like all other federal officers of the government, have to put their allegiance to the Constitution first and pick the constitutional rule over an inconsistent statutory rule.

Having said that, let me make some observations about the Schiavo case. Because, in that case, I do think that criticism of the courts is appropriate. The question is, when does that criticism go over the line into excessive threats against the federal judiciary? Lately we’ve had comments by some of the political leaders in Congress and also by members of interest groups outside Congress that members of the federal judiciary ought to be investigated because of their decisions. That we ought to consider impeachment proceedings against some. I think that really crosses the line.

I think that the federal courts in the Schiavo case actually did what they were supposed to do and reached the right result. I was very surprised when I read the legislation Congress passed in the Schiavo case and compared it to what the papers, or the media, made it sound like the legislation did. You would have thought that the legislation required that the federal courts order Ms. Schiavo’s feeding tube not be removed.

But in reality, all Congress did was give the federal courts jurisdiction to review state court decisions about the Schiavo case. It didn’t require the federal courts to reach any particular result. It didn’t even require the courts to issue an injunction. All it did was say the federal judges could look at the case. And, in fact, it didn’t even create what we call a cause of action. It didn’t give Ms. Schiavo’s parents or any other party the right to stop what was going on in Florida. All it did was extend federal court jurisdiction over the case.

So the federal judges exercised that jurisdiction. But they found that there had been no cause of action created for Ms. Schiavo or her family or other representatives. And that is why it’s so odd to hear the criticisms of the courts. You have interest groups and politicians criticizing federal judges for being activists, for going beyond their judicial duty, when all they did was refuse to get involved in a political dispute in which there was no substantive cause of action. In fact, what the federal judges were doing was exercising judicial restraint. They were doing the very opposite of activism. It would have been activism if a federal judge had taken that jurisdiction and then run with it, creating a wholly new cause of action that had never been recognized before.

I think the real damage that’s done here is to core conservative principles of constitutional law. What ever happened to federalism? Conservatives used to criticize Roe v. Wade, I think quite appropriately, because it seized an issue from state legislatures and ultimately nationalized and judicialized it, so that only the Supreme Court could decide that issue.

And what did you have here? You had Congress trying to push the courts into doing the same thing with this life or death decision. It’s hard to see analytically why this is really any different from the abortion debate and why conservatives would want the federal government to nationalize the issue of the right to die.

I think this is a trend in Republican politics right now. Look at the Bush administration’s efforts to stop the use of medical marijuana in California. Look at the gay marriage amendment. Those are social issues on which Republicans are giving up their federalist principles and pushing for uniform national laws. Which is exactly what we used to criticize liberals for in Roe v. Wade.

It is to be hoped that the damage is not going to be permanent. But I do think that the Republicans in Congress have made it very difficult for conservative lawyers to maintain principled arguments in any of these areas.

Todd Gaziano: Any concern with judicial tyranny should be consistent with an overarching concern for all forms of government tyranny. The legitimate exercise of judicial review is a vital protection against tyranny by the other branches. Chief Justice Marshall’s explanation of judicial review in Marbury v. Madison was correct, even if it is mistaken for the “judicial supremacist” approach some espouse today. I agree with Roger and John’s analysis of that case and the proper role of judicial review. Marshall wrote that the courts must apply the Constitution in their proceedings, like the other branches, which is hardly a radical understanding of what a judge’s oath requires. More recently, however, some courts, especially the federal courts, have tried to assume a greater power. In Cooper v. Aaron (1958), the Supreme Court wrote that once it decides an issue, that is the final word on the subject. Once it speaks, there can be no further debate. That’s a tyrannical notion, inconsistent with Marbury and contrary to the duty of all citizens to follow the actual Constitution not erroneous constitutional decisions that don’t personally bind them.

Despite the supremacist brand of judicial tyranny, I still think Hamilton was right in Federalist 78 that the courts would be (and are) the least dangerous branch. And I think Madison was correct in Federalist 48 that the legislative branch is always the most dangerous branch. Yes, I’m concerned about judicial tyranny. But it’s a symptom of a much larger problem: government tyranny and, in particular, national government tyranny.

Judges act tyrannically when they use their power to impose personal preferences that are contrary to what the Constitution and laws require. But they can act tyrannically either by striking down laws based on imagined rights not in the Constitution or by not striking down laws that clearly do violate the Constitution. Of the two tyrannical acts, I think they err much more often today in not striking down laws. Congress and the president act tyrannically when they do what they want instead of what the Constitution commands, such as passing blatantly unconstitutional campaign finance controls. The courts conspire in that tyranny when they don’t strike down such abominations. In recent years, congressional tyranny and judicial inaction are a greater cause for concern than other forms of judicial activism.

I do want to touch on the Schiavo controversy briefly. My own views largely match what John Yoo said. I discussed my views in more detail at a Heritage Foundation event last week, but I don’t think my colleagues at Heritage will mind my saying that they shared my position. All of us at the Heritage Legal Center thought the Schiavo legislation was flatly unconstitutional, and for multiple reasons.

Putting aside the actionable constitutional problems (e.g., that the bill provided it wasn’t creating a new federal cause of action made the standing and subject matter jurisdiction problems more serious), the legislation also violated core constitutional principles. My federalism argument against what Congress did included that it relieved the pressure on the Florida Legislature to pass several laws of general applicability that could have saved Schiavo. The legislature clearly did have constitutional authority to enact several such fixes. But Congress’s unconstitutional act let state legislators off the hook and may have allowed what many people believe was a tragic death.

For Congress to act wisely, it really must study the substantive provisions of the Constitution and the proper role of judicial review more closely. Most members of Congress work very hard at most of their job. But, unfortunately, they took a shortcut in the Schiavo matter. Some members of Congress were lazy, and they took the advice of some well‐​meaning but sadly ill‐​informed people about the proper role of judicial review. Before Congress criticizes the courts, it needs to understand what real tyranny is. Its first obligation is to do no harm itself.

This article originally appeared in Cato Policy Report on July 1, 2005.

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