The power of judicial review
Washington — 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
`That's one of the most remarkable things about the Constitution,'' says David O'Brien, a constitutional scholar at the University of Virginia. ``We have a basis for an independent judiciary and for a government of law and not of men. That's why the judiciary is so important and why the justices are constantly being attacked.''
The exercise of judicial power did not begin in earnest, however, until the end of the 19th century. Only two acts of Congress were held unconstitutional before the Civil War. Most of the federal statutes and state laws struck down by the court have been voided since 1900 - a trend spawned by the activism of legislatures, especially the state legislatures, in making economic and social policy.
Over the years, more than 900 state acts have been held to be unconstitutional and some 130 federal statutes have been voided in whole or in part. The court has ventured into virtually every aspect of the nation's social and economic life, often when the president or Congress hesitated to act or when national consensus was lacking on a divisive issue.
``No country makes such sweeping use of judicial review and no national judiciary makes so much social policy,'' says A.E. Dick Howard, a legal scholar at the University of Virginia.
From the 1920s the judiciary has focused increasingly on civil liberties and individual rights. The 14th Amendment, ratified in 1868, became the impetus for judicial action. That amendment, which was aimed at eradicating the lingering effects of slavery, places restrictions on state actions, in contrast to the Bill of Rights, which limits actions of the federal government.
In a key case in 1925 the Supreme Court ruled that the 14th Amendment's guarantee of ``due process'' prevented states from abridging the right of free speech. With that ruling, the court began a series of major decisions that ``incorporated'' the major provisions of the Bill of Rights into the 14th Amendment, thereby protecting a citizen's rights against state as well as federal action.
Other actions, too, show the wide sweep of judicial power:
In the historic case of Brown v. Board of Education in Topeka, Kan. (1954), the court decreed the end of racial segregation in the schools. Another decision took prayers out of public schools. Plunging into the political thicket, the court brought about ``one man, one vote'' reapportionment, ending an abuse in which some state legislative districts had 18 times the share of votes for representatives as others. It also shook up the criminal-justice system, guaranteeing accused persons the right to a lawyer and obligating police to inform suspects of their constitutional rights.
The court also loosened federal and state obscenity laws, contributing (some say) to the era of permissiveness. In Roe v. Wade it enunciated women's right to abortion. And it began moving toward increasing constitutional rights in welfare, housing, and education.
After a long period of what University of California law scholar Martin Shapiro calls ``a march to equality'' by the egalitarian Warren court, the Burger court - despite its landmark decision on abortion in 1973 - slowed the liberalizing trend that marked the decisions of the '60s and '70s. Resistance to judicial activism
Yet the Burger court, which consolidated rather than turned back the work of its predecessor, also made significant gains in protecting individual rights, especially bolstering the role of women in the workplace. Former Chief Justice Warren Burger also recalls the court's expansion of free speech.
``Some think we're too loose, but how can you have a `little' control of free speech?'' he comments. ``You have free speech or you don't.''
Has the Supreme Court become too activist?
A major issue today is whether Congress has the right to restrict the appellate jurisdiction of the court on certain issues. Some academics and lawmakers think the Supreme Court has gone too far in ``legislating'' in the social arena.
Professor Shapiro argues that the principal impact of the court has not been to increase its own powers, but rather the power of the federal government over the states. Voicing concern about the centralization of the federal government, he suggests that the court has gone too far in mandating polices on race discrimination; on abortion; and on criminal justice.
``Desegregation is not integration,'' Shapiro says. ``Federal judges have become tin gods and little dictators. They have turned `Thou shalt not segregate' into `The law requires you to integrate,' [even though] most Americans opposed busing.''
Some legal scholars are also disturbed by the court's growing role in overseeing the enforcement of judicial decrees. As a result of so-called ``institutional litigation,'' federal courts have run schools and prisons. But only a tiny percentage of all cases involves such litigation.
The high visibility and hence perceived activism of the Supreme Court today is attributed in part to the electronic revolution. In the past the absence of an instantaneous information network kept the news media from focusing on the court.
``The  Dred Scott decision triggered the Civil War, but no one knew about it,'' comments Harvard scholar Laurence Tribe. ``Right now, relatively trivial decisions are covered by the evening news - whereas only a select few knew them before.''
As debate over the court's role intensifies, it is widely acknowledged that the judiciary often steps in when the executive and legislative branches fail to act, as they did in the area of race discrimination. Then the high court, embodying the country's conscience, becomes a catalyst for change.
``Even a conservative court can't return to the good old days of the `least dangerous branch,''' Professor O'Brien says. ``The Burger court struck down more statutes than the Warren court. The court will continue to be activist in that sense.''
That activism may come from America's being such a litigious society. Americans are constantly pressing to vindicate the claims of individual rights and to increase the accountability of institutions, be they governmental, medical, legal, or corporate.
The kinds of cases brought to the judiciary, furthermore, often reflect a shifting of public attitudes. For instance, a new chapter appears under way in the troubled history of court-ordered busing, which was seen as a remedy for a history of legally segregated public schools. Last year the Supreme Court let stand a lowercourt decision ratifying the end of busing in Norfolk, Va.
Mr. Burger, now the chairman of the Commission on the Bicentennial of the Constitution, recalls the first ``women's lib'' case in 1971 (Reed v. Reed), when the court struck down a discriminatory Idaho law against appointing women as estate executors. ``Some things are around for a hundred years - like discrimination against women - and never challenged,'' Burger says. ``Then new attitudes arise.''
But, he stresses: ``Judges are not appointed to reflect what people are thinking. They rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times.'' Sparring with executive branch
Those pressures include pressures from the executive branch.
