Tuesday, April 03, 2012

Judicial Review of federal statutes

Sandy Levinson

First of all, I certainly do not expect President Obama to attack the legitimacy of judicial review, which would probably be bad politics. But, as an academic, I'm certainly not enjoined from asking if anyone thinks we've really been well served, over our history, by the power of the Supreme Court to declare FEDERAL statutes unconstitutional. (I capitalize this simply to make the point, following Jusice Holmes, that it is far, far easier to defend judicial review of state statutes than of federal ones.) To what degree has such judicial review benefitted the country? It's hard for me to come up with a positive answer, even if the Court in fact struck down a relatively unimportant statute or two that I didn't like. Note, also, incidentally, that there might be a stronger claim to evaluate basically unilateral presidential action--think of the Steel Seizure Case--or administrative decrees, since in these latter instances, they do not have the imprimatur of securing majority approval of both houses of Congress, which, even granting the existence of the indefensibly apportioned Senate, is still a hell of a lot more representative the the President or administrative agencies.

Or, if we're going to be stuck with federal judicial review, maybe we should take a leaf from the great states of North Dakota or Nebraska, the former of which requires 4 of their 5 justices to agree in order to strike down a state law as unconstitutiona, the latter of which requires 5 of 7 judges. So why shouldn't it take a vote of at least 7 justices to invalidate a federal law? That would have the virtue, most of the time, of requiring a de facto "bipartisanship" in any ruling striking down a federal law, unlike the situation we're now in, where five conservative Republicans, acting more-or-less simply as conservative Republicans (who might, I grant, actually believe the preposterous arguments that are being made against the ACA), can invalidate the 2008 election and the central consequence thereof. If the country wants the ACA repealed, let them elect Mitt and let a presumptive Republican Senate repeal the filibuster, which might be best for the country.

I know that this is probably futile, and I did choose to describe the arguments against the ACA as "preposterous," but I very much hope that the usual suspects won't clutter up the comment section with yet more arguments pro and con the ACA. I truly think that nothing more need be said about the ACA, save by Marty Lederman, who has truly mastered the briefs and oral arguments. What I would like to read is a defense of the Court's role in monitoring the conswtitutionality of laws passed by Congress (and signed by the President) and/or the pros or cons of emulating North Dakota and Nebraska. After all, if federalism is vindicated by states serving as "laboratories of experimentation," perhaps we have something to learn from these two states.


I suppose this point has been made one way or the other, but I haven't seen it put this way. We normally say your liberty ends where it infringes on the rights of others. If the Court wishes to return to the days of substantive due process and protect the "liberty" of people not to obtain insurance if they don't want it -- despite all the efforts in the law to make that as easy as possible and the weak "penalty" enforcing it -- it needs to confront the clear fact that a free-rider is making the insurance more expensive for others, not only in reducing the risk pool (and increasing the aggregate risk in the remaining pool if those who think they are healthy are the ones most likely to try to go without coverage), but also in forcing the cost of the emergency coverage they will be given by decency and law to be borne by everyone else. Or perhaps it simply won't bother to confront such inconvenient facts.

And by the way: how did the supporters of a commonly shared obligation to obtain a minimum level of coverage -- again considering all the ways it is made as easy as possible, including continuation of coverage through employers for probably the majority of workers, significant expansion of Medicaid, and effectively reduced premiums for middle class purchasers, and the minimal penalties effectively exacted only on tax refunds and credits -- allow that common-sense provision to be framed by the scare-word, "mandate." Give a leg up to opponents or what?

Likewise, how did the Administrative go so passive in allowing a law that bends over backwards to provide for non-profit insurers to be characterized, mostly by alleged progressives, with the meme that the law "drives everyone into the greedy hands of profit-driven private insurance companies." Co-ops and national or multi-state non-profits may be unlikely to exercise as much pricing discipline (or offer as low-cost a policy) as a public option would have, but that is their purpose and the meme is false. An effort to create some perspective on this, and to educate the liberal base on the danger to the entire law in stubborn Congressional resistance to a public option (and to encourage continued consideration of a public option if the non-profit approach proves to be inadequate) might have won enough Democrats and progressive independents over to eliminate the meme that "the public hates the law." As few as seven percentage points of additional support (and roughly the same loss of opposition) would have changed the political landscape entirely.

San Francisco Insurance Help

Due Process...has that policy ever changed in the Prosecution of an individual...when are we going to figure out that the CONSTITUTION still has power!

What concerns me is that this Supreme Court consists of very politically minded individuals who have lost their way in separating their private political prejudices from their judicial philosophy and fealty to Constitutional history.

If Justice Kennedy is truly upset at the Obama administration for allowing individual employees to procure contraception pills or services through their group health plan even at a Catholic owned hospital that serves the general public, then it looks like the more properly designated HeritageFoundationCare law will be declared unconstitutional.

It is Bush v. Gore, The Sequel.

Having a supermajority, as Professor Levinson proposes, can likely limit this sort of mischief, but this level of mischief at the Supreme Court is relatively rare over the decades and centuries. The problem with the supermajority proposal is that federal or state legislation that would fail the McCulloch/Gibbons "rational relation" test would more likely be upheld as it could be literally impossible to amass a supermajority to throw out the offending statute.

We choose our abuses, I suppose. And we have to live through this one, too...

If the mandate is thrown out, maybe support for Medicare for All can finally gain momentum among the elite tribes of DC and corporate boardrooms.

The libertarians painted themselves into a corner on this, as they essentially say they are against the fascistic proposal of forcing people to buy insurance from private insurers, but are in favor of the socialistic proposal of directly taxing people to buy government provided health insurance.

Holmes' famous dissents in the first part of the century against the Gilded Age Supreme Court were based upon the John Marshall inspired proposition that Congress and states could pass any laws they wished affecting economic situations unless the laws were completely without a rational basis--and the Constitution did not proscribe any fealty to any economic theory per se.

Would that the modern Supreme Court heed that sensibility, which John Marshall recognized as well in McCulloch/Gibbons.

