Judicial Review and Democracy

• Author: Robert H. Bork
• Pages: 1478-1481

Page 1478

The American ideal of democracy lives in constant tension with the American ideal of JUDICIAL REVIEW in the service of individual liberties. It is a tension that sometimes erupts in crisis. THOMAS JEFFERSON planned a campaign of IMPEACHMENTS to rid the bench, and particularly the Supreme Court, of Federalist judges. The campaign collapsed when the impeachment of Associate Justice SAMUEL CHASE failed in the Senate. FRANKLIN D. ROOSEVELT, frustrated by a Court majority that repeatedly struck down New Deal economic measures, tried to "pack" the Court with additional Justices. That effort was defeated in Congress, though the attempt may have persuaded some Justices to alter their behavior. In recent years there have been movements in Congress to deprive federal courts of JURISDICTION over cases involving such matters as abortion, SCHOOL BUSING, and school prayer (see RELIGION IN PUBLIC SCHOOLS)?topics on which the Court's decisions have angered strong and articulate constituencies.

The problem is the resolution of what Robert Dahl called the Madisonian dilemma. The United States was founded as a Madisonian system, one that allows majorities to govern wide and important areas of life simply because they are majorities, but that also holds that individuals have some freedoms that must be exempt from majority control. The dilemma is that neither the majority nor the minority can be trusted to define the proper spheres of democratic authority and individual liberty.

It is not at all clear that the Founders envisaged a leading role for the judiciary in the resolution of this dilemma, for they thought of the third branch as relatively insignificant. Over time, however, Americans have come to assume that the definition of majority power and minority freedom is primarily the function of the judiciary, most particularly the function of the Supreme Court. This assumption places a great responsibility upon constitutional theory. America's basic method of policymaking is majoritarian. Thus, to justify exercise of a power to set at naught the considered decisions of elected representatives, judges must achieve, in ALEXANDER BICKEL'S phrase, "a rigorous general accord between JUDICIAL SUPREMACY and democratic theory, so that the boundaries of the one could be described with some precision in terms of the other." At one time, an accord was based on the understanding that judges followed the intentions of the Framers and ratifiers of the Constitution, a legal document enacted by majorities, though subject to alteration only by supermajorities. A conflict between democracy and judicial review did not arise because the respective areas of each were specified and intended to be inviolate. Though this obedience to original intent was occasionally more pretense than reality, the accord was achieved in theory, and that theory stated an ideal to which courts were expected to conform. That is no longer so. Many judges and scholars now believe that the courts' obligations to intent are so highly generalized and remote that judges are in fact free

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to create the Constitution they think appropriate to today's society. The result is that the accord no longer stands even theoretically. The increasing perception that this is so raises the question of what elected officials can do to reclaim authority they regard as wrongfully taken by the judiciary.

There appear to be two possible responses to a judiciary that has overstepped the limits of its legitimate authority. One is political, the other intellectual. It seems tolerably clear that political responses are of limited usefulness, at least in the short run. Impeachment and COURT-PACKING, having failed in the past, are unlikely to be resorted to again. Amending the Constitution to correct judicial over-reaching is such a difficult and laborious process (requiring either two-thirds of both houses of Congress or an application for a convention by the legislatures of two-thirds of the states, followed, in either case, by ratification by three-fourths of the states) that it is of little practical assistance. It is sometimes proposed that Congress deal with the problem by removing federal court jurisdiction, using the exceptions clause of Article III of the Constitution in the case of the Supreme Court. The constitutionality of this approach has been much debated, but, in any case, it will often prove not...