“beyond The Courtroom: Lesser-known Benefits Of Working With Lawyers” – The president and Congress can check the power of SCOTUS when they believe the court has exceeded its mandate. This may be the best way to save the court from itself.

Joshua Zeitz, the magazine’s contributing editor, is the author of Building the Great Society: Inside Lyndon Johnson’s White House. Follow him @joshuamzeitz.

“beyond The Courtroom: Lesser-known Benefits Of Working With Lawyers”

Last December, during oral argument in Dobbs v. In Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s a lot that’s not in the Constitution, including the fact that we have the last word. Marbury v. Madison. Nothing in the Constitution says that a court, the Supreme Court, is the final word on what the Constitution means. At that time it was completely novel. And yet what the Court did was to infer from the structure of the Constitution that that is what it was intended to do.”

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It was a remarkable observation. Sotomayor’s primary intention was to argue that rights and prerogatives do not need to be clearly defined in the Constitution in order to exist. The right to privacy—more specifically, the right to terminate a pregnancy—doesn’t appear anywhere in the document, but neither does the Supreme Court’s judicial review power. Both exist in a strong sense.

This is an observation worth revisiting. After issuing a wave of hotly contested and in some cases unpopular decisions, the Supreme Court has emerged in recent weeks as the most powerful and perhaps most feared branch of the federal government. Six conservative justices who enjoy life on the bench are fundamentally changing the nature of citizenship. Their power to do so is seemingly absolute and unchecked.

Liberal critics of today’s judicial activism are right to point out that the Supreme Court essentially embraced the right of judicial review—the right to declare legislative and executive actions unconstitutional—in 1803 in Marbury v. Madison. There is nothing in the Constitution that gives this power to the only elected branch of government. But it is equally true that the framers and original proponents of the Constitution intended, or at least believed, that the Court would exercise this prerogative. If context matters—and liberals usually argue that it does—the Court is the front-line arbiter of what is and is not constitutional.

But this does not make the judiciary more powerful than the executive and legislative branches. The President and Congress, acting jointly, may determine the size and authority of the Court. They can propose individual legislative measures or whole topics outside their scope of consideration. This has happened before, most notably in 1868, when Congress passed legislation stripping the Supreme Court of habeas corpus jurisdiction over federal records cases. In the majority decision, Chief Justice Salmon P. Chase recognized that the court’s jurisdiction is subject to congressional limitations. Subsequent courts, over the past century, have recognized the same.

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This is the brilliance of checks and balances. Just as Congress or the Supreme Court can check a renegade president, as they did during Watergate, the president and Congress can check an otherwise unfettered judiciary if they believe judges have exceeded their mandate.

In 1801, outgoing President John Adams appointed and Congress confirmed several “midnight” judicial nominees to stop incoming President Thomas Jefferson. John Marshall, then completing his term as Secretary of State, failed to provide official commissions to several of these justices. When Jefferson instructed his Secretary of State, James Madison, to withhold commissions to keep Adams’ nominees from the bench, one of the confirmed nominees, William Marbury, sued. The case reached the Supreme Court. In a decision handed down by Marshall, who was now chief justice, the court found that Madison had broken the law by withholding the commissions, but also refused to allow him to do so. At the same time, the court affirmed the right to strike down federal or state laws it deemed unconstitutional. This is how the concept of judicial review was born.

The critics are right about one thing: the Constitution is silent on judicial review. It states only that “the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time determine and ordain.” But many creators felt that some form of review was a given.

Judicial review as a concept was well established in 1787. The English courts have long handed down judgments upholding or striking down the laws – judgments which, taken together and with centuries of commentary, make up the unwritten constitution of England. It was certainly well established in the United States, even on the eve of the Marshall decision. Between the ratification of the Constitution and 1803, federal and state judges struck down at least 31 statutes on the grounds that they violated the federal or state constitutions. These decisions were generally made by tacit consent.

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We also know that many of the Constitution’s framers and most vocal proponents anticipated a role for the Supreme Court in judging the constitutionality of laws and actions. In The Federalist Papers 78, Alexander Hamilton put it this clearly, writing, “If it is said that the legislature is itself its own constitutional judge… it may be answered that this cannot be a natural presumption, wherever it is. collected from any particular provision of the Constitution. … It is much more rational to suppose that the courts were created as an intermediate body between the people and the legislature, in order, among other things, to keep the latter within their jurisdiction.”

Hamilton was not alone. At least 12 delegates to the Philadelphia Convention affirmed the Court’s role in reviewing legislative measures, although their interpretations of that authority differed. No delegate seems to have been strongly opposed in the opposite direction. Judicial review was already an established practice in state courts, which several delegates noted with approval. Madison praised the Rhode Island judges who “refused to execute an unconstitutional law.” Elbridge Gehry observed that state judges routinely “strike down laws as aggressive. [State] Constitution”.

When other delegates suggested that judges also be given express power to veto legislation, Gehry and his fellow Massachusetts delegate, Rufus King, objected, noting that the courts would have “sufficient checks. Encroachment on one’s own department by revealing the laws, which implied the authority to decide their constitutionality.” Arguing to the contrary, James Wilson advocated additional controls to block bad laws, noting that “[l]justice may be unjust, may be unreasonable, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the judges in refusing to act.”

Luther Martin, a delegate from Maryland, argued that “as to the constitutionality of the laws, the question will be before the judges in a proper formal manner. In this character, they have a negative attitude towards laws. “

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Hamilton, arguably the most thorough proponent of judicial review, similarly wrote that “the interpretation of laws is the proper and peculiar province of the courts. The Constitution literally is and must be treated by judges as the fundamental law. Therefore, it belongs to them to determine its meaning and the meaning of any specific act derived from the legislature”.

The men gathered in Philadelphia largely agreed that the courts would be the arbiters of what was, and was not, constitutional. So did the delegates to the state-level conventions that ratified the new constitution. Delegates at seven such meetings discussed the concept of judicial review at least 25 times. In addition, at least 74 Federalist pamphlets, published in 12 of the 13 states, asserted the prerogative of the courts to strike down unconstitutional laws.

It is clear from the record that the men who wrote the Constitution intended the Supreme Court and the lower federal courts to exercise a constitutional veto over acts of Congress and the states.

Deeply embedded in the genius of the Constitution are checks and balances. The president can veto legislation; Congress can override the veto. Courts can invalidate an act of Congress or the President. And the executive and legislative branches enjoy a check against the judiciary.

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The Constitution required the creation of a Supreme Court and lower federal courts. It was up to Congress and the President to decide what form the judiciary would take. They did so in the Judiciary Act of 1789, which created circuit courts, circuit (or appeal) courts, and a six-judge Supreme Court. Over the years, Congress, with presidential approval, has increased and decreased the number of justices on the Supreme Court, created and changed the jurisdiction of circuit and district courts, and changed the number of federal judges.

By now, it is common knowledge that Congress can change the size, and thus the composition, of the Supreme Court through simple legislation. Court packing, as it has been called since 1937, when President Franklin D. Roosevelt tried unsuccessfully to bypass a hostile court.

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