"I capitalize this simply to make the point, following Jusice Holmes, that it is far, far easier to defend judicial review of state statutes than of federal ones."

Of course it's easier, if you're a justice nominated and confirmed by federal office holders. Of course, the people who picked you out, and gave you your job, are just too special to have to comply with the Constitution which was specifically written to constrain them.

Why, if you didn't think like that, you probably wouldn't have the job.

Seriously, Sandy, echoing the President's talking point even as he's walking back from it in embarrassment? I thought better of you.

Over the years, there has been criticism of judicial review by the Court. I don't know if there is an alternative that would be acceptable to judicial review, which is not specified in Article III or the remainder of the Constitution as amended to date. Keep in mind the complaints of the right of the limited powers of Congress. But Congress' powers in Article I are spelled out in greater detail than the Court's powers in Article III.

But what about the extension of the unspecified judicial review power of the Court to judicial supremacy over the Executive and Legislative branches of the federal government, even though judicial supremacy is unspecified in Article III or the remainder of the Constitution as amended to date? Should one unspecified power lead to an even greater unspecified power in the judiciary? Keep in mind there is no "necessary and proper" clause in Article III as in Article I for Congress.

In a much earlier thread, I commented on Barry Friedman and Erin F. Delaney's "Becoming Supreme: The Federal Foundation of Judicial Supremacy," which is a great read. It is available at 111 Columbia Law Review, No. 6, October 2011 (and at SSRN, but I don't have the URL at hand). At page 1192, just prior to their "Conclusion: Supremacy's Pinnacle," following a discussion of City or Boerne v. Flores (321 U.S.507, 1997), the authors make this point:

"Of course, the Court itself had long ago 'circumvent[ed] the difficult and detailed amendment process contained in Article V.' [Citing Boerne, at 529.] But by now, this has become an accepted fact of life. It was the Court's job to expound upon the meaning of the Constitution, and those interpretations were generally accepted to bind state and federal governments alike. The tentacles of doctrine had ensnared the federal government."

So apparently Article V may be required to undo the tentacles. But I'm curious as to how originalism - any version - can justify the unspecified judicial review and particularly the unspecified judicial supremacy powers of the Court that was early in the framing days referred to as the "Weakest Branch." Or is their an alternative to Article V: the Executive and/or the Congress challenge at least judicial supremacy.

When I posted my comment, I became aware of Brett's critique of Sandy'a post, especially Sandy's reference to Justice Holmes. Let's take a peek at Article VI, Clause 2 of the Constitution:

"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

This clearly provides for supremacy of the Constitution, etc, over the states. But this clause DOES NOT provide for judicial supremacy over the Executive and Congress. That's why Sandy capitalized FEDERAL in his post.

So perhaps Brett might take the time to read the article I referenced in my earlier comment for learned background on both judicial review and judicial supremacy.

Sandy isn't echoing Obama. Rather, he's making the point that judicial review may need a long review, to perhaps avoid the unelected judiciary from becoming the "Strongest Branch" and what it might do to the roots of the Constitution . Maybe some pruning is necessary.

Or perhaps Brett can convince us that the framers/ratifiers indeed were all for judicial review and judicial supremacy.

JMO: First, even the threat of judicial review makes Congress think twice about what they are legislating.

Now, would we say we didn't like judicial review of federal law if for example Congress passed (with a large majority) and the president signed a law repealing (any of) the first ten amendments? How about japanese internment during WWII (Korematsu v. United States, Ex parte Endo). Although this was done through executive order, in the war hysteria its fair to think that Congress would have gone along.

judicial review of federal statutes is a legitimate check, but also needs to have reasonable bounds. Decisions need to be properly reasoned and outlined or the precedent will not stand the test of time. Some of the more controversial SCOTUS rulings have been 6-3 or more so I don't think a rule that says it has to be 6-3, 7-2 or better really helps either.

Although in no way an exhaustive list, I would think that the partial-birth abortion statute, the Military Commission Act, portions of FISA, DOMA, etc. would all serve as examples of why progressives would want judicial review of federal statutes. As we learned during the Bush presidency, it is possible for Republicans to hold the keys to the White House and Congress at the same time, and, it seems to me, essential that the Supreme Court serve as a final backstop to a tyranny of the majority.


Do you believe in constitutionally limited government contolling both the scope of government power and reserving an area of individual liberty?

If so, who will enforce those limits apart from the injured citizenry bringing suit before a neutral court?

Do you expect the Congress and President to respect the limits on their power. They have yet to do so.

So lets start with the premise that Obamacare is unpopular. Now I know Joe disagrees with that premise so lets accept all the caveats- some parts of it are popular, some people don’t like it because it doesn’t go far enough, some people don’t like it because they don’t understand it or have been brainwashed, etc etc. But if we take the universe of legislation that is able to pass Congress, this legislation is well down the unpopular side of the scale. And if you can’t bring yourself to admit that, just accept it for the purposes of this argument.

Now lets say the Court upholds the law and that the controlling opinion basically says- look, we are very skeptical that the Constitution gives Congress this power, but we think that this is the sort of question that should be decided by the political branches, not unelected judges. Enforcing the Constitution is not just the job of the judiciary, and other constitutional actors, including Congress, the President and the states have both the duty and the right to police constitutional boundaries.

We all know that such an opinion would be interpreted by the administration and its supporters as a declaration that the law is constitutional, and that they would use it at every turn to attack anyone who continued to question the constitutionality of the law on the grounds that the constitutional issue had been “settled” by the Court.

Now lets say that Republicans campaign on stopping Obamacare and are successful in winning the presidency and narrowly controlling the Congress. But they cannot repeal the law because the Democrats can filibuster in the Senate. Professor Levinson says that the Republicans should then repeal the filibuster, which is a result that he would love, but would be widely (and properly) denounced as a power grab. Moreover, if the Republicans did that they could then go ahead and pass their own legislation (say privatizing Medicare) which (again for purposes of argument) we will assume to be just as unpopular as Obamacare and not the reason why they were elected to begin with.

