Second Rate Democracy

Seventeen Ways America is Less Democratic than other Major Western Countries and How We Can Do Better

A web project of Douglas J. Amy, Professor Emeritus of Politics, Mount Holyoke College

Seventeen Ways America is Less Democratic than other Major Western Countries and How We Can Do Better

A web project of Douglas J. Amy, Professor Emeritus of Politics, Mount Holyoke College

The Seventeen Issues: The Supreme Court > 6. The Problem of Judicial Review

The Immense and Disturbing Power of Judicial Review

Most Americans disapprove of the Supreme Court for the wrong reason. They resent the Court only when it makes rulings with which they disagree.  In the 1950s and 60s, conservatives railed against the Warren court for its liberal decisions, such as outlawing school segregation. Today, many people have lost faith in the Court as it has moved further right and issued controversial decisions involving abortion, gun rights, and climate change.

But what should really bother us about the Supreme Court is something deeper.  The problem is not just the political leanings of its decisions, but the fact that it has the power to make those decisions in the first place.  Its enormous power rests on its use of “judicial review” — the ability to declare acts of Congress and the president to be unconstitutional.  Increasingly, it is the unelected branch of government that makes policy by overturning the decisions made by the elected branches. We need to ask ourselves: Is this a legitimate way to make policy in a country that claims to be democratic?

Unfortunately, judicial review has become deeply ingrained in American politics, and many people see it as a necessary practice in any democracy. However, many other major Western countries see judicial review as posing a problem for democracy and have actually rejected the American approach to this practice. Several do not even give this power to their highest court. And even in the other countries that allow judicial review, it is often exercised in different and more limited ways.

The Problem

Most state and federal courts spend most of their time adjudicating criminal and civil cases – deciding who is innocent or guilty, who is responsible for damages, etc.  But some courts have a special power:  judicial review. The pre-eminent example of this is the ability of the U.S. Supreme Court to review the actions and policies of the legislative and administrative branches of both the states and the federal government to determine if they are consistent with the U.S. Constitution.  If not, those actions and policies may be invalidated.  But this power of judicial review does not fit comfortably into democratic theory.  How can it be legitimate to have an unelected body with the power to routinely overturn popularly enacted laws?  At the core of every democracy is the notion that it is the people, through their elected representatives, who should determine the policy decisions that will affect their lives.  How can a society be seen as democratic when it routinely substitutes the will of a handful of justices for the will of the public and their representatives?  Why should the political views of an unaccountable branch of government have supremacy over the views of branches directly accountable to the people?

Is it legitimate to have an unelected body with the power to routinely overturn popularly enacted laws?

It would surely be an exaggeration to suggest that we have devolved into an undemocratic “juristocracy” – rule by unelected jurists or judges.  But it can also not be denied that American Supreme Court justices are among the most powerful in the world, and that the consequences of their decisions now reach into almost every area of American life. Judicial review has allowed the Court to become the final arbiter in a whole host of public policy areas.  Should women have the right to have abortions? Should the government be able to control guns? Should corporations and millionaires be allowed to outspend everyone else in financing campaigns?  Should Americans have universal health care?   We the people do not make these decisions.  Nor do our elected representatives.  The nine justices on the Court do.  Or often, five justices do.

And these examples are merely the tip of the iceberg. The Court now has the final say in an ever-widening  area of public policies, including free speech, gay rights, capital punishment, environmental protection, criminal rights, discrimination, property rights, surveillance and privacy issues, corporate constitutional rights, racial segregation, presidential powers, local policing practices, civil rights, the power of unions, freedom of the press, treatment of terrorism suspects, church-state separation, regulation of the internet, voting rights, affirmative action, end of life decisions, and immigration policy.  Some political scholars have argued that American politics has now become “judicialized” with many of the key policy decisions increasingly being made in the courts instead of by elected policymakers.

