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J, Judicial Review

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Judicial Review

is a distinctive power associated with the Supreme Court that is nowhere specifically mentioned in the Constitution. Chief Justice John *Marshall in *Marbury v. Madison (1803) asserted the major principle on which it rests by observing: “[i]t is emphatically the province and duty of the judicial department to say what the law is” (p. 177). Through judicial review the Court most dramatically asserts its authority to determine what the Constitution means.

The power of the Court to review the law extends in two directions. The first involves decisions by other branches of the federal government. These cases include actions taken by the executive branch, like the decision by President Richard *Nixon to withhold taped records of conversations in the White House, and statutes passed by Congress, such as the Missouri Compromise, which excluded *slavery from northern portions of the Louisiana Purchase territory. Judicial review also expresses the authority of the federal courts over state laws and judicial decisions that involve the federal Constitution. Whether involving federal or state matters, the practice of judicial review has been marked by dynamic expansion and persistent controversy. Judicial power has been consolidated both in the superiority of the federal judiciary over the states and of the Supreme Court over the other branches of the federal government. The authority of the federal government that became centralized after the *Civil War is one of the pillars of judicial review and vice versa. Justice Thurgood *Marshall, in commenting on the constitutional bicentennial celebration of 1987, said that the Constitution did not survive the Civil War, but was remade following that conflict. Since the late nineteenth century, power has come to be increasingly centered in a Supreme Court that would be unrecognizable to the founding generation. Not only do the justices now have a home and no *circuit riding responsibilities, but the power to subject the acts of other branches of the federal government and the states to judicial *scrutiny is widely accepted. Thus, judicial review is a dynamic institution that expands with the federal authority over the nation.


Scholars trace the origins of judicial review to Dr. Bonham’s Case (1610). Sir Edward Coke, of England’s Court of Common Pleas, stated that “when an act of parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void” (p. 118a). Coke believed that the common lawyer possessed “artificial reason of the law” and that this capacity elevated him to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed it above politics.

In 1761 the first significant American elaboration of Bonham’s Case occurred. James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham’s Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. Although colonial courts resisted such radical assertions, these claims nonetheless made the idea of judicial review an important feature of American constitutionalism (see fundamental rights).

After the Revolution, the framers of the Constitution debated, and then rejected, an aspect of judicial review, the judicial veto. Although they were concerned about consolidated power in the federal government and the authority of that government over the states, the framers approved the Supremacy Clause of Article VI resolving the latter issue and leaving the former to evolve over the years. They rejected explicit judicial authority over Congress as proposed in the Virginia Plan. James *Madison, for example, reiterated the authority of fundamental law, but he refused to acknowledge the authority of the judiciary over the other branches of government. Prominent leaders of the founding (p. 537) generation and future Supreme Court justices James *Wilson of Pennsylvania, Oliver *Ellsworth of Connecticut, and John Marshall of Virginia argued in their state ratifying conventions that the national government would be limited by the judicial check.

In *The Federalist Papers, Alexander *Hamilton endorsed the idea of judicial review and provided one of its most compelling ideological foundations. Hamilton wrote that “whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. ... [T]he judiciary … has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment” (no. 78). Thus, with such reassurances, Hamilton defended the practice of judicial review.

Since the origins of constitutional government in America, judicial review has followed Hamilton’s thinking that judges have a special capacity and responsibility to expound the meaning of the Constitution. Attempts by *state courts in the 1780s to assert a power over other political institutions either were ignored or brought forth denunciations from the legislature, often with threats to remove the judges. Richard Dobbs Spaight of North Carolina asked “if the judiciary acted as a check on the legislature, then who was to act as a check on the judiciary?” Like the national judiciary, which was also hotly contested in the last years of the eighteenth century, the practice of judicial review was in its formative period.

As a Supreme Court justice, James *Iredell, who had been a proponent of judicial review during the Constitutional Convention, developed an institutional foundation for judicial power in his seriatim opinion in *Calder v. Bull (1798). He argued against grounding decisions of the Court in the laws of nature. Instead, Iredell proposed that the only basis for invalidating a statute that had been erected by “the legislature of the Union, or the legislature of any member of the Union” was that it violated a provision of the written Constitution in a “clear and urgent case” (p. 399).

