Judicial review is unsettling

Maly recently retired from Helena Civic Television, a small non-profit that pioneered televised gavel-to-gavel, unedited coverage of the Montana Legislature as well as Executive branch activities and oral arguments before the state Supreme Court after serving for a decade as a Research Analyst on the Montana Legislature’s nonpartisan staff. He earned an M.A. in International Relations and Canadian Studies at the Johns Hopkins University School of Advanced International Studies and a B.A. in International Affairs at the University of Colorado (Boulder).

This is an exciting and challenging time to be an advocate for civics education in America. Middle and high school scores on civics are at a historic low at a time of deepening political polarization amongst American voters, propelling public and private sector initiatives to boost learning about this country’s history and governing institutions.

One of the most taken-for-granted principles of democratic governance is the role of courts in interpreting statutes in relation to written constitutions. It’s called judicial review. In the United States, judicial review has been “the law of the land” since Marbury v. Madison, a landmark Supreme Court decision dating to 1803, early in the days of our republic. The particulars of the case are complicated, and dull. What’s crucial is that ever since then, the Supreme Court’s role in determining constitutionality has been regarded as settled law.

In Montana’s most recent legislative session, which concluded on May 5, a subgroup of the Republican supermajority attempted to deliver a provocative civics lesson to fellow legislators, the state’s federal delegation, Montana citizens, and the public at large. Senate Joint Resolution 15 (SJ 15) purported to question the legitimacy of judicial review in the United States, labeling it a myth. “The courts got it wrong,” proclaimed state Senator Tom McGillvray, the measure’s chief sponsor, in testimony to the Senate and House Judiciary Committees. On the House floor, Republican Rep. Ed Butcher (a retired history teacher) chimed in: “The Supreme Court issues advisory opinions!” He and others insisted forcefully and repeatedly that Chief Justice John Marshall never explicitly asserted that the U.S. Supreme Court shall have the final word on the constitutionality of a given statute. It’s a plain and unsettling fact that judicial review is not expressly provided for in the Constitution.

Marshall held that the Supreme Court’s duty to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution. McGillvray and others point out that state legislators and the governor take the same oath, and thus are in a coequal position with judges. “We don’t want an imperial legislature, a dictatorial executive, or a sovereign judiciary,” the senator asserted in committee. SJ 15 states that, “The Legislature and the executive have equal roles in determining the constitutionality of any statute or decision.”

Many Montana Republicans are quick to resort to arguments about the intent of the Founders. They want to be in sync with self-described “originalists,” and in tune with the rant against judges “legislating from the bench.” That position doesn’t work in this case. The concept of judicial review was familiar to the states and the people prior to the Constitutional Convention.

Delegates to the convention as well as several authors of the Federalist Papers wrote about it. Here’s James Madison: “A law violating a constitution established by the people themselves, would be considered by the judges as null and void.” Hamilton delves further into detail: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.” John Marshall seems clear enough on the matter: Because the constitution “is a superior paramount law, unchangeable by ordinary means, a legislative act contrary to the constitution is not law.” Paraphrasing Marshall, when a legislature passes a law that is repugnant to the constitution, the courts are not only not bound by it, but have the privileged duty to overturn it.

You’d think all this and more, including over 200 years of judicial practice, would disabuse the proponents of SJ15. The authority for judicial review in the U.S. has been repeatedly and consistently inferred from the structure, provisions (Articles III and VI) and history of the Constitution.

Outside the legislative body, the proposal met with scathing criticism. Darrell Ehrlick, publisher of The Daily Montanan likened the resolution to a fantasy world, a “dim witted piece of revisionist history.” He characterized the lawmakers’ grasp of civics as embarrassing and went further: “SJ15’s logical end, if it had any binding effect, would be a descent into chaos, where three different branches of government might all interpret a law differently, resulting in a stand-off or a gunfight.”*

Let’s face it. SJ 15 and other such attacks on judicial independence are not devoid of theoretically reasonable content. The power of appointed judges to overturn statutes legitimately passed in democratically elected legislative bodies does seem to contradict the principle of popular sovereignty, expressed in the preamble to the U.S. and Montana constitutions, respectively. People elected to legislate and administer laws are accountable to the public. High-level federal judges are political appointees vetted by the U.S. Senate. Once in office, they can behave and make decisions as they will, like tyrants.

The politicization of judicial processes is diminishing public trust in the U.S. Supreme Court and other elements of the judicial system. Fewer and fewer Americans believe that the courts deliver impartial justice. Critics right and left complain about political capture of the judiciary through hyper partisan appointments. The courts have no army or police force to enforce their rulings, the legitimacy of which depends on public support. Challenging judicial review in legislation can further undermine citizens’ confidence in the efficacy of our constitutional order.

In the end, SJ15 was defeated on the House floor by a vote of 44 for the measure, 55 against. Republican State Rep. Bill Mercer, another one of the few attorneys in Montana’s citizen legislature, made the case for a No vote. Absent an authoritative decision that is regarded as legitimate, Mercer asserted, when a question of constitutional interpretation arises that pits political parties and/or executive and legislative branches against each other, the courts must have the last word. Otherwise, chaos will ensue. Principled pragmatism rather than specific Constitutional language won the day. Madison v. Marbury still stands as the law of the land--for now.