None of these options sound very good as a matter of constitutional and democratic legitimacy. But what about another option, suggested by Judge Kavanaugh in his concurring opinion, which is that the new president could refuse to enforce Obamacare on the grounds that it is unconstitutional? It seems to me that this might be the best of a lot of bad options under the circumstances. Otherwise, we would be essentially saying that there is no feasible way for the people to repeal a law that they hate (again, by hypothesis), except by opening themselves up to a bunch of other laws that they might hate as much.

But what about another option, suggested by Judge Kavanaugh in his concurring opinion, which is that the new president could refuse to enforce Obamacare on the grounds that it is unconstitutional?

Interesting to hear one conservative judge suggest that a president could ignore a law based on his/her view of its constitutionality and another (yesterday) slam Obama for daring to have an opinion on the constitutionality of Obamacare.

A better solution for the problem would be to have the Court more accurately track the views of the electorate. Having a Court act as a super-legislature (which may simply be inevitable) is completely inconsistent with life tenure. 15-year terms for federal judges (and the abolition of the filibuster, which obviously the Founders never envisioned) would go a long way towards having a judiciary that was better aligned with the views of the country as a whole on important issues.

I'm not sure why it is not important to protect minorities or rights when the federal government is involved & repeatedly, including in little known lower court opinions, this has been done by judicial review. For instance, even in the heat of the Red Scare, the SC tempered its reach. For those helped, I reckon this is somewhat important.

Per the first comment, we have substantive due process now, e.g., the right of privacy. The problem in the past was a somewhat misapplication of the rules.

Brett, it's easier not for your usual cynical reason but because Congress is an equal branch of government and the nation at large is represented and various different interest groups from the nation at large are represented. The federal officers holders are still obligated to follow the law either way. Since most acts are not reviewed anyway, judicial review can't be the only check there.

I don't know why the first part of mls' comments has to be tossed in at all. The second part is something cited back to the 1790s: mere doubt isn't enough. This might be politically used. So? If they didn't use such restraint (rightly or wrongly), Obama would politically do what he did with CU or Republicans do with Roe.

Next, mls says if the Republicans try to end the filibuster it would be deemed a "power grab." Uh huh. For some time, there has been a push to reform the filibuster, a minor attempt offered by Democrats but rejected. Like the PPACA itself, if the Republicans actually joined with the movement, a bipartisan approach is possible there. Anyway, it's all something of a joke, since if President Romney was in power, some form of the PPACA, a free market approach, very well could have passed. It's hard to take seriously.

As to overturning laws they hate, the PPACA requires various funding measures to work long term. Also, if people truly "hate" it (sorry, they do not), they can vote a President (since Brett et. al. think the 2010 election was all about it after all) who wants a new law. Toss that with Republicans and your usual compromising Blue Dogs types, eventually the law will be replaced or so watered down to be in effect the same thing.

Oh, and this business of Dems filibustering. Yeah sure. Right. If the House was controlled by Rs and the Senate had a R majority and the President was R., Dems would filibuster a repeal. I'll believe it when I see it.

Our yodeler asks Sandy:

"If so, who will enforce those limits apart from the injured citizenry bringing suit before a neutral court?

"Do you expect the Congress and President to respect the limits on their power. [?] They have yet to do so."

As to the first question, is "a neutral court" what we always get with the Supreme Court based upon historical results of its decisions? Or is this concept subjective, like ugliness in the eye of the beholder?

As to the second question [?], there are elections to address such limits, whereas unelected Justices can continue to serve over many elections. I think this is Sandy's concern with this post. But addressing this concern would seem to involve Article V, which can be problematic for many reasons discussed many times with Sandy's posts and commentary from the usual suspects.

Moving past loaded hypos, the law as a whole has popular stuff in it, but among the various means to pay, there is a provision that many don't like.

Many don't like various things that are necessary (especially if the more logical alternatives, like universal health care, are blocked). Republican government is in part in place because representatives are more able to compromise in ways that short sighted and often uninformed (e.g., I am not aware of the nuances of military funding policy) public cannot.

Since supporters of the basic goals of the PPACA are not so tied to a particular means, other means, particularly over time and elections, can be found. Thus, affirmative action's goals can be done in various ways, even if a specific means is tossed out.

This whole process often is messy. "Federalists in Dissent" for instance is a book that discusses the nastiness of Federalists and Republicans fighting it out. The current filibuster corrupts the process some. The public isn't very informed about it either. It will continue in its current form until some tipping point moment.

I can quite easily imagine, just for the sake of it, a situation where Dems accept the ending of the current hard filibuster (to replace it, e.g., with a delaying mechanism much less drastic) if they got something in return.

And, reform there should not be tied to any one piece of legislation. It can be in mind, of course, one or the other side in the future perhaps using it for something. Of course, mls in the past was less accepting than me or Mark Field and others on certain practical ways to reform the process. So it goes.

Shag, if the Constitution is the "supreme law of the land" and the judiciary has the power to interpret the law, it seems logical that it has the power of judicial review. Their rulings would apply to certain litigants, but the rules would apply to like litigants.

Also, many have shown, judicial review was well recognized as part of "republican government," and met the test of time. Ultimately, its legitimacy stands because the people, grumbling some, accept it.

As Hamilton noted, there are various checks and judges in practice can't be "supreme," even if they want to. Did Engel v. Vitale stop what was deemed illicit state authorized prayer, after all? Did Boudemine v. Bush solve all?

Joe's closing "So it goes" reminds me that I should reread one of my favorite authors Kurt Vonnegut.

"First of all, I certainly do not expect President Obama to attack the legitimacy of judicial review,"

Obama generally wears a belt, AND suspenders. So what was the intent of the speech, if not to broach that subject; A feeler, as it were.

It certainly is subject to challenge, despite the commenter above who cited FISA and other matters, which REMAIN despite the so-called validity of JR.