This problem of judicialization has worsened as judicial “activism” has become the rule for the Supreme Court.  The Court has increasingly abandoned restraint and reliance on precedent and extended its rule into more and more policy areas.  This kind of activism was once thought to only be the province of liberal Courts, who broke new ground in the 20th century to promote the rights of minorities, women, criminals, etc.  The pro-abortion Roe v Wade decision was seen by many as a classic example of an attempt to use judicial power to enact a more liberal vision of society.  But today, conservative Courts have also become activist and increasingly intent on promoting conservative ideology and values into more and more areas. For example, the Roberts’ Court’s decision to allow unlimited corporate spending in election campaigns overthrew a century of precedent and furthered its increasingly pro-business political agenda.  This kind of judicial activism has made it clear that justices are in fact “lawmakers in robes” whose rulings are strongly affected by their personal political and ideological views.

As we will see later, most other Western democracies have rejected the extreme form of judicial review that has been taken for granted here in America. But importantly, a look at our own history reveals that even in the United States the legitimacy of giving the Court supremacy over the elected branches has often been questioned.

Always Controversial

The notion of judicial review was controversial from the very beginning.  Many of the framers of the Constitution did favor judicial review, but many of the “anti-federalists” who opposed the new constitution were vehemently against it, citing its undemocratic usurpation of enormous power for the courts. One of them warned of the danger of this arrangement and questioned “whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible.”

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them. But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment.

Interestingly, there was nothing in the Constitution that explicitly gave the power of judicial review to the Court.  In fact, judicial review was not formally established until the 1803 Marbury v. Madison decision in which the Court decided that it had the ability to review the constitutionality of legislation.  It reasoned that this power could be inferred from the powers of the Court described in the Constitution, including the phrase in Article III that “The judicial Power of the United States, shall be vested in one Supreme Court… and shall extend to all Cases… arising under this Constitution…”

The Marbury decision provoked a great deal of controversy at the time.  Thomas Jefferson was outraged by the way it undermined basic democratic principles.

To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and for privilege. … But their power [is] the more dangerous, as they are in office for life, and not responsible, as the other functionaries are, to elective control

“To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed.” –Thomas Jefferson

The power of judicial review was considered so controversial that it was rarely invoked during the decades following the Marbury decision.  And when it was, as in the infamous Dred Scott decision that ruled that slaves were not considered people under the Constitution, many leaders spoke out against it.  One was Abraham Lincoln, who observed in his first inaugural address:

The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

As two Harvard Law professors, Nikolas Bowie and Daphna Renan, have explained, it wasn’t until after the Civil War, that the practice of judicial review, or ‘judicial supremacy” as they call it, really began to take hold and started to undermine our democracy.

Contrary to what many people have come to believe, judicial supremacy is not in the Constitution, and does not date from the founding era. It took hold of American politics only after the Civil War, when the Court overruled Congress’s judgment that the Constitution demanded civil-rights and voting laws. The Court has spent the 150 years since sapping our national representatives of the power to issue national rules. These judicial decisions have destroyed guardrails that national majorities deemed vital to a functional, multiracial democracy—including protecting the right to vote and curbing the influence of money in politics. Even worse, the Court’s assertion of the power to invalidate federal laws has stripped Americans of the expectation, once widely shared, that the most important interpretations of the Constitution are expressed not by judicial decree but by the participation of “We, the People,” in enacting national legislation.

And even after the Court began to routinely usurp the role of Congress as the central political power in our government, voices continued to be raised in opposition to this power grab.  President Theodore Roosevelt, for instance, was no fan of judicial review.  He argued that the American people must be made “the masters and not the servants of even the highest court in the land,” and “the final interpreters of the Constitution” for “if the people are not to be allowed finally to interpret the fundamental law, ours is not a popular government.” He proposed that citizens should be able to repeal unpopular state supreme court decisions through referendums. And the controversy continues today, as a number of eminent legal scholars and political scientists continue to question the desirability of judicial reviews, including Larry D. Kramer in The People Themselves: Popular Constitutionalism and Judicial Review, Mark Tushnet in Taking the Constitution Away from the Courts, Jeremy Waldron in “The Core of the Case Against Judicial Review” in the Yale Law Journal, and Bowie and Renan in The Atlantic piece, “The Supreme Court is Not Supposed to Have This Much Power.”

