The Supreme Court and its power of judicial review has come under the spotlight again as the Court provides a hostile and politically driven look at Obama’s useless health insurance reform act. Transcripts of the Court deliberations are shocking for the childishness of the arguments being offered (some of which can be found here). But every time a law comes under review, it’s time for someone to complain about “judicial activism” striking down the people’s law, or “legislating from the bench”. That’s only when the courts strike down a law that they like – otherwise the courts are a valuable part of our checks and balances. However, I agree that judicial review poses a dilemma for democratic institutions. On the one hand, if a state has a constitution that is to remain inviolable, then the courts are going to have strike down democratically-established laws that violate that constitution. On the other hand, courts are not typically democratically organized, with either appointed or professional judges, and judicial review involves these judges striking down law that has been formulated by a democratic process. Either a democracy has the power to destabilize the viability of its own democratic organization, or it contains an undemocratic element. How shall we solve this dilemma?
The origins of judicial review have an eminently democratic pedigree. English courts claimed the right to review and judge the legality of the actions of the monarch and his officers. This remains the case today, as the United Kingdom lacks any law more fundamental than that of Parliament. The federal government and the states of the United States have constitutions, however, so the possibility came about that ordinary laws may conflict with constitutional law. In the post-Revolutionary United States, conflict ensued as to who would decide when law violated the federal constitution. Some states claimed that each state had the right to strike down, or “nullify,” federal law; this view is historically linked with the defense of the slave-economy of the South, notably of the political position of John C. Calhoun. The other view is the one that won out, that the federal judiciary alone would have the power to determine the constitutionality of law. This principle was established by the 1803 Marbury vs. Madison case by John Marshall’s Supreme Court. Of course, as discussed on this website, the Founders (and near-Founders) of the Constitution did not have the concerns about the lack of democracy that judicial review presents.
The solution to the dilemma of judicial review is to involve the public in the process, of course. I can imagine several options, any of which can be combined.
First, we can democratize the selection of the Supreme Court. Currently, Justices of the Supreme Court, along with all federal judges, are appointed by the President and confirmed by the Senate. Not only is this an undemocratic process, it has resulted in a politicized Supreme Court composed of partisan dunces. To introduce a democratic element to the selection of Court Justices, and to reduce the partisan nature of the selection process, we can import Germany’s method of selecting its Constitutional Court. While German federal judges are a professional corps, the members of the Federal Constitutional Court are elected by two-thirds approval of the two houses of the federal parliament sitting together. A simple majority would probably result in a significantly more partisan court, while election by the people’s representatives is democratically superior to the advancement of professional judges or appointment by the president.
Second, the legislature could have the opportunity to override the results of judicial review, much as Congress currently has the power to override a presidential veto by two-thirds of its membership. However, the ability of the legislature to override presidential actions may be hampered by the partisan division of a legislature, so might this be the case with the override of a Court decision. Technically speaking, Congress currently has the right to determine the Court’s appellate jurisdiction – that is, the sorts of appeals that can come before the Supreme Court (Article III, section 2 of the Constitution). This means that it could easily remove a law from consideration by the Court, by a simple majority. But I believe that this has only occurred once, during the presidency of Andrew Johnson.
Third, all judicial reviews could be referred to a public vote for approval or disapproval. However, the problem with such referenda is that they also have a democratic deficit. While referenda seem to turn the public at large into a great legislative assembly, that is exactly what the public is not. Essential to democracy is the act of deliberation, of citizens providing publicly admissible reasons to one another as to the aims and goals of the state. People are not in such a position in the voting booth. So, instead, or at least as a complement, we might have a National Jury called for the judicial review of statutes. A National Jury would be composed of a significant (several hundred) number of citizens chosen by lot to attend the deliberations before the Supreme Court regarding the constitutionality of a particular law. Thus it would be a representative sample of citizens placed in a deliberative context who would be determining the legitimacy of law. In a weaker version of this same principle, the opinions of the Jury might be merely advisory to the public before a referendum on the matter.
Finally, we can simply transfer the power of review to another branch altogether. The Assembly of classical Athens, in its mature democracy, submitted all proposed legislation to the “nomothetai,” a commission of citizens selected by lot, to ensure that the proposed legislation would be compatible with existing legislation, as well as ensure that all legislation was consistent. A similar tribunal of persons could be called to examine existing legislation for its compatibility with constitutional law. A more modern example would be the “constitutional councils” that exist in many nations, most notably France, in which appointees of the other branches of government review legislation for constitutional compatibility. The distinction between such a council and judicial review is that the council reviews legislation before it takes effect, rather than wait for a challenge to that law. However, we would have to democratize the composition of such a constitutional council for acceptance in a democratic republic.
The decisions of the Supreme Court regarding constitutionality often cause hyperventilation about the fall of democracy, but I remain agnostic about the harm it does to democratic institutions. The dilemma judicial review poses to democracy can be dissolved by making the process itself democratic.