The Republican party of Thomas *Jefferson challenged Federalist dominance of the judiciary. Jefferson went so far as to predict in a letter to Abigail Adams of 1804 that “The efforts of Federalism to exalt the Judiciary over the Executive and Legislative and to give that favorite department a political character and influence … will probably terminate in the degradation and disgrace of the judiciary.” Jefferson’s prognostications proved faulty in several respects.

Early Decisions.

“If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. … They would declare it void,” insisted future chief justice John Marshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practical meaning to these words in the classic case of Marbury v. Madison (1803), in which he securely rooted the modern doctrinal source of judicial review. Marshall himself contributed to the chain of events that culminated in Marbury. Shortly before his appointment to the Court in 1801, Marshall, as secretary of state, failed to deliver a commission as justice of the peace in the District of Columbia to William Marbury, a loyal Federalist. Marbury requested that James Madison, the secretary of state under newly elected president Thomas Jefferson, issue the commission. Madison refused, and Marbury went directly to the Supreme Court. He claimed that under section 13 of the *Judiciary Act of 1789 the Court had the original jurisdiction to issue writs of *mandamus. Marbury wanted the Federalist-dominated Supreme Court to order the Jeffersonian Republican-controlled executive branch to deliver his commission.

Marbury’s case threatened to plunge the justices into a political thicket. They readily calculated the furor that a writ of mandamus issued against Jefferson’s administration would stir at a time when more radical Republicans were bent on stripping the Court of its power. At best, the president might have simply ordered Madison to disregard the Court; at worst, he might have lent even more of his prestige to efforts already under way by the radical wing of his party in Congress to limit sharply the Court’s power.

Marshall appreciated these exigencies. The first part of his opinion sustained Marbury’s claim on the basis of the *vested-rights doctrine, an out-growth of the natural-rights philosophy of the Revolution that held that certain rights were so fundamental that they were beyond government control. The Court, with its responsibility to preserve fundamental law, was obligated to protect such rights. Distinguishing between political and other rights, Marshall disallowed judicial concern with the former on the grounds that the protection of political rights belonged instead to the popularly accountable political branches. The Court, Marshall said, drew its authority from the well of popular sovereignty, but it could exercise that power only in settling controversies involving fundamental law rather than politics.

What Marshall gave to Marbury in the first half of the opinion he took away in the second. (p. 538) Although a writ of mandamus was in order, the Court could not issue it. The chief justice arrived at this conclusion through a close textual reading of section 13 of the 1789 act and also *Article III of the Constitution. Congress might subtract from the Court’s original jurisdiction, but Congress could not add to it—as section 13 did—because Article III had already established the Court’s jurisdiction fully. With arguments reminiscent of state court implementation of judicial review during the 1780s, Marshall worried that an expansion of the Court’s jurisdiction would thrust the justices into political disputes that the political branches themselves could not settle. Such involvement, he concluded, would prevent the Court from acting primarily as the legal institution he believed the departmental theory required.

Because of judicial review the justices would not enforce an unconstitutional act. Through his opinion in Marbury, Marshall simultaneously limited and expanded the Court’s power; less power became more. The chief justice accepted the inherent limitation placed on the scope of judicial power, but he boldly asserted that the Court had a responsibility to say what the Constitution meant.

Marbury was a problematic constitutional case in a difficult political setting. Marshall’s opinion was defensive; it sought to keep the Court free of political pressures by limiting its role to clearly legal as opposed to political issues. Marshall did not exercise judicial discretion in the modern sense of the word. Interpreting law was not synonymous with making it. Marbury did not receive his commission, but Marshall used the occasion to pronounce the essential elements of judicial review.

Although some nineteenth-century state court decisions claimed no more for judicial authority than did Marbury, most later instances of judicial review asserted a broader scope of judicial power. Marshall’s decisions involving the constitutionality of state legislation proved considerably more controversial in time than Marbury. In a series of major decisions between 1810 and 1824, Marshall resorted to *natural law, the *Contracts Clause, and the *commerce power, among others, to void state statutes, while simultaneously narrowing the reach of the *Eleventh Amendment. In *Fletcher v. Peck (1810), Marshall relied both on natural-law formulations drawn from Calder and on the contracts clause of Article I, section 10 of the Constitution to strike down a state statute interfering with title to real *property.

