20 July 2005

On Ending Judicial Review

Apropos to the current need to consider Judge Roberts for the Supreme Court vacancy, there's a recent essay in Dissent by Professor Mark Tushnet proposing the end of judicial review on the ground that it is antidemocratic and tends to thwart the will of the people as expressed in legislation. In the best of all possible worlds, there might be something to this; however, Professor Tushnet's essay is not convincing for two reasons.

First, Professor Tushnet correctly notes that

"Equal Pay. Equal Rights. 40 Hour Work Week. Social Security. Medicare. Clean Water. Clean Air. Safe Food. Freedom of Speech. Voting Rights." All but the last two were achieved primarily through legislation, and some—the social welfare achievements of the modern state—had little connection to the Supreme Court, except when it obstructed them.

This statement falls prey to several fallacies:

  • It presumes that one can do without any of those items. If it took judicial review to guarantee free speech and voting rights, that is enough justification for judicial review right there (and we'll see why later). Then, too, there's the question of the relative value of the accomplishments proclaimed (Professor Tushnet is quoting a pro-Democrat t-shirt).
  • It assumes that the Court's past instances of "obstruction" of social welfare would be replicated if the identical matters are heard today. That, of course, assumes that the Court has not learned from its past mistakes.
  • It assumes that the legislation had no relationship to judicial review. That is clearly untrue of the first two items on the list, and is arguably untrue of half of the remainder.

The real key is the subject matter of the particular legislation. Bluntly, not all subjects that are properly the concern of government are properly the concern of legislation; consider, for example, the decision to allow or deny a specific individual's attempt to enter the country. Further, not all of the remaining subjects are properly the concern of the executive, either; consider the propriety of the FBI keeping extensive files on the ACLU, which cannot be properly determined by the very branch and agency that is keeping the files!

But, leaving aside the logic problems, there is an unfulfilled factual premise. It is this:

The legislature (and executive branch) accurately represent the "will of the people."

To slightly paraphrase a famous jurist, "Don't hand me a ballot with only one or two candidates per office and tell me it's a free election." In fact, some of the most critical controversies of the last few years have involved (or been the direct consequence of) attempts by the entrenched "ruling class" to ensure that it remains entrenched. I'm referring not just to "partisan gerrymandering" (or, for that matter, gerrymandering of any kind), but to campaign finance, outright corruption, and election rules designed to ensure that only a "mainstream" candidate has a realistic chance to win. Quickly: How many members of Congress are neither Republicans nor Democrats? (It's not zero; it's not as many as five. Out of 538, counting DC's delegates.) More directly, consider that in this state, in which the polls show well over 60% of the population wants at least some restriction on handguns, in three out of the last four elections for governor both parties put forth candidates who ran on anti-gun-control planks in their platforms. Consider, too, just how few incumbent members of Congress lose reelection races absent criminal or quasicriminal charges. (Hell, some have come darned close to winning reelection from prison!)

That's not to say that the judiciary is perfect; far from it. No human institution is perfect. My point, though is that the arguments about the need for judicial review are predicated upon hypothetical fact patterns that do not resemble reality. By analogy, that's similar to assuming that the ideal conditions one finds in a physics textbook's description of Newton's laws of motion exist in the laboratory, let alone out on the Quad.