Defending Judicial Review: Are Justices Merely Legal Experts?

There are of course those who defend the practice of judicial review.  It could be argued, for instance, that giving the Court final say over constitutional interpretation makes sense because the justices are the most qualified people to make these decisions.  Interpreting the Constitution is seen as a purely legal exercise – not a political one. Justices are authorities on the law and the Constitution and so their views should be privileged over those of our elected representatives.  There are two big problems with this argument.  First, the Supreme Court is not the only source of expertise on constitutional issues.  The president and members of Congress have access to many legal scholars and constitutional experts to help them to analyze the constitutional implications of their policy decisions.

The other problem was identified long ago by one of America’s preeminent political scientists and democratic theorists, Robert A. Dahl. Writing in 1957, he observed that “Much of the Supreme Court’s legitimacy rests upon the fiction that is not a political institution but exclusively a legal one.” He concluded that the Court was as much as political as a juridical institution; one that arrived at “decisions on controversial questions of national policy.” And in fact, most Americans do not buy this idea that justices are simply acting as apolitical legal experts. They believe, quite rightly, that justices’ decisions are strongly affected by their personal political beliefs and values. Surveys show that only one in eight Americans believe that justices decide cases solely on legal principles.  And 60% of the public believe that the justices “often let their own personal or political views affect their decisions.” The consistent liberal/conservative divide we see in Court decisions would seem to reinforce this idea that politics plays a strong role in the process of judicial review.  So if justices are really unelected “lawmakers in robes,” then why should we let their views have supremacy over the views of lawmakers who have been chosen by the public?

Defending Judicial Review: Necessary for Protecting Minority Rights?

A more plausible defense of judicial review is the argument that it is needed to safeguard another important democratic value: the protection of basic human and political rights. It is thought that popularly elected bodies can succumb to the temptation to pass legislation that interferes with the rights of minorities.  Only the presence of the Court and its power of judicial review can block this “tyranny of the majority” and protect minority rights.  But this view of the Court as the lone champion of minority rights is oversimplified and misleading.  The truth is more complex.  The Supreme Court has sometimes been the stalwart guardian of rights and liberties – but it is also true that it has often failed miserably in that role.

Consider, for instance, the rights of African Americans.  Many people justly celebrate the role of the Court in the 1950s and 1960s in striking down state laws maintaining segregation and discrimination against African Americans.  In 1954, the Court’s Brown v. Board of Education decision invalidated state-mandated segregation in education.  And in the sixties, the Court upheld many congressional efforts to expand civil rights and voting rights for African Americans.  But these two decades were in fact an anomaly.  Both before and after, the Court was no friend to African Americans and their rights.  As Harvard Law School Professor Michael Klarman has noted:

The conventional wisdom that the U.S. Supreme Court heroically defends racial minorities from majoritarian oppression is deeply flawed: Over the course of American history, the Court, more often than not, has been a regressive force on racial issues. Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress’s effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights “which the white man was bound to respect.” After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations.  Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans

Klarman goes on to observe that once Richard Nixon was able to appoint four conservative justices to the Court in the 1970s, its rulings began to again become more hostile to the interests of African Americans.  In a series of decisions over several decades, the Court rolled back efforts to integrate schools, ruled against raced-based affirmative action, invalidated election districts designed to empower Black voters, refused to acknowledge the racial prejudice in death penalty cases, and affirmed state voter restriction efforts aimed at disenfranchising Black voters. These kind of examples of the Supreme Court’s failure to protect the rights of powerless and oppressed groups have led Professor Jeremy Waldron, writing in the Yale Law Journal, to conclude that there is “no reason to suppose that rights are better protected by [judicial review] than they would be by democratic legislatures.”