But nine years later, in *Dartmouth College v. Woodward, Marshall abandoned the natural-law leg of his Fletcher reasoning and relied on the Contracts Clause alone to thwart a state’s attempt to modify the charter of a *corporation. The Dartmouth College decision is regarded as an essential step in the emergence of the private, profit-making corporation as a legal entity in the United States (see private corporation charters).

Marshall limited a state’s power to revoke a legislatively granted tax exemption in New Jersey v. Wilson (1812), a particularly controversial holding because it cut so close to sovereign state powers (see state sovereignty and states’ rights). He extended the reach of judicial power over state taxation in *McCulloch v. Maryland (1819), arguably his greatest and most influential opinion, holding that a state could not tax the Bank of the United States or any other instrumentality of the federal government. McCulloch provoked a storm of controversy, most of it emanating from Virginia, but that did not deter Marshall from constricting the Eleventh Amendment in *Osborn v. Bank of the United States (1824) to prohibit the state of Ohio from taxing a branch of the Bank in violation of the McCulloch holding.

The decision that most antagonized the Virginians involved an assertion of the Court’s authority not over state legislation but over a state supreme court. *Martin v. Hunter’s Lessee (1816), an opinion written by Justice Joseph *Story after Marshall had to excuse himself for personal interest in the subject matter of the litigation, asserted the power of the United States Supreme Court over the politically sensitive subject of state confiscation of Loyalist property during the War for American Independence. Despite the fervid opposition of Chief Judge Spencer Roane of the Virginia Court of Appeals, who denounced Martin as a fatal incursion on state sovereignty, Marshall again reversed a Virginia holding in *Cohens v. Virginia (1821) in a ringing vindication of the Supremacy Clause of Article VI.

*Gibbons v. Ogden (1824) provided the Court its first opportunity to construe the Commerce Clause of Article I, section 8, which Marshall used to void a state monopoly of river transportation. Although the Contracts Clause remained the Court’s most potent weapon of discipline over state legislation throughout the nineteenth century, the Commerce Clause was to emerge in the twentieth as the principal source of federal legislative authority, and Marshall’s expansive reading set it off on its career as the basis of vast federal regulatory power over the economy.

President Thomas Jefferson, responding to Marshall’s opinion in Marbury, composed “Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution of Aaron *Burr for treason. Jefferson argued against citing Marbury and proposed “to have [the decision] denied to be law.” He went on to hold “the three great branches of the government should be coordinate, and independent of each other.” Jefferson believed each (p. 539) branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court’s judgment was superior to that of the other branches. His efforts on behalf of repeal of the *Judiciary Act of 1801 and the first judicial *impeachments supported the doctrine of “co-ordinate construction,” whereby each branch of the federal government interprets the Constitution for itself.

The Pennsylvania case of Eakin v. Raub (1825) provided criticism of Marbury from the state’s chief judge, John Gibson. His dissent in that case is viewed as the best exposition of legislative supremacy in early American history. The case dealt with judicial review in Pennsylvania state courts but also addressed questions of federal power raised in Marbury. Gibson argued that “[i]f the judiciary will inquire into anything besides the form of enactment, where shall it stop?” He went on to object, “That the judiciary is of superior rank, has never been pretended, although it has been said to be coordinate” (p. 330). Gibson’s reading of the Constitution led him to observe, “[H]ad it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt” (p. 331). To Gibson, the written Constitution was accessible to the public and it was the public’s ability to hold the legislature accountable to the text that provided the ultimate check on the excesses of government.

The Court’s power of review over federal legislation lay dormant for a half century after Marbury, despite the Court’s activism with respect to state legislation. Chief Justice Roger B. *Taney reassumed the power in *Scott v. Sandford (1857) by invalidating the Missouri Compromise of 1820, a federal statute that prohibited the spread of slavery into the Louisiana Purchase territory north of Missouri. Taney’s opinion would have been unpopular enough in the North even without the complication of expanded Supreme Court power over politically sensitive issues. Yet the violent northern political reaction to Taney’s provocative decision did not produce a sustained assault on the Court as an institution, no matter how fervently northern political leaders assailed Dred Scott and its author. Late in his opinion, Taney also claimed that the slavery restriction violated the Due Process Clause of the *Fifth Amendment. But he did not pursue the point there, and Dred Scott was soon overtaken by events, so the potential of the dictum was not realized for over a generation.