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BD: "If so, who will enforce those limits apart from the injured citizenry bringing suit before a neutral court?

As to the first question, is "a neutral court" what we always get with the Supreme Court based upon historical results of its decisions? Or is this concept subjective, like ugliness in the eye of the beholder?

When courts follow the written word of contracts, regulations, statutes and constitutions, their opinions are as uniform as human beings can render. The trick is restricting judges - especially but not solely progressive judges - to apply the law as written.

BD: "Do you expect the Congress and President to respect the limits on their power. [?] They have yet to do so."

Shag: As to the second question [?], there are elections to address such limits, whereas unelected Justices can continue to serve over many elections. I think this is Sandy's concern with this post. But addressing this concern would seem to involve Article V, which can be problematic for many reasons discussed many times with Sandy's posts and commentary from the usual suspects.

1) Progressives here repeatedly state that elected representatives have no duty to enact the will of the voters and progressive politicians routinely campaign as moderate conservatives and then rule from the left to expand government. Thus, what use are elections? The entire project of constitutionally limited government is meant to protect individual liberty when elections fail to do so.

2) If you or Sandy shares my concern about judges departing from the written law without any checks, then perhaps you will agree with my suggested amendments limiting judicial review to original meaning, providing a congressional "veto" over Supreme Court decisions departing from the Constitution and lowering the threshold to amend the Constitution to a 3/5ths majority.

Thus, what use are elections?

I know! If you can't vote to deny people rights, what good is voting? Ain't no activist judges gonna stop me from putting my prejudices into the code. What we need here is some damn judicial RESTRAINT son.

It is so fun to hear the right wing rally behind judicial review. Somebody should warn the judges: don't count on this support to last. Soon as you make a decision they don't like, all that principled talk will evaporate.


We libertarians and conservatives have not backed off an iota of our critiques of the abuses of judicial review.

The purpose of judicial review is the ENFORCE the Constitution's limits on government power and guarantees of individual liberty. This is a fulfillment of the Declaration of Independence's vision of the proper role of government.

It is an abuse of judicial review for a court to erase the Constitution's limits on government power and guarantees of individual liberty in order to enact the policy preferences of the ruling court in an effective common law.

This is about as good an argument as you're going to get that right-wing hypocrisy on this issue somehow isn't.

The problem with it, of course, is the problem so common with all arguments by definition: the inconvenient real world.

In the real world, right-wing bashing of judicial review and calls for "judicial restraint" are hardly limited to the nice, neat, definitions you mention.

And "an abuse of judicial review" is a tasty morsel! So now it appears there is good judicial review and bad judicial review. More definitional games; I'll hazard a guess that the good turns out in reality to be what you like, the individual liberties turn out to be those you approve of, etc. etc.

But do go on believing it. Reality has never slowed you down before.


An issue than isn't? Are you kidding me?

To cite just a few of the more egregious examples, the federal court have rewritten:

1) The Commerce Clause from a simple and easily understood power to regulate (which means discipline or limit) the commerce between states into a license to enact whatever Congress pleases if it theoretically can affect interstate commerce. Now, progressives want to erase the necessity of commerce from the clause.

2) The Establishment Clause from a simple and easily understood limit on Congress to keep it from creating a state religion to a license to limit the exercise of of speech concerning religion in the public sphere.

2) The Second Amendment (until Heller) from a guarantee of the right of the people to keep and bear arms to a right of the states to arm militias.

3) The Takings Clause from a simple and easily understood limit on the government takings to those used for public purposes to a means to raise tax revenues.

You can go on and on.

"the indefensibly apportioned Senate"

Is quite defensible.

Yes, yes, I get it: the New Deal was a big mistake, we should all go back to 1935 or so, before those pesky civil rights and safety nets.

However do please leave off pretending this is all about Constitutional purity.

2) The Establishment Clause from a simple and easily understood limit on Congress to keep it from creating a state religion to a license to limit the exercise of of speech concerning religion in the public sphere.

WTF are you talking about?

Probably just more right wingnut victimology talking points. How much time you got? How much stomach?

Joe, I can accept judicial review even though it is not specified as a judicial power in Article III and even though the Supremacy Clause in Article VI is not directly tied into Article III, considering the Constitution's oath required not only of the Justices but also of the Executive and Congress to uphold the Constitution. My ConLaw Prof. Thomas Reed Powell's "Vagaries and Varieties in Constitutional Interpretation" begins with "I. Establishment of Judicial Review" tracing judicial review, stating that "Like Topsy, it just 'growed.'" Much has been written over the years on judicial review, including many challenges. But I can't imagine how the judiciary would otherwise function.

Extending the unspecified judicial review power to an unspecified judicial supremacy power over the Executive and Congress is, however, a leap, especially since Article III lacks a "necessary and proper" clause. I'm not sure if you agree with this from the last paragraph of your comment. Perhaps there is such a thing as constitutional estoppel or laches such that neither the Executive nor Congress may challenge judicial supremacy as a power over them.

I am not quite sure what "judicial supremacy" means but it doesn't quite seem to be the case in practice. The books of Gerald M. can be appealed here.

But, anyways, given what is at stake, it's worth it:

judicial review is appropriate to enforce the supremacy clause against state laws contrary to federal laws, to decide conflicts between the other federal government branches, to decide conflicts between the federal and state governments in situations where the federal government clearly invades state sovereignty and to protect the fundamental rights of discrete and insular minorities against federal and state governments. However judicial review is inappropriate when fundamental individual rights are not being unreasonably burden, when non- fundamental rights are at issue or when the rights at issue are possessed by the public at large( ie., affect the majority). In all cases, judicial review should be consistent, rational, exercised with restraint and with respect for precedent and the consequences of it's decisions. To enforce these conditions, Congress needs to use its impeachment powers more than once every 200 years. The Congress needs the equivalence of the GAO to monitor Supreme Court decisions to decide whether decisions are activist or not. If a judges decision seem to violate the above conditions on a regular basis, it should move for impeachment of that judge.