Throughout history, US presidents have sought to put their stamp on the Supreme Court through appointments to the bench. President Reagan, who has already added two conservative justices to the Supreme Court and by the end of his second term will probably have appointed more than half the federal judges in the country, likewise seeks to reshape the judiciary to fit his own conservative beliefs.
As part of an effort to promote ``judicial restraint,'' Attorney General Edwin Meese III has asserted that government officials need not consider Supreme Court interpretations ``the supreme law of the land.'' Only the Constitution is the ``supreme law,'' he declared in a speech last year. Mr. Meese touched off an uproar, because he seemed to be saying that rulings can be ignored by all but the affected parties and seemed to be encouraging resistance to unpopular decisions.
But some liberal as well as conservative legal scholars agree with Meese, and they suggest it is salutary for an attorney general to spur discussion of these issues. They note that the judiciary is part of a fluid, dynamic process in which Congress, the president, and the states also take part. Court decisions stand up over time only if the legislature, the president, and the public find them reasonable.
``It's a common mistake to equate constitutional law with the Supreme Court,'' says Louis Fisher, a specialist at the Congressional Research Service. ``The president, Congress, and the states are extremely active in shaping constitutional law in a definitive way.''
``Meese was essentially correct,'' Mr. Fisher says. ``It's a historical fact that the court cannot be final on many issues. Even on abortion there will be litigation over and over.''
The attorney general's approach to the judiciary has stirred considerable controversy, however. Some scholars suggest that conservatives want no less judicial ``activism'' than liberals do. Conservatives, they say, simply want different decisions.
``Meese's attacks have been politically motivated and not sound,'' says Professor Tribe. ``He is in favor of court restraint on affirmative action but not on abortion. It's a result-oriented, not a principled, set of objectives.'' Historically, the Meese ``assault'' on the judiciary is not new. Jefferson railed at the high court's rulings. Abraham Lincoln denounced the court's decision in the Dred Scott case, which held that blacks could not become citizens and Congress could not stop the spread of slavery into the territories.
In the 1920s the high court, under the intellectual leadership of Associate Justice Louis Brandeis, was pilloried as a ``superlegislature.'' And dispute over the court flared repeatedly during the New Deal years, when the justices struck down some economic-recovery legislation.
The reassuring lesson of American constitutional history is that, though justices usually conform to the philosophical leanings of the presidents who appoint them, they exercise considerable independence. Lifetime tenure and a commitment to the Constitution tend to weigh against unquestioning loyalty to a person.
Some presidents have been disappointed in ``their'' justices. Dwight Eisenhower, for example, later regretted his appointment of Earl Warren as chief justice because of the school desegregation case. Theodore Roosevelt called Oliver Wendell Holmes a ``bitter disappointment.'' Harry Truman was irritated with Tom Clark, who voted against President's seizure of the US steel mills. Richard Nixon did not expect Harry Blackmun to become one of the most moderate of his appointees.
If history is any guide, the court under new Chief Justice William Rehnquist may also prove to be less conservative than President Reagan hopes and many Americans fear.
Yet in the context of separation of powers, the Supreme Court over two centuries has overwhelmingly supported the expanding power of the presidency, especially in wartime or in the conduct of foreign policy. In 1863 the court ruled that Lincoln could wage war with the South without congressional declaration. In 1936, in US v. Curtiss-Wright, it affirmed the broad foreign-policy powers of the president independent of any act of Congress. In Korematsu v. United States, involving the internment of Japanese-American citizens in World War II, it gave the president national-security powers even in the domestic arena (a decision subsequently overruled). Upholding presidential power
Under Franklin Roosevelt the Charles Evans Hughes court, despite FDR's aborted ``court packing'' plan, ultimately began to uphold New Deal measures. And in the Reagan era it has legitimized the powers of the president by overruling the legislative veto.
Ironically, says presidential analyst Thomas E. Cronin, the court also expanded presidential power in the case of United States v. Richard Nixon. While it limited Mr. Nixon's claims of executive privilege and ordered him to give up the tapes required in a criminal procedure, it upheld for the first time the constitutionality of executive privilege.
``The impression should by now be well established that the Supreme Court generally favors the American president,'' writes Mr. Cronin, a scholar at Colorado College.
If the justices themselves have a major concern, it is probably their heavy workload. In the 1953 term the court received about 1,300 cases and wrote about 100 opinions. Now it receives some 5,000 cases a year and selects and issues full written opinions on roughly 150 to 160. There is more review of state cases than in earlier years.
Issues today, moreover, are more complicated, requiring especially careful treatment and resulting in a more fractious court. Judges need to know more about economics and other technical issues.
``Just selecting and reviewing [cases] takes up enormous time,'' says Burger. ``The Supreme Court is doing more work than it should .... The boat's overcrowded.''
For all the problems of overload, complexity of issues, and controversy over its role, the judicial branch remains a robust guardian of American representative democracy, ensuring that power remains subservient to the cause of liberty.
Lloyd N. Cutler, a former counsel to President Carter, writes of the judiciary:
``It has the greatest respect among the propertied and the underprivileged classes. One, because of all the institutions it has worked the best and, two, because ... it has upheld the rights of minorities. The court is now looked on as the defender of everyone's rights.'' Tomorrow: The states bounce back Further reading: ``The Supreme Court and Constitutional Democracy,'' by John Agresto: Cornell University Press (1984) ``Government by Judiciary,'' by Raoul Berger: Harvard University Press (1977). ``Storm Center,'' by David M. O'Brien: W.W. Norton and Company (1986). ``God Save This Honorable Court,'' by Laurence H. Tribe: Random House (1985).