President Abraham *Lincoln’s first inaugural address (1861) indicates the continuing resistance to rule by the judiciary in the middle of the nineteenth century. In this address, Lincoln sought to reassure the southern states that they would continue to be governed by law rather than fiat. His discussion of the law upon assuming the office of the presidency included extended treatment of his role as interpreter. “I take the official oath today, with no mental reservations, and with no purpose to construe the Constitution or laws, by any hypercritical rules.” Grounding his analysis on the concept of the perpetuity of the union, Lincoln engaged in a disquisition on the nature and interpretation of the Constitution. Union came first; the purpose of the Constitution was to form a more perfect one. Lincoln acknowledged that decisions of the Supreme Court were binding on the parties involved and that they were also “entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.” But he also insisted that “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” Lincoln’s concluding reaffirmation of popular sovereignty continues to influence the meaning of judicial review even today.

Practice Emerges.

The Supreme Court of the late nineteenth century realized the full potential of judicial review over both federal and state legislation. Marshall had asserted it, but after 1824 he was reduced to seeing its reach weaken in the face of political assault on its use against state legislation. Taney’s respect for state authority avoided that clash, but his resort to the power to overturn federal legislation proved abortive in the Dred Scott case. While the Supreme Court did not write on a clean slate after the Civil War, neither did its innovative decisions expanding judicial review occupy a crowded field of *precedent. Thus the Court’s creation of the doctrines of substantive *due process and freedom of *contract were innovations far in advance of anything adopted by the justices in the antebellum era.

A five-justice majority of the Court relied on traditional notions of *police power to uphold state regulatory authority (in this case, the grant of a monopoly over butchering activity in New Orleans) in the *Slaughterhouse Cases of 1873. Though the Court strongly reaffirmed the role of the police power just four years afterward in *Munn v. Illinois (1877), the dissent of Justices Stephen J. *Field and Joseph P. *Bradley in Slaughterhouse laid the basis for the sweeping triumph of substantive due process within two decades. Each insisted that any individual had a right to enter into contracts (including employment and business relationships, such as slaughtering), and that this right was protected by the federal Constitution. Field found that right (p. 540) primarily in the *Privileges or Immunities Clause of the *Fourteenth Amendment, Bradley in the Due Process Clause of that amendment. Bradley’s view prevailed in the 1890s, first somewhat obscurely in *Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890) and then triumphantly in *Allgeyer v. Louisiana (1897), where the Due Process Clause protected business contracts from legislative regulation.

This trend culminated twice before the *New Deal, first in *Lochner v. New York (1905), where the Court by a 5-to-4 decision invalidated a New York statute prohibiting bakers from working more than sixty hours a week, and then after the war in *Adkins v. Children’s Hospital (1923), when the Court, again by a 5-to-4 margin, struck down a state minimum-wage law for women. In both of these major decisions, the majority found in the Fourteenth Amendment’s Due Process Clause a substantive restraint on state legislative policy making. The Court reached comparable results for federal legislative authority in *Adair v. United States (1908), which relied in part on the Fifth Amendment’s Due Process Clause. Other decisions that curbed federal power to regulate the economy drew more on arguments based on concepts of federalism than from substantive due process. The principal specimens of these were the two child-labor decisions: *Hammer v. Dagenhart (1918) (the Commerce Clause) and *Bailey v. Drexel Furniture (1922) (the Tax Clause).

Yet the Court was not consistent in its substantive due process approach, for it sustained far more legislation, state and federal, than it struck down. Major examples of decisions sustaining economic regulatory legislation included *Holden v. Hardy (1898), upholding a Utah maximum-hours law for men in mining and smelting industries; *Muller v. Oregon (1908), upholding maximum-hours legislation for women; and various decisions sustaining federal authority under the commerce and tax clauses. *World War I gave a short-lived impetus to such results, especially those involving federal power. Thus, by the 1930s the Court had created two inconsistent lines of precedent, the one sustaining, and the other rejecting, the exercise of legislative power at the state and federal levels.