I've been contemplating what Joe said:

"I am not quite sure what 'judicial supremacy' means but it doesn't quite seem to be the case in practice. The books of Gerald M. can be appealed here."

finding it difficult to comment on it.

But I just finished reading Nelson Lund's "Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court's Errors," available at SSRN:

This paper is very readable and its 25 pages can be read very quickly due to a lot of white space and large typeface. Its focus is on the Supremacy Clause of the Constitution and its relation, if any, to stare decisis, considering the views of Jonathan F. Mitchell expressed in "Stare Decisis and Constitutional Text" cited at footnote 8.

Prof. Lund notes, at pages 19-20, that "The Constitution, federal statutes, and treaties are all specifically made the 'supreme Law of the Land,' and the constitutional text does not so much as suggest that any judicial opinions can possibly have that status."

Perhaps I am taking this out of context, but he states at page 21:

"The most obvious pathologies of the Supreme Court arise from an awareness among the Justices that everyone who counts will almost always treat their pronouncements as if they were the law of the land. This leads to arrogance and intellectual laziness, both of which are amply displayed in many Supreme Court opinions written by Justices of all jurisprudential and ideological persuasions."

Maybe I am also taking this out of context, but here's what Prof. Lund includes in his Conclusion at page 24:

"Mitchell is right, however, to emphasize that the Supremacy Clause implicitly rejects the notion that Supreme Court opinions can be the supreme law of the land."

As I read Prof. Lund's paper, a one-person Abbott and Costello "Who's on First" routine came to mind. I do not say this disrespectfully, as Prof. Lund focuses like a laser on the actual text of the Supremacy Clause. The question I have is whether his view of Supreme Court opinions applies to ALL such opinions or just the ones originalists don't agree with?

I'm off for a long lunch (after a shower, of course) that will feature a couple of "Dark and Stormies" with liberal (mostly) friends, hoping that upon my return mid-afternoon some light will have shined on my question.

I found this article interesting. The author wrote an interesting article on the 9A decades earlier that was excerpted in a book by Randy Barnett on the subject, which is where I found about him.

We can work from the text, but bottom line no one means of interpretation is going to get us where we are today. Judicial review has been accepted as legitimate about as much as the large amount of foreign policy discretion of Presidents, even though the Constitution does not literally provide it.

Cooper v. Aaron might be the high point of the SC's assurance on this point but putting aside many "political questions" (the book Odd Clauses is mainly about questions the courts mainly don't handle, e.g.), the Supreme Court's supremacy in practice is limited. A President can veto "constitutional" laws etc.

Ultimately, "the law" might be in the ether out there, but over time, the courts were accepted as having major power to interpret what it means, and Marshall wasn't the first one to assert such power. This power should be used carefully and realism on the limits of judicial power (F78) is often a major concern.

Hope you had a nice lunch.

Am I seriously supposed to believe that this sudden hostility to the very concept of judicial review is going to last more than 23 microseconds beyond the Republicans retaking the Senate and the White house? Let alone the passage of a federal law which, let us say, bans late term abortions?

This is a joke, and nothing more.

Lunch was great, joe. I have download the article you provided a link for and will read it later today or tomorrow. Thanks.

I accept that one cannot isolate Article III from Article VI and that the entire Constitution has to be taken into consideration in understanding its parts Originalism does not seem to address the manner in which this is to be accomplished in interpreting a provision in the Constitution. Perhaps construction as opposed to merely interpretation is called for, including some theory other than originalism.

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"sudden hostility to the very concept of judicial review"

Prof. Levinson's views have been around for years. He also doesn't only want to revamp the Senate when Republicans have significant power. Few around here are hostile to the very idea of judicial review. Misinterpretation, including by a few petty judges, aside, Obama included.

Here is a sensible take from a former colleague of mine

Brett may not be aware of it, but " ... this sudden hostility to the very concept of judicial review ... " is not so sudden. I personally do not see a viable alternative to judicial review that is unspecified in Article III or elsewhere in the Constitution. But many constitutional scholars, past and present, have challenged the wisdom of judicial review. I'll check my piles from SSRN downloads and do some Googling for a list of books/article challenging the concept of judicial review. Others are welcome to identify such books/articles to inform Brett that the hostility is not sudden.

I seem to recall that our yodeler from time to time has been critical of judicial review. But he's an economist, not a constitutional scholar.

Here's an article that pre-dates Obama's presidency:

Jeremy Waldron's "The Core of the Case Against Judicial Review," 115 The Yale Law Journal 1346 (2006).

[Note: Don't expect the Shag from Brookline version of the Chinese Water Torture for the rest of the evening, as sleep calls.]

Per mls' story

"his law unconstitutional"

Did Congress give it to him?

"Obama is wrong in asserting that the mandate is necessary to ensure that people with preexisting care get coverage."

Alternatives provided that did not have the votes to pass. Since he was once against the means used, yes, he realizes in unicorn land that there are alternatives.

"Necessary" doesn't mean there are no other means. See, e.g., McCulloch v. Maryland. We survived w/o a Bank of the U.S.

As to his remarks, a small portion is excerpted. The link (Huffington Post had a video) shows he earlier noted:

"With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional."

Obama also noted the law was "a duly constituted" law. I don't know what that means, but it sorta sounds like a law that strips free speech rights might be different.

"it is hard to see what effective limits the Constitution puts on the Commerce Clause"

It is not hard to see such limits if this law is upheld. There are many "effective" limits. Many were cited. How many do we want?

The author also cites Wickard as somewhat "Orwellian" and suggests Lochner would seem rightly decided since many work more than 60 hours a week (many are not bakery workers who do, however).

Later, the op-ed suggests Obama is being "partisan" because he is challenging the constitutionality of DOMA. How exactly, looking at his whole remarks? He did not merely, unless we selectively single out one part of his remarks, say all majoritarian legislation cannot be struck down by judicial review.

