2006 Fall, Pg. 52. Judicial Review and Its Limits; Part I (Legitimacy).

• Author: By Attorney Eugene M. Van Loan III

New Hampshire Bar Journal

2006.

2006 Fall, Pg. 52.

Judicial Review and Its Limits; Part I (Legitimacy)

New Hampshire Bar Journal Fall 2006, Volume 47, No. 3Taxes, Trusts, Judicial Review, and more. . .Judicial Review and Its Limits; Part I (Legitimacy)By Attorney Eugene M. Van Loan IIIMerrill v. Sherburne(fn1) has long been celebrated as New Hampshire's version of Marbury v. Madison,(fn2) i.e., the first instance of a court in New Hampshire to exercise the power of judicial review. Only recently, many of us have learned from several articles published in the New Hampshire Bar Journal that judicial review was far from a novel proposition by the time that Merrill v. Sherburne was decided.(fn3) For example, as was pointed out in the Bar Journal's 2002 publication of the UNH masters' thesis of Richard M. Lambert, several of our Superior Courts had exercised the power more than three decades previously.(fn4) Similarly, earlier this year, the Journal reprinted a 1995 article by Timothy Lawrie which had originally appeared in the American Journal of Legal History.(fn5) In his article, Interpretation and Authority: Separation of Powers and the Judiciary's Battle for Independence in New Hampshire, Mr. Lawrie recounts the details of several previously unpublished New Hampshire Supreme Court cases - all predating Merrill - wherein the Supreme Court exercised the power of judicial review.(fn6)

Both Mr. Lambert's thesis and Mr. Lawrie's article deserved publication in New Hampshire simply on account of their scholarly contributions to our historical understanding of the constitution under which we live. However, as I noted in my introduction to the reprint of Mr. Lawrie's article, when it comes to judicial review, the lessons of history raise some interesting challenges to the conventional wisdom about its proper role in our modern political system.(fn7)

Suffice it to say that what I call in this paper horizontal judicial review - the power of the judiciary to review the acts of its co-equal branches of government for consistency with the Constitution - has become much more of a force in our modern political system than it ever was in the era of the Founders. Whereas the judiciary initially invoked its authority quite sparingly, the phenomenon of some court striking down a statute or declaring the action of an executive official unconstitutional is today almost a matter of routine.

But it is not just the quantity of judicial review which has changed; its quality has also changed. For example, in the early years of the Republic, it was conventional wisdom that the power - and the responsibility - to make judgments about constitutionality rested with all departments of government. Accordingly, it was far from accepted that judicial determinations of constitutionality were binding upon the other branches. By way of contrast, the judicial review of today not only asserts that constitutional decisions by courts are "final" in that they are conclusive as to the parties to the case at hand, but it also claims that these decisions are "supreme" in the sense of being binding upon everyone else. Indeed, some judges and academics have even gone so far as to claim that judicial review is "exclusive," i.e., that the only branch of government which has the authority to make determinations of constitutionality is the judicial branch. Similarly, whereas certain subjects (so-called political questions) were originally thought to be exempt from judicial review, modern judicial review aspires to be "universal" in that it recognizes virtually no limits. And, finally, whereas early American political theory postulated that the judicial branch ultimately depended upon the cooperation of the other two branches for the enforcement of its orders in constitutional cases, some modern judges have even claimed to be able to wield the power of the purse and the power of the sword to enforce their orders.

If judicial review is really final, supreme, exclusive, universal and self-executing, it is no longer merely judicial review. It is something much more muscular. Indeed, some critics have dubbed it judicial sovereignty.

In any case, whatever it is called, the modern brand of judicial review is exemplified by the self-assertive decisions increasingly being issued by state supreme courts in cases involving the funding of public education. Two of the most egregious examples are the 2003 decision of the Nevada Supreme Court in the case of Guinn v. The Legislature of the State of Nevada(fn8) and the decision last year by the Kansas Supreme Court in Montoy v. State of Kansas.(fn9) In the former, the court held that a provision of the Nevada Constitution requiring the legislature to "provide for a uniform system of common schools" negated another provision in the same constitution which required that any spending bill which would cause the state budget to exceed a specified cap must receive a supermajority vote to pass. In holding that bills designed to fund education could exceed the cap even if passed by only a majority vote, the Nevada Supreme Court, in essence, ruled a provision of the Nevada Constitution unconstitutional!(fn10) In Montoy, the Kansas Supreme Court found that the Kansas Legislature's appropriation of $142 million did not constitute full compliance with the court's earlier order directing the Legislature to fix the purported constitutional infirmities in Kansas' existing educational funding scheme. Claiming that the court's "remedial powers" in constitutional cases trumped the provisions of the Kansas Constitution which delegated the responsibility for appropriation and taxation exclusively to the legislature, the court ordered the Kansas Legislature to immediately raise another $143 million to support education - or else. The court did not say what the "or else" would be, but many public officials interpreted this to be a threat that if the legislature did not toe the mark, the court would close the state's schools.(fn11) In other words, if Kansans did not receive what the court considered to be a "constitutionally adequate" education, they would get no education at all!

For those of us who still treasure the notion that the best form of government is democracy, these examples of judicial sovereignty are shocking. Equally disturbing is the bloviated rhetoric which often accompanies them. Take, for example, the pompous lecture delivered by the Kentucky Supreme Court to those who deigned to challenge that court's authority to involve itself in matters of education policy. Here is what the Court said: "Before proceeding...we must address a point made by the appellants with respect to our authority to enter this fray and to 'stick our judicial noses' into what is argued to be strictly the General Assembly's business.... To avoid deciding the case because of 'legislative discretion', 'legislative function', etc., would be a denigration of our own constitutional duty. To allow the General Assembly (or, in the point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable. The judiciary has the ultimate power, and the duty, to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court's view of the constitution is contrary to that of the other branches, or even that of the public."(fn12)

Although it may be "literally unthinkable" for the justices of many of our American courts to acknowledge that others besides themselves have the power and duty to make constitutional determinations, a growing number of responsible scholars in this country disagree with them. More importantly, concerns over judicial sovereignty have started to bubble up even among the general citizenry. For example, much to the chagrin of the ABA, a substantial majority of the respondents to a recent poll which it had commissioned to gauge public sentiment about the judicial system in America replied that they considered the media's increasingly prevalent attacks upon the judiciary as richly deserved.(fn13) Indeed, what Alexander Hamilton once called the least dangerous branch is fast becoming viewed as the most dangerous branch.

Up until now, however, the field of battle over judicial sovereignty has been confined to the realm of words. Nevertheless, if the tide of judicial activism(fn14) does not begin to ebb, I fear that words will become deeds. At some point, some legislature or some governor who is faced with an order like that issued by the Supreme Court of Kansas in the Montoy case will "just say no."(fn15) Such a situation almost occurred in Kansas. It was only averted because the issue of resistance to the court got bogged down in partisan politics.(fn16) On the other hand, the day may well come in some state where the same political party controls both the legislature and the governor's chair and where even the special interest groups who stand to benefit from a court order will have had enough of judicial sovereignty. And, if that day does come, the court whose order is defied will have established that the judiciary is not only the least dangerous branch, but that it is also the least relevant branch.

Nevertheless, it is...