This conflict came to a head in the New Deal. Between 1934 and 1937, the Court first accepted state and federal regulatory efforts to contend with the economic crises of the Depression, in such leading cases as *Home Building and Loan Association v. Blaisdell (1934) and *Nebbia v. New York (1934) (state authority) and *Ashwander v. TVA (1936) (federal). But the mind-set of substantive due process shortly triumphed, and in a series of decisions that shocked the Roosevelt administration, the Court overturned federal legislative initiatives (e.g., *Schechter Poultry v. United States, 1935, involving the National Recovery Act; and United States v. *Butler, 1936, involving regulation of agriculture), as well as state legislation: *Morehead v. New York ex rel. Tipaldo (1936, involving state minimum-wage legislation). By 1937, a five-justice majority of the Court seemed to have embraced the discredited Lochner and Adkins precedents in an effort to frustrate all legislative attempts to cope with the Depression.

President Franklin D. *Roosevelt responded with the *court-packing plan, an attempt to enlarge the Supreme Court and *lower federal courts with FDR appointees more sympathetic to an activist legislative program. Though he failed in this effort, he won the larger campaign of forcing the Court to reverse substantive economic due process precedents dating back to the Slaughterhouse dissents. The Court was now free to embark on a new period of judicial activism, liberated from the formalist mentality that produced Lochner and its progeny.

Though the Court abandoned substantive due process in questions of economic regulation, the concept itself was not defunct, nor had the Court forsaken activism. Rather, it diverted its concern over legislative power from economic matters to problems of civil liberties and civil rights. Justice Harlan Fiske *Stone enunciated this new direction obscurely, in *Footnote Four of United States v. Carolene Products Co. (1938) stating that the Court would now scrutinize three categories of issues: “where legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments”; “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”, and “statutes directed at particular religious … or national … or racial minorities” (p. 153). The Court lost no time in putting that agenda into effect.

The two substantive doctrinal contributions that characterize the growth period for the modern Court are acceptance of economic regulation and the nationalization of civil liberties. Agency cases like those validating the National Labor Relations Board and social welfare decisions upholding Social Security solidified the federal administrative apparatus as the Court turned its attention elsewhere. Civil liberties protection was an extended consequence, a new preoccupation that represented, in the words of legal scholars, an “idea of progress.”

The desegregation decision, *Brown v. Board of Education (1954), criminal procedure holdings like *Mapp v. Ohio (1961), and the *abortion decision in *Roe v. Wade (1973) epitomize the most recent period of *judicial activism. Brown (p. 541) was a bold restatement of the concept of equality, resulting from America’s repudiation of racial discrimination. In Roe, the standard of equality applied to abortion accommodated women’s expanded roles in the marketplace. All of these decisions mobilized the institutional authority of the Court and the authority of federal over state law to advance the political idea of equal treatment.

While the court-packing plan of the New Deal forced a major diversion in the Court’s use of judicial review, United States v. *Nixon (1974) affirmed the Supreme Court’s power to stand against the other branches of the government. This decision, in which the Court ordered the president to turn over politically damaging materials, came at the height of a dramatic confrontation between Congress and the presidency. The political context in which the decision was reached boosted the authority of the Court in American political culture, because the justices ordered the president to act against his own interests. The president obeyed. This decision was widely heralded as saving the country from executive tyranny and was accepted as an assertion of the authority of the Supreme Court as the “final arbiter” in constitutional matters.

Modern Practice.

Mid-twentieth-century judicial review emphasizes the Supreme Court’s predominance over the executive and the legislative branches of the federal government and the states in matters of constitutional interpretation. The power derives from the justices’ expertise in interpreting the Constitution and its supremacy as law. The language of law is constitutive because the various communities that compose the American nation accept its conventions. In constitutional law, judicial review is a function of professional and seemingly apolitical practices dating to John Marshall’s opinions. The lawyers who speak to the courts today and the lawyers who sit on the bench have developed a special way of speaking about the power of judges, so much so that some observers have concluded that the Constitution is “what the justices say it is.”