Like PPACA, his actions here seem to match "precedent" (Lawrence v. Texas etc.) There is a "human element" in protecting rights here. And, Obama clarified that he was treating economic regulations differently. The SC has done this too. Since this DOMA is not really an "economic" issue, don't see it.

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I recall several writings of Mark Tushnet anti-Judicial review, so I "Googled" "Mark Tushnet on Judicial Review" resulting in a number of hits, too long to list here. Maybe Brett with his engineering skills can replicate this and actually check out some of Mark's writings.

TPM features "A History of Republicans Slamming Judges":

What's sauce for the goose is sauce for the gander.

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The mls article has this tidbit:

"There are at least two other ways; a single payer system in which everyone is covered by the same government plan and a program of individual subsidies that ensure give each individual the purchasing power to buy coverage on their own."

The single payer system is unlikely to pass any time soon and if it did, it would "mandate" everyone to have a SINGLE insurance plan or (more likely) provide tax breaks to those with alternative plans ala those who send their kids to private schools. I'm not quite sure why this is more benign constitutionally for those upset about the PPACA.

The second part is already in the place in some form for certain individuals. Again, how is that likely to be functionally different? The subsidy would surely come with strings tied to using insurance or something. There still would be a stick; it would be a form of a "mandate," so again we would have a semantics game like we have with the whole "tax" v. "penalty" thing.

Again, we can imagine all we want, but we are dealing with reality here. And, the likely alternatives would would not please most critics of the constitutionality here & if it did, it would underline the flimsy line drawn.

Thanks to Joe for leading me to Eugene M. Van Loan III's "Judicial Review and Its Limits;; Part I (Legitimacy)" and actually making me read it. This article was published in the Fall 2006 issue of the NH Bar Journal. It is not the easiest of reads, especially because of the small typeface, even though the basic text runs only 12 pages, with 16 pages of extensive endnotes than cannot - should not - be ignored. Mr. Loan creates many doubts, as he compares judicial review under both the U.S. and NH Constitutions.

He makes reference to the term "judicial sovereignty" which apparently is beyond "judicial supremacy." In closing he state:

"I hope to expand upon these points in a future paper. That paper will discuss those things which have converted judicial review into judicial sovereignty, i.e., its claim to finality, supremacy, exclusivity, universality and self-enforceability. For now, however, it is enough to say that if one truly believes in limited government, one cannot accept the existence of a Judiciary which claims to recognize no limits. As Thomas Jefferson said, 'The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.'"

Perhaps with the ACA appeals we'll get more [see Bush v. Gore, 2000 and Citizens United, 2010) constitutional Play-Doh from SCOTUS's 5-4 majority.

And that might bring Mr. Loan to grace us with Part II, as a Google search fails to disclose that it has been published.

By the Bybee [expletives deleted], Mr. Loan makes several references to Mark Tushnet's dissenting views on judicial review, as well as dissents of others. So critiques of judicial review are not as "sudden" as Brett claimed.

While I was a passive doubter of judicial review, Mr. Loan has activated my doubts. Are we on the road to "judicial sovereignty" with unelected Justices? [Was Obama wrong to remind us of unelected Justices?]

I thank Joe for providing the link to Mr. Loan's article. But I especially thank Sandy for not letting go of concerns with judicial review and pushing the need for better democratization of the Constitution.

I don't see how the supermajority laws can be squared with the idea of a court. We all know that judges differ from each other, the point is that when they are judging, they are acting collectively as a court, not as individual judges. This is why arguments for law enforcement officer immunity based on the idea (expressed even by CJ Roberts) that if multiple judges can't agree on the law, officers should not be expected to know it, should fail. Once a court has rendered an opinion, it is the obligation of officers to follow it in good faith until overruled.

I think this can most clearly be seen in large federal courts of appeal, such as the 9th Circuit. That court has decisional law about the precedential value of panel opinions and internal rules determining which panel gets to rule on an issue presented to several panels. The judges clearly struggle to stay within these bounds for the good of the court (and to retain civil relationships among the judges). At the Supreme Court, the various rules of 4s and 5s play similar roles.

To me, the supermajority laws operate in the wrong dimension. What is supposed to restrain the courts in declaring laws unconstitutional are the doctrines of constitutional avoidance, of justiciability, of abstention, of severability, and of limitations of remedies. The one thing you don't want to have is a court shackled from hearing, deciding and granting relief in cases of constitutional violation. This is the great problem with AEDPA, instead of focusing on constitutional claims, courts are focussed on to whom they owe deference, kowtowing to each other like the court of the Mikado.

The weakening of abstention doctrines such as political question during the Warren court (countered by the growth of justiciability barriers in the Burger years and immunity in the Rehnquist years) represented a judgment that too many constitutional violations were going unremedied. Their previous strengthening, under the influence of Frankfurter, came in response to the perceived overuse of the judicial review power during the Taft and Hughes Courts.

This is not to disagree with Sandy's view that judicial review has supplanted the amendment process as the way in which the Constitution is adapted to the times and that therefore judges should be term-limited. It is only to say that judicial review is performed by courts, not judges, and is a necessary part of the preservation of liberty in our polity.

I read Van Loan’s article, which I think is helpful in identifying the source of the problem. Although the Constitution does not expressly grant the power of judicial review, there is pretty strong evidence that the Framers expected that the courts would exercise it in some cases. It seems doubtful that the Framers expected that it would have the broad scope that it has today. But it is difficult to identify a clear line over which the courts have crossed. Instead, the expansion of judicial review is the result of many factors, including (1) the farther one gets from the original enactment of a constitutional provision, the more its application tends to depend on judicial explications which are only vaguely, if at all, related to the text and original meaning, (2) the related difficulty in distinguishing between “clear” violations of the Constitution and those which are only arguable based on a (sometimes) plausible reading of emanations and penumbra; (3) the loosening of standing, justiciability, political question and other doctrines which helped keep judicial review limited to more traditional legal disputes; and (4) the wide acceptance of judicial supremacy, including by Congress, which leads to passing laws with the expectation that the courts will tell Congress if it is constitutional or not.