This is not to say that democratic legislatures have never passed laws that violated the rights of minorities. One can find numerous examples of this.  The point is that all democratic political institutions, including the courts, sometimes give in to the temptation for the majority to “tyrannize” the minority.  So the Supreme Court cannot use the claim that it’s the sole or best defender of rights in order to justify the enormous power that judicial review gives to it.  At times, it has been elected officials who have in fact led the way in promoting important human rights in the United States. It was the president, not the courts, who freed the slaves; and it was Congress that established voting rights for minorities.  Women, the elderly, the disabled, and minorities have all successfully worked through our elected branches of government to protect their rights and free themselves from discrimination.  And when it comes to expanding the rights of Americans beyond the original Bill of Rights, it has been Congress that has been at the forefront, passing legislation to enact basic rights for consumers, workers, patients, and the elderly.

Entrusting legislatures to protect basic rights – as is done in some other democracies – also has an important advantage over the courts.  Once the Court makes a decision undermining a basic right, there is little the public can do until and unless the Court eventually decides to overturn its own ruling. But if the legislative branch passes legislation violating a minority’s basic rights, the public does have some recourse.  It can vote those legislators out of office and/or lobby strongly for the repeal of the law.  Legislators can be made accountable for actions that oppress minorities.  Justices cannot.

Judicial Review and the Constitutional Protection of Business

To be fair, the Supreme Court does have an exemplary record of vigorously defending the rights of one particular minority group: corporations. Over the last 140 years, the Court has consistently used judicial review to establish, expand, and protect the constitutional rights of corporations.  This began in the late 19th century with a series of rulings in which the Court established that “corporations are persons within the provisions of the Fourteenth Amendment.”  This amendment of course was originally passed to ensure that former slaves were not deprived of “life, liberty, or property, without due process of law.” But the Court’s rulings encouraged corporations to “hijack” this amendment to argue that their due process rights were being violated by government actions. Soon corporate suits under this amendment began to far outnumber suits by former slaves. Specifically, corporations used these suits to have state and federal regulatory efforts declared unconstitutional.  In the early twentieth century, for instance, state legislators were passing laws to try to protect workers from economic exploitation and unsafe work conditions.  But the Court ruled that these laws violated corporations’ due process rights, and between 1900 and 1937, it used judicial review to invalidate over 170 of these laws. For example, it declared unconstitutional laws limiting the number of hours bakers could work, outlawing child labor in factories employing children under 14, and mandating a minimum wage.

The Court has shifted political power away from workers, consumers, and environmentalists and toward businesses.

Another surge of Court protection of corporate constitutional rights began in the 1970s and continues today. In 1978, for instance, the Court ruled that surprise inspections authorized by the Occupational Safety and Health Act were an unconstitutional violation of corporations Fourth Amendment privacy rights. More importantly the Court began to expand the constitutional rights of business under the First Amendment – again in order to protect them from government regulation. From 1972 to 1987, cases with businesses claiming First Amendment protections rapidly increased from roughly 20% of the Court’s docket to 40%. As Jedediah Purdy has explained, the Court’s aggressive support of corporate constitutional rights has built a constitutional wall around corporations that insulates them from public efforts to regulate them and reduce their undesirable practices. It serves to shift political power away from workers, consumers, and environmentalists and toward businesses.

The logical culmination of this trend was the controversial Citizens United decision where the Court found that government efforts to restrict business spending in election campaigns violated corporations’ First Amendments free speech rights – overthrowing 100 years of precedent and increasing the political power of business enormously.

Importantly, the courts in no other major western democracy have granted corporations the extent of constitutional rights that our Supreme Court has.  In fact, as we will see next, many of these other countries also have a radically different view of judicial review itself and the role this practice should play in a democratic political system.

