Judging the Judiciary
Our least dangerous branch of government?
On paper, we have separation of powers.
Given human nature, each branch faces the temptation to use the legitimate power it has to gain illegitimate power at the expense of the other two branches. We have this perennial tug of war where one branch attempts to augment its power by taking power away from another branch, or vice versa.
Within limits, the system can survive. But ultimately, separation of powers is a honor system. It depends on each branch exercising self-restraint. If one or more branches refuse to play by the rules, then the system breaks down. It becomes unworkable.
When that happens, moreover, there may be no solution within the system. You can only have checks and balances on abuse of power if the abusive branch honors the checks and balances. Recall Andrew Jackson’s refusal to honor a Supreme Court ruling — now imagine a more thoroughgoing version of that rejection of the separation of powers.
Within our system, one function of the courts is to adjudicate between conflicting laws.
There may be conflicts between federal and state statutes, as well as conflicting federal statutes. There may also be conflicts between statutes and regulations promulgated by executive agencies.
In case of conflict, the court may have to decide which law prevails. In ruling in favor of a litigant, it must pick which law prevails.
Likewise, the Constitution is the supreme law of the land. The courts must interpret the Constitution, just like the courts must interpret state and federal statutes. So, for instance, you might have a conflict between state law and the Constitution, which would have to be resolved.
In that respect, judicial review has some validity.
This is reinforced by the fact that, in case of conflict, and assuming the federal law passes constitutional muster, federal law trumps state law. This is the doctrine of preemption, and it is based in the Constitution’s Supremacy Clause.
It makes sense why federal judges would be given the authority to strike down state laws.
But even in these instances of judicial review, judges need to act in good faith. If they abuse their authority by using a case as a pretext to strike down a state law on ideological grounds, then that delegitimates the ruling. And it becomes a question of whether a state or another branch of government should acquiesce to that ruling for the sake of stability.
Though it may not seem like it today, our brand of federalism is quite robust.
The U.S. Constitution grants the federal government with power over issues of national concern, while the state governments, generally, have jurisdiction over issues of domestic concern. While the federal government can enact laws governing the entire country, its powers are enumerated, or limited; it only has the specific powers allotted to it in the Constitution. For example, Article I, Section 8 of the Constitution grants Congress the power to levy taxes, mint money, declare war, establish post offices, and punish piracies on the high seas. Any action by the federal government must fall within one of the powers enumerated in the Constitution.
The courts are therefore needed to adjudicate the inevitable conflicts that arise from having a layered system of government.
Consider the ever-expanding executive branch as an example. Since FDR, we’ve had a proliferation of executive agencies that issue endless regulations. These are promulgated, not by elected officials, who are answerable to the voter, but by faceless, unaccountable bureaucrats.
As such, the only recourse a private business or private citizen has is to challenge such a regulation in court.
Judges, therefore, need to possess the ability to strike down regulations of executive agencies, which is a function of their check on the executive branch’s power. These regulations have the force of law, yet they lack the legitimacy of statutory law, which was the product of legislators, enacting the will of the electorate — at least in theory.
But the judiciary should also have the right to strike down acts of Congress, shouldn’t it? After all, if the Constitution is truly supreme, then anything falling afoul of it should be rejected by the branch officially charged with interpreting it.
There’s a slight problem, however, with the idea of constitutional interpretation.
To discharge its constitutional duties, each branch of government must interpret the Constitution for itself. The executive branch must construe what the Constitution has to say about the jurisdiction of the executive branch — ditto: the judicial and legislative branches.
Thomas Jefferson had an interesting theory:
My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal.
On Jefferson’s view, each branch might be at liberty to disregard how the other two branches interpret the Constitution when it concerns actions that don’t require the cooperation of the other branches.
This approach, however, is impractical.
Imagine that instead of striking down an act of Congress, the courts work this way: when ruling for or against a litigant, a judge refuses to take the contested act into account. The court would rule on the basis of the judge’s own understanding of the Constitution, or refrain from ruling at all unless the Constitution speaks to that particular issue.
At most, that would only work in cases where the court doesn’t need the cooperation of the executive for the ruling to take effect. Moreover, it would only work in cases where the Constitution specifies a legal remedy. The fact that there are a great many cases where the Constitution doesn’t is precisely why we have statutory law.
The impracticality of Jefferson’s vision suggests that the Supreme Court’s interpretation of the Constitution should, with important limits in place, function as the most weighty interpretation.
Thus far I’ve been using examples where the court has a legal frame of reference (for example: a conflict between one law and another).
Sometimes, however, the Supreme Court strikes down laws when no other preexisting law forms the standard of comparison. It isn’t picking one law over another; rather, it fabricates a right. It sometimes does this by building on a false premise, using dubious precedents to justify a lawless ruling.
Should such a ruling be accepted? No, but this generates a dilemma.
To disregard judicial rulings has a destabilizing effect. A judiciary is a highly important cog in a democratic system, but only if it has the authority to do its job. Flouting judicial rulings leads to a banana republic.
However, that must be offset by the danger of judicial despotism.
A runaway judiciary is just as threatening to a democratic republic as nullification. So there are tradeoffs. Separation of powers requires a degree of judicial independence, but if that’s abused too often it will become tyrannical.
And this hazard isn’t confined to the judiciary. Each branch of government has the potential to go rogue. So we have the same tradeoffs. When does the risk of tyranny outweigh the risk of anarchy? When does the risk of anarchy outweigh the risk of tyranny?
It’s like human shields. If the enemy puts military assets in civilian population centers, then dares you to defend yourself by bombing civilians, it has deliberately taken the most humane military options off the table. What’s left is a choice between bad and worse.
Likewise, if one branch of government flagrantly abuses its authority, there may be no good solution. The remaining options all have potentially dire downsides. There may be no political solution, no redress within the system itself, if the internal strain becomes too great.
Berny Belvedere contributed to this story.