The post-New Deal legal consensus deals with this problem by essentially creating a bifurcated system of judicial review. For issues related to insular minorities and fundamental rights, the courts exercise vigorous judicial review. For other issues, particularly related to economic legislation and whether Congress is exceeding its enumerated powers, courts exercise very lax oversight, largely deferring to congressional judgments as to the scope of its own authority.

As Van Loan points out, however, this system is itself invented out of whole cloth. So while one may think it to be a wise and beneficial way of balancing the roles of the judicial and legislative branches, it is hard to make into a coherent argument that judges can only legitimately exercise judicial review in certain cases. Essentially Obama is saying that “unelected judges” should strike down certain types of laws passed by “strong majorities” (eg, DOMA) while deferring with respect to other types of laws (eg, the individual mandate) because this is what earlier unelected judges said they should do.

Needless to say, everybody is inclined to praise judicial independence and the rule of law when it leads to results they like, while denouncing judicial activism when it leads to results they dislike. Unfortunately, this is not a very objective standard.

I appreciate that two people here read the article and apologize for the font size etc. If accessible, it is on Lexis-Nexis which allows you to download there articles in .pdf format, which might allow for easier viewing.

this system is itself invented out of whole cloth

From the start, concern for "partial" laws or "private rights" (F78) or specific fundamental rights (Madison's speech on BOR) were highlighted in judicial review. The "system" is debatable but its premises were not "invented out of whole cloth."

it is hard to make into a coherent argument that judges can only legitimately exercise judicial review in certain cases

First, "coherent arguments" have been made by many, e.g., Professor John Hart Ely Jr. on down; second, it is not "certain cases," but a matter of level of judicial scrutiny.

Essentially Obama is saying that “unelected judges” should strike down certain types of laws passed by “strong majorities” because this is what earlier unelected judges said they should do

No, he is voicing a general viewpoint that national economic legislation should be put to a different test -- and not a complete bar at that -- than purely "private rights" or "partial" legislation that reflect a germ of an idea in place from the founding and was argued in various "coherent" ways since then.

it leads to results they like, while denouncing judicial activism when it leads to results they dislike

This is a tiresome simplistic trope. The President is setting forth a general constitutional principle that will repeatedly be applied in cases where the courts will on the merits rules in a way he doesn't like (e.g., some more debatable case involving a minority or fundamental right).

ANY argument for how courts should work can be similarly dismissed because it will result in them doing 'x' (non-activism) when one "likes" (that is, thinks it correct pursuant to a certain interpretative vision) it etc.

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"This is a tiresome simplistic trope. The President is setting forth a general constitutional principle that will repeatedly be applied in cases where the courts will on the merits rules in a way he doesn't like (e.g., some more debatable case involving a minority or fundamental right)."

Well, that’s my favorite kind of trope. But I think you are missing my point. It is true that I am skeptical that Obama has a sincere belief in a particular theory of judicial review, apart from ensuring outcomes that he prefers. In this connection I note that he was no more respectful of the Supreme Court’s decision in Citizens United, which did involve a fundamental right. However, that isn’t really the issue. The real question is why the President’s theory of judicial review matters any more than his opinion as to any other legal issue before the courts.

Of course, the President is entitled to his opinion, as is anybody else, but unless he is arguing that it is illegitimate for the Court to exercise the power of judicial review in this case, he is merely asserting that he has an interpretation of the Court’s precedents and that if the Court doesn’t agree with his interpretation, he will disagree with it. But since it is the Court’s function, not his, to interpret and apply its precedents, this is a pretty meaningless observation on his part.

When Obama says the Court has to defer to laws passed by “strong majorities” and suggests it would be “judicial activism” if it fails to do so, he appears to be doing something other than merely stating that he has a view of how this particular case should be decided. He is suggesting that the Court would be acting illegitimately if it decided based on its own view of the constitutionality of the legislation, rather than that of the political branches. And he is suggesting that this illegitimacy stems from something more than his own personal opinion about how judicial precedents should be interpreted and applied.

Of course, Obama is trying to have it both ways. When pressed, he will say that he accepts judicial review, and it merely expressing his opinion on how judicial review should be applied in this particular case. But the dog whistle to the public, or at least to his base, is that the Court is abusing its power if it decides adversely to him.

There is much more that can be said about this subject, and I am sure there will be. Check out Rappaport and Ramsey debating the meaning of “judicial activism” at the Originalism Blog.

Happy Easter.

It seems that mls in attacking Pres. Obama on judicial review is espousing "judicial sovereignty" that Mr. Van Loan defined in his article:

" ... its claim to finality, supremacy, exclusivity, universality and self-enforceability. "

If their are doubts about judicial review, there should be more grave doubts of judicial sovereignty.

As to mls' description of Citizens United (5-4) as involving a "fundamental right," that was the 5's dog whistle to their base (as was their Bush v. Gore).

mls' reference to the Originalism Blog on "judicial activism" raises the application of originalism's theory on interpreting the Constitution with respect to a term that is not specified in either Article III or any other part of the Constitution as amended to date. Like much of originalism theory, judicial activism remains subjective, e.g., it depends upon whose Bush is being Gore-d, or vice versa.

Shag- I don't think the statement that Citizens United involves fundamental rights is controversial. I think the dissent acknowledges this.

I am not endorsing judicial sovereignty (or supremacy), but I don't think that is what Obama is objecting to. He wants the courts to finally settle the constitutional question (that's why the SG failed to object to the court's jurisdiction to hear the case now, even though it seems to me that these objections are quite strong). He just wants them to settle the question in his favor. Nor does he want any other constitutional actors (eg the states or the new Congress) to have any ability to raise constitutional objections.

It seems to me that there is a very strong argument here for a Alexander Bickel/Morality of Consent type abstention on the part of the judiciary. But that is not what Obama is asking for.

