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Judicial Review, Democracy, and the Fragility of Judicial Power

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Yesterday’s thread had a discussion about the democratic legitimacy of judicial review. As it happens, I have a book to recommend on the subject! But if you’re looking for free text, I had a paper published recently in Perspectives that’s pertinent to the question of judicial review being necessary as a bulwark against other political actors determined act unconstitutionally.

The tl; dr thesis of the paper is that “judicial supremacy” is an incoherent concept that misdescribes how judicial power actually functions and how constitutional norms get established. More important for our purposes is the literature that I think logically compels this conclusion. It’s critical to understand that politically meaningful judicial review can exist only with substantial support of other political elites (which, in turn, is inherently going to limit the extent to which courts can constrain political elites, a pattern that goes back to Marshall’s capitulation to Jefferson in Marbury and Stuart v. Laird.) Hamilton’s insight about the judiciary’s lack of coercive and appropriations authority remains a critical insight. In addition, the Constitution gives Congress all kinds of powers to constrain courts and punish judges if it chooses to use them:

  • The size of the Supreme Court and not only the size but the existence of other federal courts is left entirely to Congress.
  • Article III also empowers Congress to make “exceptions and regulations” to the jurisdiction of federal courts.
  • Congress cannot reduce the salaries of federal judges and justices, but it can make their lives miserable in a lot of other ways. If the Supreme Court’s broad discretion over its docket was replaced by mandatory appeals and chambers limited to one clerk, we wouldn’t see a lot of octogenarian justices.

The strong form of judicial review that took hold in the United States wasn’t the result of the judiciary seizing power; it was the result of political elites in other branches favoring the expansion of judicial power. This presents a somewhat different problem for democratic theory than the “counter-majoritarian difficulty” framework suggests. But any useful discussion of the legitimacy of judicial review needs to proceed from realistic assessments of the source of judicial power.

A final point to make is that the current relative equilibrium in which elites in both parties support strong judicial review and refrain from using the tools the Constitution gives them to attack the courts is not an inevitable feature of American constitutionalism. Merrick Garland is the canary in the coal mine: elite polarization and the fact that once Kennedy retires the Court is going to be strongly and consistently aligned with one partisan faction or another will have major consequences for the federal judiciary. Barring a sudden, unlikely partisan realignment, short-staffed courts are going to become endemic in times of divided government. Manipulation of the size of the court and other major clashes between the courts and the other branches are possible. We have only scratched the surface of the impact of the McConnellization of American constitutionalism.

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