The Legal Professoriate's Case Against Judicial Review: Why the Academy Is Wrong, and Why It Matters

By SCOTT GERBER

Wednesday, Aug. 30, 2006

Last term the U.S. Supreme Court handed the nation's law schools a major defeat when it unanimously held in Rumsfeld v. Forum for Academic Institutional Rights, Inc. that the schools and their faculties could not bar the military from recruiting on their campuses and remain eligible to receive hundreds of millions of dollars in federal funds. (It seems the law schools needed the Supreme Court to remind them that "you can't have your cake and eat it, too.")

Three terms earlier, a sharply divided Court held in Grutter v. Bollinger and Gratz v. Bollinger that law schools and other colleges may consider the race of applicants as a factor in admissions decisions, provided that it isn't used too mechanically and that all applicants are evaluated on an individualized basis. Grutter/Gratz wasn't the total victory for which the academy was hoping -- the Court went out of its way to say that affirmative action admissions programs can't be continued in perpetuity -- but it was a major win nonetheless.

Except for hot button issues such as those involved in Rumsfeld and Grutter/Gratz, it's probably fair to say that only law professors themselves know, and care, about most other policy debates in the nation's law schools. However, there is a major debate currently underway that those who work outside of the ivory tower should care about, and probably don't know about.

It's the debate over whether judicial review in the United States should be eliminated, or at least drastically curtailed.

The Legal Academy's Case Against Judicial Review

For readers who haven't revisited Marbury v. Madison (1803) since their law school days, judicial review may be defined as the power of a court to hold unconstitutional and hence unenforceable any law, any official action based on a law, or any other action by a public official deemed in conflict with the Constitution of the United States.

Professor Cass R. Sunstein of the University of Chicago Law School and Professor Mark V. Tushnet of Harvard Law School insist that judicial review is bad policy. Dean Larry D. Kramer of Stanford Law School and Dean William M. Treanor of Fordham Law School maintain that judicial review, at least as practiced and understood by the modern federal judiciary, is without historical foundation. And Professor Jeremy Waldron of New York University School of Law claims it's philosophically indefensible.

The combined output of these influential legal academics on the question of whether judicial review should be limited, or eliminated, amounts to upwards of a thousand pages. What follows is, by necessity, a summary of their respective arguments.

In One Case at a Time, published in 1999, Professor Sunstein argues for what he terms "judicial minimalism," a theory of judicial review that limits the Court to the specific questions posed by a particular case and discourages it from handing down broad rulings with sweeping social consequences. Sunstein insists that the broad questions -- whether abortion should be legal, the constitutionality of affirmative action, and so on -- should be left for the people to decide through the process of "deliberative democracy."

Professor Tushnet takes the argument one step farther. In Taking the Constitution Away from the Courts, also published in 1999, he calls for a constitutional amendment overruling Marbury. In Marbury's place, Tushnet advocates "populist constitutional law": a constitutional law that is defined outside of the courts by the people themselves, "whether we act in the streets, in the voting booths, or in legislatures as representatives of others."

More recently, in 2004, Dean Kramer attempts in The People Themselves to provide the historical evidence for the policy arguments of Professors Sunstein and Tushnet. Indeed, Professor Tushnet opines on the dust jacket to Dean Kramer's book that The People Themselves "is perhaps the most important work of constitutional theory and history in a generation."

Dean Treanor's major contribution to the legal academy's call to limit, or eliminate, judicial review appeared recently as "Judicial Review Before Marbury": a massive article in the Stanford Law Review. There, Treanor argues that the original understanding of judicial review was to protect the structural integrity of the judicial process and the national political process, rather than to safeguard individual rights.

Finally, Professor Waldron, a philosopher by training, writes in a new essay in the Yale Law Journal entitled "The Core Case Against Judicial Review" that there is "no reason to suppose that rights are better protected by [judicial review] than they would be by democratic legislatures" and that, considered apart from the outcomes it generates, "judicial review is democratically illegitimate."

Why These Influential Legal Academics Are Incorrect

In my opinion, all of these distinguished academics are wrong.

