Proposals Considered in 1936 on How to Curb Judicial Review

Brian Tamanaha

Debates on what to do about judicial review are as old as the Constitution. Looking back helps gives us some perspective on this issue. Max Lerner published an essay in The Nation in March of 1936 that ran through the different options being discussed at the time. He mentioned and dismissed three proposals as unrealistic or insufficient solutions: pick better Presidents, who would then select better judges; set up a system in which the justices issue preemptive advisory opinions on legislation (reducing uncertainty about what would survive challenge); and find judges who will practice "self-limitation."

Lerner moved on consider more drastic measures, the first of which was to "pack" the Court (almost a year before Roosevelt tried to do just that). Lerner backed off of this proposal owing to the impending election campaign. Then he wrote:

The most frequent suggestion for a judicial curb is to regulate not the numbers on the court but the manner of their voting. It would provide that a majority of the justices were not enough to invalidate an act of Congress. Some number such as seven or eight or more than two thirds of the court is usually suggested. The obvious answer is of course that, granted the existence of the judicial power, this would leave the decision on constitutionality in the hands of one or two justices. The answer to that answer is that just such an event is intended, that since you can usually count on one or two justices who will vote on the side of Congress, this leaves the decision on economic issues where it belongs--with Congress and the President. Another device, intended to have somewhat the same effect, would be to provide that unfavorable court decisions could be overruled by a two thirds vote of Congress...

Lerner went on to also consider a Congressional act that abolishes the court's power to invalidate legislation, or removes the jurisdiction of the Court to hear cases with respect to certain types of legislation.

He pointed out the irony of the fact that all of these proposals would be subject to constitutional challenge, which the Court would then decide. "And it is very unlikely that, given the present temper of the court and the present tension of the country, the court would be willing to sign its own death warrant."

Questions about constitutionality aside (and surely they could be accomplished by amendment), Lerner's proposals merit consideration. In particular, going a step further than Lerner, what about requiring a unanimous vote for any decision that strikes legislation? This keeps alive the possibility of judicial review, but limits it to rare situations that earn complete agreement. That Brown was unanimous has often be pointed out in its favor, arguably providing it more legitimation than any of the reasons given in the opinion. The grandeur of unanimity has a standing and credibility all its own.

Yes, that allows a single obstructionist justice to keep on the books a statute that eight others think should be struck; but this can be turned around and looked at instead as taking away veto power of legislation from five justices who disagree with the other political institutions. Which of these two prospects seems more objectionable from the standpoint of political theory and constitutional practice?

Lerner's other proposal, allowing Congressional override by a two thirds vote, also has merit. It's main flaw is that it turns a constitutional question into a matter of pulling together enough political votes, albeit at a higher threshold. To those who believe that all Constitutional questions are ultimately political questions this is not objectionable. But for those who believe that some Constitutional questions, like questions about rights, are about legal principles that cannot be overcome by a vote (even a super majorty vote), requiring a unanimous decision by justices is superior because it keeps the question a legal one (at least in theory).

It seems highly unlikely that judicial review will be abolished, and doing so raises worrisome questions. Both of these proposals have the merit of retaining it while limiting it. Given that both the Right and the Left are currently unhappy about judicial review, this is a propitious moment to consider proposals of this type. We had better take this up quickly, however, before Roberts (or the next appointee) gets on the Court, and after a few favorable decisions the Right starts to like judicial review again. Then we'll have to wait for the next round of these perennial debates on what to do about judicial review.
Posted 7:14 PM by Brian Tamanaha [link]