How the Supreme Court Went From Judicial Review to Judicial Activism

Published November 28, 2015

Co-authored by: Nancy Thorner & Bonnie O’Neil

In “Court and Democracy” Jeffry Rosen speaks of the Supreme Court as playing a paradoxical role in American democracy.  He states: “Americans think of the Supreme Court as the least democratic branch of the federal government, designed by the framers of the U.S. Constitution to ‘protect vulnerable minorities’ against the tyranny of the majority.” 

Why so?  Might it be because nearly all of the most controversial issues in American politics end up before the Supreme Court and before justices who are appointed for life, with the intent that issues might be decided by our laws, and especially our Constitution, rather than the popular viewpoint of the day?  Thus, the Court’s greatest power was initially perceived as that of judicial review: the power to strike down laws passed by federal and state legislatures, if they violate the basic principles written in the Constitution.

Court originally weaker than Congress or president

When our Republic was in its infant stage, the Court was much weaker than Congress or the president.  Meeting in the basement of the Capitol for the first half of the 19th century, and displaying political cautiousness, only two federal laws were struck down between 1803 and 1857.  What a difference when a more politically secure and assertive Supreme Court struck down all or part of 32 federal laws between 1994 and 2002!

Alexander Hamilton, a founding father of the United States and chief staff aide to General George Washington, was one of the most influential interpreters and promoters of the U.S. Constitution. He predicted that the federal courts would be the “least dangerous branch” of the federal government lacking soldiers or money to enforce their decrees. Hamilton rejected the idea that the Supreme Court was inherently anti-democratic when it struck down federal and state laws in the name of fundamental constitutional principles. Hamilton’s argument:  The Court would serve democracy rather than thwart it, because the Constitution represented the will of the people.

As Alexander Hamilton wrote in Federalist No. 78:

“A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

By and large, however, the Court throughout its history has reflected national sentiments about constitutional issues more frequently than it has tried (in vain) to check them. For this reason, fears about judicial tyranny have always seemed more urgent to interests on both sides of the political spectrum than to the American people themselves.

Marbury v. Madison decision established an air of supremacy 

The Marbury v. Madison decision of 1803 serves as the basis for when the Supreme Court took on an air of supremacy in its progression from Judicial Review to Judicial Activism.

It was Chief Justice John Marshall who declared in 1803 in Marbury v. Madisonthat “it is emphatically the province and duty of the judicial department to say what the law is.” As such, legal scholars consider Marbury v. Madison a central text for understanding the role of the Courts to interpret law in light of the Constitution, known as judicial review.  Accordingly, proponents of judicial review pointed to Chief Justice John Marshall’s decision in Marbury as a source supporting the view that the Supreme Court has the final say on what the Constitution means.  

Thomas Jefferson lamented that allowing the Constitution to mean whatever the Court says it means would make the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” 

Not until 1857 when the Supreme Court struck down the Missouri Compromise in Dred Scott v. Sanforddid the Court find another act of Congress unconstitutional.  

The power of judicial review was used sparingly for the next several decades until early in the 20th Century when the Court began striking down federal laws more often than ever before. John Marshall’s 1803 decision in Marbury vs. Madison was often cited by proponents of judicial review as a source to support their view that the Supreme Court has the final say on what the Constitution means.

In Cooper v. Aaron the Supreme Court fully displayed its omnipotence

The 1955 Supreme Court decision of Cooper v. Aaron has been identified as the case in which the Court fully displayed its omnipotence.  That case ruled school segregation to be illegal not only in Arkansas, but their ruling extended beyond the state of Arkansas to become the “supreme law of the land”, further demanding that all states must adhere to the ruling.  Their decision might have been popular in most states, which could account for the lack of significant outrage over the Court’s broader ruling, but the more significant problem is that it sets a precedent which has now escalated into what a growing number of Constitutionalists describe as a Supreme Court that has exceeded the intent and bounds of their branch of government.  

Following this article we will address the importance of reigning in judicial supremacy, perceived by some Constitutional lawyers as a failed feature of big government, inconsistent with what our founders fought a revolution to establish.

In accordance to Article 1, Section 7 of our Constitution, the Supreme Court is not mentioned anywhere. That tells us that the Supreme Court has absolutely no role to play in creating or amending our laws.  Justices simply have the power to judge and interpret the laws as they were enacted.  Lacking a push back against judicial tyranny, the Court will become more bold in its assumption of omnipotence in imposing its will upon the American people in a blatant disregard for the Constitution.

[Originally published at Illinois Review]