Other Democracies Do It Better

Many Americans would probably be surprised to learn that some other leading democracies do not consider judicial review as a necessary part of a democratic system and do not give that power to their courts.  In Great Britain, for example, their highest court does not have the power of judicial review. Its job is to rule on decisions made by the lower courts, not to rule on whether laws passed by parliament are valid.  New Zealand has no judicial review, and the constitution of the Netherlands explicitly forbids it.  Finland, Luxembourg, Norway, Sweden, and Switzerland manage to get along without it as well. In these countries, it is thought that the legislature, the elected representative of the people, is the most appropriate arbiter of constitutional issues. It is seen as undemocratic for the views of unelected justices to override the views of legislators who represent the will of the public.

Some American champions of judicial review may be shocked to learn that the major democracies without judicial review have not become oppressive societies with frequent violations of civil liberties and a constant denial of minority rights. In fact, a 2017 study ranked Switzerland as number one among 159 countries in terms of human freedom. New Zealand, Finland, Norway, the Netherlands, and Luxembourg were ranked numbers three, six, seven, nine and thirteen respectively. (The United States was number seventeen.)  How can freedom and rights flourish in countries without the protections of judicial review?  In part it is because these other countries have a long tradition of respect for civil liberties and minority rights.  These principles are entrenched in their political cultures.  So legislators respect these rights and know that the public will frown on laws that undermine or violate them.  It seems then that we can have a healthy and thriving democracy, with protections for minorities, without the necessity of judicial review. As some political scientists have concluded: “Democracy may function perfectly where it is the politicians, rather than the courts and judges, who protect citizens against the potential abuse of power by the state.”

It is true, however, that the majority of other leading Western democracies have followed the example of the United States and adopted the practice of judicial review.  But it is important to note that even in these countries, this power is often more constrained than in the U.S.  In some countries, for instance, citizens cannot initiate constitutional challenges to laws.  France has a Constitutional Council – not a court – that can be called on by the national assembly or the prime minister to determine the constitutionality of a law, but only after it has been passed by the legislature, and not yet signed by the president.

In Canada, its highest court does have the power of judicial review, but their constitution also contains a “Not Withstanding” clause.  This allows provincial and the federal governments to continue to enforce a law “not withstanding” the fact that it has been found unconstitutional by their Supreme Court.  It’s a kind of “time out” feature in their practice of judicial review.  If a legislature feels that a court’s ruling of unconstitutionality is severely mistaken or unreasonable, it can ignore that ruling for five years, and can renew that decision again after that.  This has not led to a wholesale override of court decisions – this clause has been used only sparingly by a few provincial legislatures – but it does serve as an important limit on the court’s supremacy over the legislative branch.

The Danish Approach:  An Intriguing Alternative

The highest court in Denmark also has the right of judicial review, but its approach to that power provides an intriguing alternative to the way it is used in the United States. In that country, the court recognizes that the body with the most democratic legitimacy is parliament, and so that body should usually have the power to interpret the constitutionality of the measures it passes. As two scholars of the Danish legal system have explained this principle:

[W]henever judicial review is undertaken on the basis of broad and imprecise constitutional provisions, such as human rights, …the courts [will] give significant leeway or margin to the assessment of the legislator, recognizing the direct democratic mandate of the latter. …The courts will only set aside legislation that is manifestly in violation of the constitution, since it contravenes any plausible interpretation of it.

The Danish Supreme Court routinely defers to the constitutional interpretation of the legislature as long as it has some reasonable plausibility – even if that differs from what the court would have preferred.

In other words, the Danish court will routinely defer to the constitutional interpretation of the legislature as long as it has some reasonable plausibility – even if that interpretation differs from what the court would have preferred.  The Danish approach acknowledges that there can be more than one reasonable interpretation of a constitutional principle. But in the U.S., the Supreme Court always insists that its interpretation must be applied, no matter how reasonable the interpretation that Congress or the presidency offers for its action.