I'll start with Professor Waldron's philosophical argument. Admittedly, I'm no philosopher, but history and political science make plain that the Constitution establishes a republic, not a democracy. In a republic, decisionmakers are elected -- or, in the federal judiciary's case, appointed by those who are elected -- to govern the polity. Consequently, Professor Waldron's "core case" against judicial review is issued against a straw man. Or, as a philosopher might put it, his "core case" is based on an "invalid premise" about the nature of the American constitutional order.

Moreover, the fact that federal judges have the time and job security to be philosophers suggests that a philosopher such as Professor Waldron should favor, rather than oppose, judicial review. In a famous 1957 essay calling for the appointment of Supreme Court justices "wholly on the basis of functional fitness," Felix Frankfurter made a similar point.

With respect to the policy arguments against judicial review proffered by Professors Sunstein and Tushnet, policy is like beauty: it lies in the eye of the beholder. What might seem like good policy to them, might seem like bad policy to some of the rest of us. Professor Burt Neuborne of New York University School of Law put it well in a review of another of Professor Sunstein's books, Democracy and the Problem of Free Speech: "[M]any of Professor Sunstein's distinctions lack a principled basis, other than Cass Sunstein's own view of what should or should not be censored. . . . In the end, his argument comes down to allowing [his] social class to use the government to elevate its speech preferences over everyone else's."

The same may be said of Professor Tushnet's policy arguments. An article in Dissent magazine that previewed a key chapter of Professor Tushnet's anti-judicial review book was entitled "Is Judicial Review Good for the Left?" As someone who thinks that most of the policies promoted by the left are unwise, I hope the answer to that question is "no." And if the answer is, in fact, "no," then as a policy matter I'm strongly in favor of judicial review.

However, whether I -- or Professors Tushnet or Sunstein -- think judicial review is good (or bad) policy should be irrelevant in a regime such as ours, dedicated as the United States is supposed to be to the rule of law. History makes plain that the U.S. Constitution establishes an independent judiciary whose principal purpose is to protect individual rights. Dean Kramer's and Dean Treanor's arguments to the contrary are therefore incorrect.

The Political Theory of an Independent Judiciary

Dean Kramer devotes virtually his entire book to describing episodes in American history in which he claims the people, rather than the judiciary, defined what the Constitution meant. Dean Treanor dedicates the entirety of his law review article to the cases that anticipated Marbury. What both fail to address, then, is the political theory that made judicial review possible, and that helps to explain why we need it. As I put it in the political theory chapter of a book I'm writing on The Origins of an Independent Judiciary, that political theory -- in summary form -- is this:

It all began with Aristotle's theory of a mixed constitution, a theory that divided government into three parts, with each part representing a political class of the regime. Next came Polybius, who emphasized the checking and balancing of government power, albeit power still divided along class, rather than institutional, lines. Marsilius of Padua was the initial political theorist to focus on the function of particular institutions, while Sir John Fortescue was the first to appreciate the unique role of the judiciary. Gasparo Contarini was responsible for marrying the Aristotelian theory of mixed government to the concept of checks and balances, and Charles I took the pivotal step of committing Anglo-American constitutional theory to the notion of balance among political institutions, rather than dominance by one. Montesquieu contributed the most famous idea of all: that political power should be divided among the legislative, executive, and judicial branches of government so as to ensure the people's liberty. Finally, John Adams argued that judges, and not simply temporary juries (as Montesquieu had argued), need to be independent from the executive and legislative branches, and that this would be possible only if judges were afforded life tenure during good behavior and paid adequate and stable salaries.

In short, although political architecture is not solely the provenance of political theorists, it was political theory that led America's constitutional framers to use the lessons of history to create a judicial branch whose independence plays such an essential role in the preservation of individual rights. Judicial review is, of course, the ultimate expression of judicial independence -- no judge without secure tenure and a salary that can't be diminished would dare to invalidate the decisions of the political actors who control his or her livelihood -- and it represents the federal judiciary's only significant check on the power of Congress, the president, the states . . . and the people themselves.

Legal academics who question the legitimacy of judicial review ignore political theory at their peril.


Scott Gerber is an associate professor at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. He is currently writing a book on The Origins of an Independent Judiciary: A Study in Early American Development, 1606-1787 from which this op-ed draws. His debut legal thriller, The Law Clerk, is in press. His e-mail address is [email protected]

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