An Introduction To The Power Of Judicial Review

Since the Connecticut Supreme Court decided State v. Santiago last August, which may have ended the death penalty in Connecticut, a debate has ensued about whether the decision constitutes a legitimate exercise of the power of “judicial review.” Judicial review refers to the power of federal and state courts and judges to strike down laws and executive actions if they conflict with, and thus violate, the United States Constitution or a state constitution.

The power of an appointed judge or panel of judges to tell an elected legislature that a law it debated and then passed, and that an elected governor or president signed, cannot be enforced because it is unconstitutional is truly extraordinary. It is also oft misunderstood. This post is an attempt to help readers understand the nature of the power and why its exercise is often controversial.

I. The Origin of Judicial Review in the United States

The Framers of the federal constitution designed a government with three branches: Congress, the Executive and the Judiciary. The constitutions of the fifty states follow that same model. Members of all three branches of our federal and state governments all take an oath upon assuming office to uphold the laws and the constitution of the United States.

Presumably, then, when Congress or a state legislature passes a law and the president or a governor signs it, those two branches of government believe the law is constitutional. But what if a court believes otherwise? Does a court actually have the power to tell two coordinate branches of government that a law they passed and believe is constitutional isn’t and, consequently, cannot be enforced?

The answer to these questions is not clear from the text of the federal constitution or most state constitutions, including our own. For example, nothing in Article III of the federal constitution, which establishes the federal courts and defines their jurisdiction, says that the Supreme Court has the power to strike down a law that it believes is unconstitutional. Nevertheless, in the seminal case of Marbury v. Madison, decided in 1804, the Supreme Court held that the constitution granted that power to the federal courts. As Chief Justice John Marshall explained:

It is emphatically the province and duty of the judicial department to say what the law is.  . . . If two laws conflict with each other, the courts must decide on the operation of each.  . . .  So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Many many books and articles have been written about Marbury v. Madison, and I will not attempt in this post to provide the reader with a detailed analysis of the legal basis of the decision. If you are interested, click here to read more about the case.

II. Under What Circumstances May a Court Legitimately Exercise the Judicial Review Power?

Marbury v. Madison effectively settled the question whether courts have the power to strike down laws as unconstitutional. But it did not settle precisely when judges may appropriately exercise that power. The power of judicial review does not authorize a judge to strike down a law because he or she personally believes that the law is stupid or unwise, or because it conflicts with the judge’s personal values and beliefs in some way. In a constitutional democracy, the wisdom of legislation is a matter for the people, through their elected representatives, to debate and decide.  As the late Justice William O. Douglas remarked in Griswold v. Connecticut (discussed below), “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Judges are only empowered to strike down legislation if it conflicts with the constitution.

To say that a judge can only strike down a law if it conflicts with the constitution, however, begs the question somewhat. When does a law violate the constitution? Some cases are easy; others are hard. And the hard cases often lead to a hue and cry that judges who strike down a law as unconstitutional are imposing their own personal views of the wisdom of the challenged legislation, rather than acting as neutral arbiters enforcing the text of the constitution.

Let’s begin with an easy case.  The First Amendment states, “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .” Now imagine that Congress passes a law making it a crime for a newspaper to publish an editorial that criticizes the President. Such a law sure seems to run afoul of the First Amendment’s clear, textual prohibition against government abridging the freedom of speech and the press. If a newspaper challenged such a law in court, and if the judge struck the law down as violative of the First Amendment, few would question that the judge was doing anything other than enforcing the First Amendment, not imposing his own views. (Side note: Notwithstanding the First Amendment, President John Adams signed the Alien and Sedition Acts in 1798, which made it a crime to criticize the government. That’s a story for another day. . . .)

Now for a hard case, one with Connecticut origins. In Griswold v. Connecticut (1965), the U.S. Supreme Court was asked to decide whether a Connecticut law making it a crime for any person to use any drug or article to prevent contraception was unconstitutional. Unlike the clear text of the First Amendment, there is no text in the constitution that expressly or by clear implication forbids a state from enacting such a law. On what legal basis, then, could a judge strike the law down?

