“but we are infallible only because we are final.” Men who know their own fallibility may find it hard to bear the burden of final decision. A few months before the Supreme Court agreed to hear Gideon’s case, Justice Charles Evans Whittaker retired after only five years on the Court, explaining candidly that he found the strain of its work too great. He told friends that when he wrote an opinion, he felt as if he were carving his words into granite.
Other men may not be bothered by judicial power, mayindeed revel in it. But the existence of power so great inevitably raises questions. Is it consistent with democracy to let nine men, appointed for life and directly answerable to no constituency, make ultimate decisions about the direction of our society? How free should a judge feel to set above the will of the people’s elected representatives the principles that he finds in the Constitution? How does he find them, given the Constitution’s vague words and the conflicting interpretations of them by judges of the past?
The very legitimacy of judicial review has been questioned repeatedly from the time the Supreme Court first held a federal statute unconstitutional, in
Marbury v. Madison
in 1803. The Jeffersonians accused John Marshall of usurpation. Liberals said the same of the Court in the 1930’s, and revisionist historians of that day tried to prove that it really had not been given the power of judicial review. Today the epithets come from extremists of the right, disaffected by the Court’s decisions on individual liberty and racial equality.
Scholarly opinion has long since dismissed the charge that judicial review was illicitly imported into our system by John Marshall or anyone else. The Constitution does not explicitly provide for its enforcement by the federal courts, but the text—including the grant of jurisdiction over cases arising under the Constitution—indicates that expectation. The records of the Philadelphia Convention of 1787 point the same way; at least a substantial number of the delegates assumed that the Supreme Court would pass on the constitutionality of state and federal acts that came before it in lawsuits. The delegates, in fact, considered a proposal to go further and have the Court share the President’s veto power in a Council of Revision, but that suggestion was rejectedon the ground that the Court already had a “sufficient check” by its power to declare laws unconstitutional. The very conception of a written constitution binding on governments as well as citizens, the great American contribution to political history, presupposed some institution to enforce the rules. Theoretically that could have been Congress, but the episodic and political nature of the legislative process would have made that choice doubtful. In fact we have lived for one hundred and seventy-five years with the Supreme Court as the final interpreter of our fundamental law, and our whole system of government is now built on that assumption. Justice Jackson, no starry-eyed admirer of judicial review, wrote in 1954: “The real strength of the position of the Court is probably in its indispensability to government under a written Constitution. It is difficult to see how the provisions of a one-hundred-and-fifty-year-old written document can have much vitality if there is not some permanent institution to translate them into current commands.…”
But if the issue of legitimacy is foreclosed, there remain very live questions of when and how the Supreme Court should exercise its great power to nullify what other branches of government have done. These questions have been the subject of a fierce and unending debate among commentators and among the justices themselves. The opposing positions can best be summarized in terms of the two uncommonly able and determined justices who led the debate for a generation, Felix Frankfurter and Hugo L. Black.
Justice Frankfurter’s motto was “judicial
Other men may not be bothered by judicial power, mayindeed revel in it. But the existence of power so great inevitably raises questions. Is it consistent with democracy to let nine men, appointed for life and directly answerable to no constituency, make ultimate decisions about the direction of our society? How free should a judge feel to set above the will of the people’s elected representatives the principles that he finds in the Constitution? How does he find them, given the Constitution’s vague words and the conflicting interpretations of them by judges of the past?
The very legitimacy of judicial review has been questioned repeatedly from the time the Supreme Court first held a federal statute unconstitutional, in
Marbury v. Madison
in 1803. The Jeffersonians accused John Marshall of usurpation. Liberals said the same of the Court in the 1930’s, and revisionist historians of that day tried to prove that it really had not been given the power of judicial review. Today the epithets come from extremists of the right, disaffected by the Court’s decisions on individual liberty and racial equality.
Scholarly opinion has long since dismissed the charge that judicial review was illicitly imported into our system by John Marshall or anyone else. The Constitution does not explicitly provide for its enforcement by the federal courts, but the text—including the grant of jurisdiction over cases arising under the Constitution—indicates that expectation. The records of the Philadelphia Convention of 1787 point the same way; at least a substantial number of the delegates assumed that the Supreme Court would pass on the constitutionality of state and federal acts that came before it in lawsuits. The delegates, in fact, considered a proposal to go further and have the Court share the President’s veto power in a Council of Revision, but that suggestion was rejectedon the ground that the Court already had a “sufficient check” by its power to declare laws unconstitutional. The very conception of a written constitution binding on governments as well as citizens, the great American contribution to political history, presupposed some institution to enforce the rules. Theoretically that could have been Congress, but the episodic and political nature of the legislative process would have made that choice doubtful. In fact we have lived for one hundred and seventy-five years with the Supreme Court as the final interpreter of our fundamental law, and our whole system of government is now built on that assumption. Justice Jackson, no starry-eyed admirer of judicial review, wrote in 1954: “The real strength of the position of the Court is probably in its indispensability to government under a written Constitution. It is difficult to see how the provisions of a one-hundred-and-fifty-year-old written document can have much vitality if there is not some permanent institution to translate them into current commands.…”
But if the issue of legitimacy is foreclosed, there remain very live questions of when and how the Supreme Court should exercise its great power to nullify what other branches of government have done. These questions have been the subject of a fierce and unending debate among commentators and among the justices themselves. The opposing positions can best be summarized in terms of the two uncommonly able and determined justices who led the debate for a generation, Felix Frankfurter and Hugo L. Black.
Justice Frankfurter’s motto was “judicial
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