The power of judicial review

The first thing an Englishman would notice about the United States Supreme Court is that the justices don't wear wigs. When the first session of the court met in New York in 1790 under Chief Justice John Jay, one justice did in fact arrive wearing a white wig. But it seems that small boys pursued him down the streets, hooting and hollering, and all the justices decided it would be prudent to follow Thomas Jefferson's admonition: ``For heaven's sake, discard the monstrous wig which makes the English judges look like rats peeping through bunches of oakum.''

But the truly distinguishing feature of the American high court is that it is the world's most powerful judicial body. In fact, so powerful is it in making domestic policy - on racial desegregation, criminal justice, abortion, school prayer - that a few concerned constitutional scholars and national lawmakers think the federal system is unbalanced.

The ``Supreme Legislature,'' some wryly call the court. Some conservatives would like to curb its authority - just as liberals did in decades gone by.

Nonetheless, in 1987 the American judiciary, comprising the Supreme Court and the lower federal courts, is the most widely respected branch of the US government. The American people, recognizing the Supreme Court's role as the final arbiter of the government's exercise of power, consistently rate the judiciary higher than Congress or the presidency.

Over 150 years ago Alexis de Tocqueville observed the court's unique position as reflecting the deep commitment of Americans to the rule of law:

``A more imposing judicial power was never constituted by any people,'' he wrote.

Yet the Founding Fathers did not contemplate such a powerful judicial system. Alexander Hamilton wrote that the federal courts would be the weakest and ``least dangerous'' branch of government. The judiciary, said Hamilton, did not have the power of the sword or the purse. It had only ``judgment,'' and even then had to depend on the executive branch to carry out its rulings.

But the ostensibly limited grant of power to the judiciary has proved pivotal over the course of American history. From the outset, the court has played a fundamental role in shaping the evolution of American institutions and safeguarding justice and liberty under a democratic system of government.

The key instrument of the court's authority is the power of judicial review - that is, to determine whether legislation is consistent with the Constitution.

James Madison assumed the existence of this power. But judicial review was not explicitly stated in the Constitution; the concept evolved in the course of debate over constitutional ratification and was affirmed by state courts. It was not confirmed at the federal level until 1803, when Chief Justice John Marshall in Marbury v. Madison asserted the Supreme Court's power to nullify a law held to violate the Constitution.

``It is emphatically the province and duty of the judicial department to say what the law is,'' Marshall declared.

Judicial review is, in the words of one legal expert, the ``cornerstone'' of US constitutional law and the ``rock upon which this nation has been built.'' It has enabled the court to check power as it adjudicates between Congress and the states and between Congress and the president.

It was in fact the doctrine of judicial review that was invoked 170 years later to untangle the Watergate scandal. The court ruled that, presidential claims of executive privilege notwithstanding, President Nixon was subject to the rule of law and had to give up White House tapes to a Senate investigating committee. Protecting individual rights

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