The Danish practice of judicial constraint and deference to the democratic legitimacy of publicly elected bodies has meant that it has only extremely rarely declared an act of parliament unconstitutional.  Speaking in 1989, a Danish Supreme Court judge explained it this way: “The willingness of the courts to set aside acts of Parliament may be compared to an emergency brake:  only if the machine runs wild, leaving the population and its general sense of justice behind, may one expect the use of the emergency brake.”

 Solutions for the United States

As this discussion has illustrated, there are good reasons to doubt the democratic legitimacy of the enormous power given to Supreme Court justices through judicial review.  And it is also clear that the U.S. is again at the far end of spectrum in terms of how much power it gives the courts to rule on the constitutionality of actions of elected legislators and executives.  We have more juristocracy than many other leading democracies. The experience of other advanced democracies strongly suggests that our democracy could get along just fine with less judicial review – or perhaps none at all.

There are a number of possible reforms in this area – most already in place in other major Western democracies.  The most direct approach would be to modify the Constitution to eliminate the Court’s power of judicial review.  This would address this undemocratic process head on and bring us in line with some other leading democracies like Great Britain, the Netherlands, New Zealand, and Sweden.

Or we might take the Danish approach, with the Court often deferring to Congress’s interpretation of the Constitution if it was not clearly unreasonable.  Consider how that might work with the volatile issue of gun control.  Congress might pass a bill strongly regulating the personal ownership of firearms, based on its interpretation of the Second Amendment guaranteeing only the right of militias to arm themselves – a view supported by a large number of constitutional scholars.  A Danish-like Supreme Court would allow such a law to stand, even if it did not accord with its own interpretation of the Second Amendment.

There are some more modest approaches available.  We could follow the example of our neighbor to the north and add something like the Canadian “Not Withstanding” clause to our constitution.  This would allow federal and state governments to sometimes ignore Court rulings.  An even less radical reform has been suggested by the noted constitutional scholar Cass Sunstein: what he calls “judicial minimalism.” In this approach, the Court decides individual cases on the narrowest grounds possible and leaves “fundamental issue undecided,” especially where public opinion is deeply divided and/or in flux.  In his view, the Court should resist making sweeping rulings in areas like abortion, free speech on the internet, the right to die, etc.  Rather the Court should leave those difficult issues for the democratic process to resolve as elected policymakers deliberate and work through these issues with each other and the voters.

The Prospects for Reform:  Good Luck!

Unfortunately, the chances of reform in this area are very low.  For one thing, there is no large public demand for reining in the Court’s power of judicial review.  While polls show there is widespread public dissatisfaction with the Court and some of its decisions, most Americans do not seem concerned about the excessive power of that body.  A little over half of Americans believe that the Supreme Court should have the final say over which laws are constitutional, while just 21 percent say the Court should not have that power. Most Americans have grown up with this practice and seem to assume (mistakenly) that it is the natural role of the courts in any democracy.

Most Americans have grown up with judicial review and seem to assume (mistakenly) that it is the natural role of the courts in any democracy.

Also working against change in this area are some substantial political obstacles. For example, most attempts to drastically limit the powers of the Court would probably necessitate a constitutional amendment.  And, of course, amendments are extremely difficult to pass even when there is large public support for them.

Sunstein’s “minimalism” or the Danish “deference to parliament” approach would not require a constitutional amendment, but they would require a radical change in the way justices see themselves and their role in our political system.  And at this point, there is no indication that members of the Court are contemplating voluntarily reining in their own power in this way.

For all these reasons, it seems that for the foreseeable future we are stuck with judicial review and the ever-growing power of the Supreme Court.  This institutional threat to our democratic values and processes is likely to persist and perhaps even worsen.

read the next issue: 7. Private Money in Campaigns

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