In my third selection from the introduction of Philip Hamburger's Law and Judicial Duty, Hamburger suggests that misunderstandings of the history of judicial review tend to lead to a more expansive view of judicial power. If judges established their own power of review, "this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans."

Implications for Judicial Power

The history of how judges developed "judicial review" has consequences for judicial power. By shifting the constitutional authority for judicial review from the Constitution to the judges, the history appears to imply that the judges enjoy control over the scope and exercise of judicial review—thus leaving them power over their own role in enforcing the Constitution.

Initially, the history of judicial review seemed to call into doubt the legitimacy of judicial review, for if the framers "intended the Court to have the power, why did they not provide for it?" On such assumptions, some commentators almost a century ago charged the judges with "usurpation." Fifty years later, many scholars still treated judicial review as a debatable proposition," and they thereby questioned the authority of judicial expositions of the Constitution, arguing that all branches of government enjoy a power of interpretation. . . .

Judicial power, however, has come to seem less troubling than it did to earlier generations, and commentators therefore increasingly assume that the judicial creation of judicial review was but a singularly important example of an inevitable judicial discretion over constitutional law. Abandoning the word "usurpation," they propose that even if judicial review lacks much authority in the U.S. Constitution, it has a broad basis in judicial power and American society. Alexander Bickel writes that "the power of judicial review … cannot be found" in the constitution and that therefore "the institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped, and maintained;" but " [i]f any social process can be said to have been 'done' at a given time. and by a given act, it is Marshall's achievement … in the case of Marbury v. Madison."' Less confident that the Chief Justice somehow accomplished so much in a single case, other scholars combine judicial creativity and public acquiescence to overcome the absence of authority in the U.S. Constitution. As put by Eugene Rostow, judicial review "stands now, whatever the Founding Fathers may in fact have meant, as an integral feature of the living constitution, long since established as a working part of the democratic political life of the nation." Although perhaps not "the intention of the Founding Fathers," it is "part of the living constitution."

With this attribution of judicial review to the judges, the history of judicial review gives legitimacy to a broad judicial control over the extent and exercise of judicial power. Justice Jackson argues that "[s]ince the power was not disclosed by the instrument, it follows that it was not limited or regulated by it" and concludes that "[w]hen the power should come into play" and "by what caution and safeguards it would be hedged" were matters left to evolution of what we know as 'Judicial Supremacy."' . . .

The judicial discretion implied by the history becomes especially clear from the claims that judges can vary their enforcement of constitutional law. Building on Justice Harlan Fiske Stone's suggestion in Carolene Products that the judges can adopt different degrees of "judicial scrutiny," Learned Hand argues that "nothing in the United States Constitution … gave courts any authority to review the decisions of Congress," and that since this power is not a logical deduction from the structure of the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court sees, or thinks it sees, an invasion of the Constitution. . . .

The weakness of the constitutional authority has left the judges to analyze their power in terms of political theory. If the U.S. Constitution did not authorize judicial review, "the function must be supported by... other reasons," and with this sense that judicial review rests on functional justifications, Bickel concluded that "there will . . . be instances when it seems justifiable to exercise judicial review more vigorously against the states than the federal legislature or executive, and instances calling for less vigor as well"—the latter being times for prudence and what Bickel called the "passive virtues." The theory invited by the apparently weak constitutional authority for judicial review has thus appeared to suggest that judges should adjust the severity of their review in accord with a wide range of considerations, including the judges' institutional competence, the danger from different levels of government, the importance of different types of rights, and the political circumstances of different social groups. In one version or another, this sort of political theorizing has been the preeminent mode of analyzing judicial review for half a century, and after being intimated by Hand and Bickel, and elaborated by Jesse Choper and John Hart Ely, it has become profoundly influential.

The history of judicial review thus creates an opening for an expansive judicial power. If judges established their power of review on their own authority, they would appear to have control over the character and exercise of the power, and this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans.

Tomorrow: Part 4: Evidentiary Issues