Justiciability, Remedies, and the Burger Court

Justiciability, Remedies, and the Burger Court

Description

Discussion of the Burger Court's seventy-odd decisions on “justiciability” issues—such as who has enough of an interest in the outcome of a case (“standing”) to invoke a federal court's power, and when the court should hear a case—has taken place at a very high level, if you measure it in decibels. Critics have characterized the decisions as cynical attempts to close the courthouse doors to those trying to enforce their constitutional rights. Defenders have hailed them as a welcome return to a principled vision of a restrained judiciary in a functioning democracy. In fact, the Burger Court's decisions on who can get into federal court and when are neither blueprints for majoritarian oppression nor expressions of judicial principle. Rather, they reflect a fundamental void in American political theory concerning the legitimacy and function of judicial review. There is nothing in our Constitution that explicitly authorizes courts to overrule other branches of government—state or federal—in the name of enforcing fidelity to the Constitution. Despite the fact that judicial review is the most distinctive and widely admired aspect of our political structure, we are two hundred years into the American experiment and we still haven't evolved a convincing theoretical explanation of where the Supreme Court's power comes from and how it should be used. When judicial review is discussed, we've tended to heed Bismarck's warning that lovers of sausages and law alike should not look too closely at what goes into the product. The orthodox apologia for judicial review flows from John Marshall's brilliant attempt to establish his power to torment President Jefferson in 1803. In Marbury v. Madison, Marshall projected the image of a Supreme Court justice as reluctant arbiter, an innocent bystander charged by Congress with responsibility for resolving controversies, but confronted by disputatious litigants asserting conflicting rules of law. When, Marshall argued, one proposed governing rule of law is established by the Constitution, while its competition is merely the creature of Congress or the President, the Court's duty must be to apply the constitutional rule as a matter of hierarchy. Judicial review, according to Marshall, is simply the accidental byproduct of a judge's duty to select the governing rule of law in order to resolve a dispute between litigants. Moreover, according to Marshall, a judge has no real choice in the matter, since, in resolving the dispute the judge merely plays out a hand dealt by someone else—Congress tells the judge to resolve the dispute and the Constitution supplies the governing rule of law. Marshall's opinion in Marbury shrewdly stressed those relatively rare provisions of the Constitution that are self-defining, like the requirement of two witnesses for a treason conviction. He carefully skirted the troublesome problems of how to deal with ambiguous constitutional phrases like “due process of law” and “privileges and immunities of citizenship” and, even, “abridgement of the freedom of speech.” Nothing in Marshall's opinion in Marbury explains why the Supreme Court's reading of the Constitution should take precedence over a contrary reading by Congress whenever a constitutional provision invites more than one plausible construction. Thus, while Marshall's elaborate apologia for judicial review in Marbury provides a formal justification for the phenomenon, it has never provided an intellectually satisfactory explanation of the reality inherent in virtually all constitutional adjudication, including Marbury itself, in which judges first breathe meaning into an open-textured provision of the Constitution and then enforce that meaning against the other branches of government. We have been willing to accept the Marbury explanation, even to lionize it, without looking too closely at its warts because judicial review has become so integral a part of our political structure and has worked so well as a check on majoritarian overreaching that any theory purporting to explain the process, even one as flawed as Marshall's, is preferable to no theory at all. When, however, judicial review is analyzed functionally rather than formalistically, every element of the Marbury explanation, which treats judges as passive figures forced by circumstances beyond their control to overturn the decisions of Congress as a necessary and essentially mechanical incident of a duty to resolve a dispute, breaks down. Nothing in the last one hundred years justifies painting Supreme Court justices as passive figures engaged in the mechanical process of playing out someone else's hand. Rather, American judges have creatively helped to determine the relationship between the individual and the state in ways that simply cannot be explained by reference to John Marshall's defense of judicial review. Instead of being passive figures, they have repeatedly played active roles in setting the national agenda. Instead of behaving like mechanistic robots, they have made law by choosing among a number of plausible readings of ambiguous constitutional phrases. Instead of acting solely, or even principally, as dispute resolvers, American judges, especially at the appellate level, have acted primarily as generators of behavioral norms for society at large.

Source Publication

The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986

Source Editors/Authors

Herman Schwartz

Publication Date

1987

Justiciability, Remedies, and the Burger Court

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