On the occasion of the two-hundredth anniversary of the Constitution, Americans had come to accept judicial review at the same time that the controversy over its origins persisted. Solicitor General Kenneth W. Starr observed that “by virtue of the status of the Constitution as supreme law” the American system would “include the power of judicial review.” At the same time, the justices needed a power that brought them status in the present day far beyond what they ever had before. Chief Justice William H. *Rehnquist has noted that “We … must realize that our work has no more claim to infallibility than that of our predecessors.” He pointed out that the statement “on the front of this building—Equal Justice Under Law—describes a quest, not an institution.”

Recently the Court has shifted its attention away from civil liberties to *separation of powers, an area in which the authority of judges is grounded in the expectations of the founders and the canons of constitutional philosophy. The erosion of the *political question doctrine and the political content of some recent decisions coexist with continued assertions that judges are not simply politicians behind, the bench. Even as the Court attempts to establish the boundary of its legal authority, the justices continue to expand the bases of judicial review.

With regard to political questions, the evolution of the modern Supreme Court has been away from traditional legal forms associated with the judiciary in favor of informality and bureaucracy. National authority over the Constitution is based more on the Supreme Court’s position at the helm of the national judiciary than any uniquely legal qualities. The political question doctrine is a device for transferring the responsibility for a question or decision to another branch of government, usually Congress. In the 1960s, the justices entered one of the last remaining spheres that had been closed off by the political question doctrine in the reapportionment decision *Baker v. Carr (1962). According to some scholars, questions became political simply because judges refused to decide them (see reapportionment cases).

The Court continues to move in that direction, as indicated by *Davis v. Bandemer (1986), the political *gerrymandering case. Although the Court did not find political gerrymandering to be discriminatory, the clear implication was that the justices might soon make such a finding. Thus there is little in the way of substantive questions that separates judges from other actors in the political process.

Yet other cases, such as *Webster v. Reproductive Health Services (1989), provide evidence of the new limits of judicial review. In the matter of judicial authority, the dissenting opinion by Justice Antonin *Scalia portrayed vividly the need for the Court to protect itself from immersion in the political arena. “The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not judicial” (p. 532).

Nomination hearings for appointment to the Supreme Court have highlighted the inevitable tension in judicial review between law and politics. Hearings on Sandra Day *O’Connor’s nomination in 1981 attempted to draw out the (p. 542) nominee on the issue of abortion. She stated that it was facts, law, and constitutional principles that would guide her decisions, not her personal views. Extensive questioning of nominee Robert *Bork demonstrated that politics resides in the exercise of judicial power. In response to questions about his agenda, which often revolved around judicial review, Bork proposed a jurisprudence of *“original intent” that would affirm the importance of the constitutional text in guiding a justice. His failure to be confirmed was, in part, a failure to convince the Senate on this issue.

The current debate over the legitimacy of the Supreme Court’s use of judicial review is only the most recent phase of a historical dialogue essential to the maintenance of the Constitution. The Court will continue to exercise judicial review; the constitutional order demands as much. In this sense, the lessons taught by the history of the Supreme Court and judicial review have nothing to do with the framers’ intentions, either of implementation or scope. Rather, the past speaks to the present in another way. Americans can—and will—debate the legitimacy of judicial review, but they should know that dialogue nourishes their distinctive experiment in constitutionalism. Americans have never taken judicial review for granted, and they never can.

See also impact of court decisions; implied powers; judicial power and jurisdiction; judicial self-restraint.

Alexander Bickel, The Supreme Court and the Idea of Progress (1970). John Brigham, The Cult of the Court (1987). Edward S. Corwin, The “Higher Law” Backgrounds of American Constitutional Law (1928). Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971). Louis Fisher, Constitutional Structures (1990). Kermit L. Hall, The Supreme Court and Judicial Review in American History (1985). Catharine MacKinnon, Toward a Feminist Theory of the State (1989). Walter Murphy, William Harris, and James Fleming, American Constitutional Interpretation (1986). Elliot E. Slotnick, “The Place of Judicial Review in the American Tradition,” Judicature (1987): 68–79.

John Brigham