I wasn't aware you had a single "point" and don't know what I "missed." I pointed out a few things I thought you got wrong. I particularly think that you fail to show how the President does not "sincerely" have a judicial philosophy here but for outcomes. Opposition to a certain rulings doesn't change that. A person can have sincere beliefs here and think the courts get certain subjects wrong w/o merely being concerned with outcomes. Here I'm answering something you it is "true" you are skeptical about.

Moving past specific things I commented on, you say the "real question" is why his opinion matters here. The executive is a major player in the courts, the solicitor general's opinion on when the USSC should take a case a major factor in its judgment. So, I find it hard to understand why his/her position on judicial review is not important. It is a major issue in politics after all -- Republicans make "judicial activism" a major issue. So, how it the heck is it "pretty meaningless" for Obama to have a position? Yes, sorry, I miss your point.

Obama has been discussing his opinon on the role of the courts long before he was President and there was a radio interview where he discussed his belief that liberals should rely less on the courts. This doesn't mean that there is no role for judicial review. You keep on saying "strong majorities" w/o context. It's misleading. There is more to his position than that. I'm not sure if you think Presidents should just not say a word on how courts should run. As I noted, Hamilton and Madison thought courts particularly had certain roles, including over judicial review. This to use loaded words would be their "legitimate" role. I don't know why Presidents as much as members of Congress, who are also of another branch, cannot talk about this central matter of civics and republican government. Each have a major role to play.

He never said the judicial review was a problem. He put forth a certain vision of it, that you don't find sincere for some reason. I don't think you made the case there and said things that I pointed out weren't true. Regardless if I missed some mega-point you were making.

Such is the usual tiresome nature of "judicial activism" disputes.


While a fundamental right was recognized by both the majority and the minority in Citizens United, many are of the view that the majority's decision was a fundamental misunderstanding of the Constitution in assessing the fundamental right.

If mls is suggesting that Obama might have asked for what mls calls:

" ... a very strong argument here for a Alexander Bickel/Morality of Consent type abstention on the part of the judiciary."

Imagine how the Obama haters would have reacted. I would venture that even mls would jump all over such as weakness on a claim that ACA is constitutional.

Writings on judicial review use Marbury v. Madison (1803) as foundational, although earlier Supreme Court decisions (as well as other courts) had considered and applied the concept of judicial review.

Marbury was nagging at me and finally this morning I recalled that an issue of Constitutional Commentary had addressed Marbury. I located Vol. 20, No. 2, Summer 2003, devoted to:

"Marbury at 200: A Bicentennial Celebration of Marbury v. Madison."

I don't recall if I read through the entire issue but I had read Sandy and Jack's "What Are the Facts of Marbury v. Madison?" which I am rereading. Sandy and Jack go well beyond the "simple" facts set forth in the reported decision as they identify the many political background facts that would not be available to a reader of the decision only.

Footnote 22, at page 264, points to the actual/potential conflict faced by Justice Marshall who had as Secretary of State " ... personally affixed the Great Seal of the United States to Marbury's commission. Of course, this simply raises even more urgently the question why Marshall was not compelled to recuse himself in the case. His failure to do so speaks volumes about what we might mean by the 'independent judiciary' that Marbury v. Madison is supposed to symbolize. Indeed, the more we learn of the facts of Marbury, the more we are likely to conclude that Marbury symbolizes precisely the opposite phenomenon."

Perhaps out of courtesy for the current Court, Sandy and Jack did not provide a cite to Bush v. Gore to support their last sentence of this footnote.

This issue of CC is atop my reading pile, as the titles and authors of other articles suggest many concerns with Marbury and perhaps its foundation for judicial review.

I wonder if Sandy and Jack might reflect upon their footnote 22 in light of events subsequent to the publication of this issue of CC.

Sandy and Jack's article on Marbury does indeed reference Bush v. Gore subsequent to footnote 22. I'm not quite finished rereading the article, but it is a great read in considering the ACA appeals before the Court currently, including on Bickel's "embrace of the passive virtues."

He wants the courts to finally settle the constitutional question

Pragmatically, it is useful for the matter not to be in doubt for years and there are arguments on both sides as to timing. The Administration early on argued the other way but lost.

He just wants them to settle the question in his favor.

Shocker that.

Nor does he want any other constitutional actors (eg the states or the new Congress) to have any ability to raise constitutional objections.

I am not aware of this. He doesn't think the claims have merit. He has not say they have no "ability" to "raise" them.

mls is suspicious about the good faith of the President's statements but perhaps if he sticks to what actually was said, he would be less so.

I don't know exactly what constitutional objections the new Congress is not supposedly being allowed to raise under the President's supposed position. I do know he invited Congress to defend DOMA, in part to protect its ability to pass such legislation.

A new Congress can overturn this law or some subset for whatever reason, including some independent judgment ala Andrew Jackson on the bank of constitutional avoidance. They would have the power to do that.

I am not aware of the President denying the states has any standing to make claims here. Some attempts, such as VA's act of nullification, are rejected, including in a law review by a former Scalia clerk.

But, to the extend state Medicaid funding is involved, e.g., there would be some standing for them to make a claim. Many of the claims here aren't state based anyway, but concerns individuals and companies. To the degree the states are not the appropriate parties, the gov't would challenge it. There too.

Nothing unique there.

After completing rereading Sandy and Jack's Marbury article, I wonder how they might address the "facts" appropriate for the ACA appeals. I have not read the briefs of the parties setting forth the "facts" (nor have I read any of the 100+ amici briefs and "facts" they might reference). Perhaps Sandy and Jack have so that they, along the lines of their Marbury article, might comment on additional "facts" deemed relevant, such as the history going back to at least Teddy Roosevelt on health care reforms actual and proposed.

Their article covers Brown v. Board of Education and other major decisions lacking the full "facts." I wish that I had the benefit of this type of article as a law student, when "facts" were limited.

And their descriptions of horizontal and temporal dimensions of decisions of the Court are most illuminating. Their article was written prior to Citizens United, which should be evaluated by these dimensions, what with the experience since of SuperPacs.

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