In Griswold, a divided Supreme Court held that the Connecticut law was unconstitutional, but the justices struggled in their attempts to root their decision in the text of the federal constitution, and thereby avoid the charge that they were using the constitution as a pretext for imposing their own personal moral views concerning contraception on society.

Justice Douglas, who wrote the majority opinion, argued that several of the amendments in the Bill of Rights had “penumbras and emanations” that created a constitutional “zone of personal privacy” into which the government could not intrude. This zone of privacy, he argued, protected the right of married couples to decide whether to use contraception free of government interference.

Justice Goldberg wrote a concurring opinion that cited the Ninth Amendment as the basis of his decision. (The Ninth Amendment states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

Justice Harlan, in a concurring opinion that was both prescient, while also rooted in his dissent in an earlier decision (Poe v. Ullman (1961)), based his decision on the Fourteenth Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Due process, he argued, is more than a set of procedural protections, such as the right to cross-examine witness at a trial. It also provides substantive protection against laws that arbitrarily or irrationally deprive a person of his or her “liberty.” But how is a judge supposed to determine just what “liberty” is constitutionally protected? The liberty not to be imprisoned without a trial is obvious; the liberty to be free of government interference with one’s use of contraceptives is far from obvious. Justice Harlan candidly acknowledged this difficulty in Poe v. Ullman, to which he cited in Griswold:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

The dissenting justices in Griswold, Justices Black and Stewart, would have none of this. Absent a clear textual prohibition in the federal constitution against states regulating the sale and use of contraceptives, their position was that the Supreme Court had no business striking down the Connecticut law. The majority’s decision to do so anyway was a clear usurpation of the legislative power.  As Justice Black wrote:

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court’s belief that a particular state law under scrutiny has no “rational or justifying” purpose, or is offensive to a “sense of fairness and justice.” If these formulas based on “natural justice,” or others which mean the same thing,  are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is, of course, that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous. I readily admit that no legislative body, state or national, should pass laws that can justly be given any of the invidious labels invoked as constitutional excuses to strike down state laws. But perhaps it is not too much to say that no legislative body ever does pass laws without believing that they will accomplish a sane, rational, wise and justifiable purpose. While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of “civilized standards of conduct.” Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom, and transfers that power to this Court for ultimate determination — a power which was specifically denied to federal courts by the convention that framed the Constitution.

In sum, that courts have the power to strike down laws that violate the federal or state constitutions is settled. The exact circumstances under which they may exercise that power legitimately are not.

III. Judicial Review and the Santiago Decision

What does any of the above have to do with the Connecticut Supreme Court’s decision in Santiago? Very simply, the issue in Santiago was whether a law the Connecticut General Assembly passed in 2012–which repealed the death penalty, but only prospectively–was constitutional. Thus, the case asked the Supreme Court to exercise its power of judicial review. The ensuing debate concerns whether the court, in holding that the death penalty was unconstitutional under all circumstances, exercised that extraordinary power legitimately. The dissenting justices argue, persuasively in my opinion, that the majority did not exercise that power legitimately. And I say that as someone who strongly opposes the death penalty.

Some readers may be tempted to say that just because three dissenting justices disagree with the majority’s decision does not make that decision an illegitimate  exercise of the court’s judicial review power.  Hey, reasonable people can disagree, right?  In general, I agree with that proposition; appellate judges often have reasonable disagreements about how a case should be decided or what the constitution means in any given case. However, the mere fact that a panel of judges have a disagreement does not necessarily mean that both sides of the argument are reasonable. (By analogy, lawyers often are at odds over the meaning of a statute, but courts are fond of saying that just because two lawyers disagree over the meaning does not automatically make the statute ambiguous.) Sometimes, when you analyze a decision closely, the flaws in the legal analysis become so clear that it is fair to call into question the very legitimacy of the decision as a proper exercise of the power of judicial review. That, I am sorry to say, is the problem with the majority decision in Santiago.