Judicial Legislation

AuthorEdward J. Erler
Pages1457-1460

Page 1457

The term "judicial legislation" appears to be something of an oxymoron, as the Constitution clearly assigns the principal task of LEGISLATION to the Congress. The Constitution does, of course, give the President a role in the legislative process through the VETO POWER and through his power to recommend legislation to Congress that "he shall judge necessary and expedient." The Framers explicitly rejected, however, a similar role for the judiciary. Several attempts to create a council of revision, composed of the executive and members of the Supreme Court, to review the constitutionality of proposed legislation, were defeated in the CONSTITUTIONAL CONVENTION. The most effective arguments against including the Court in a council of revision were derived from considerations of the SEPARATION OF POWERS. Elbridge Gerry, for example, remarked

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that including members of the Supreme Court in a revisory council "was quite foreign from the nature of the office," because it would not only "make them judges of the policy of public measures" but would also involve them in judging measures they had a direct hand in creating. Assigning ultimate legislative responsibility to the Congress apparently reflected the Framers' belief that, in popular forms of government, primary lawmaking responsibility should be lodged with the most representative branches of the government. In JAMES MADISON ' s words, "the people are the only legitimate fountain of power."

Justice FELIX FRANKFURTER expressed the same view in his concurring opinion in American Federation of Labor v. American Sash and Door Co. (1949). "Even where the social undesirability of a law may be convincingly urged," he said, "invalidation of the law by a court debilitates popular democratic government.? Such an assertion of JUDICIAL POWER deflects responsibility from those on whom in a democratic society it ultimately rests?the people." Frankfurter continued his brief for judicial restraint by arguing that because the powers exercised by the Supreme Court are "inherently oligarchic" they should "be exercised with rigorous self-restraint." The Court, Frankfurter laconically concluded, "is not saved from being oligarchic because it professes to act in the service of humane ends."

The modern Supreme Court is not so easily deterred as Frankfurter was by charges of oligarchy. Since the landmark BROWN V. BOARD OF EDUCATION decision in 1954, the Court has actively and overtly engaged in the kind of law-making and policymaking that in previous years was regarded as exclusively the province of the more political branches of government. William Swindler explained the Court's transition from judicial deference to judicial activisim in these terms: "If the freedom of government to act was the basic principle evolving from the Hughes-Stone decade, from 1937?1946, the next logical question?to be disposed of by the WARREN COURT?was the obligation created by the Constitution itself, to compel action in the face of inaction. This led in turn to the epochal decisions in Brown v. Board of Education, BAKER V. CARR, and GIDEON V. WAINWRIGHT."

Some scholars have argued that it was the identification of EQUAL PROTECTION rights as class rights and the attendant necessity of fashioning classwide remedies for class injuries that gave the real impetus to the Court's JUDICIAL ACTIVISM in the years immediately following Brown. The Court, in other words, effectively legislated under its new-molded EQUITY powers. (See INSTITUTIONAL LITIGATION.)

The Court's legislative role is usually justified in terms of its power of JUDICIAL REVIEW. But judicial review?even if it be regarded as a necessary inference from the fact of a written constitution?is not a part of the powers explicitly assigned to the Court by the Constitution. The Court made its boldest claim for the legitimacy of judicial legislation in COOPER V. AARON (1958). Justice WILLIAM J. BRENNAN, writing an opinion signed by all the members of the Court, outlined the basic constitutional argument for JUDICIAL SUPREMACY. Brennan recited "some basic constitutional propositions which are settled...

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