With Justice Ruth Bader Ginsburg’s veiled hint yesterday of an impending vacancy on the U.S. Supreme Court, speculation about the necessary qualities of the next Justice will now begin in earnest.
By far the most important criterion for any new Justice is a judicial philosophy that embraces a healthy respect for the vital role played by judicial review in guaranteeing liberty and equal justice for all. (Gender will also be a key criterion if the vacancy is created by the retirement of Justice Ginsburg herself - it is unimaginable that the twenty-first century Supreme Court would not count at least one woman among its members.)
Judicial review, the Court’s power to correct the unconstitutional actions of the legislative and executive branches, is precisely how the framers originally envisioned the Court’s role in the constitutional design.
James Madison, for example, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
In principle, judges and scholars from across the political spectrum agree on these basics. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”
In practice, however, conservative ideology has latched onto the idea that the use of "undemocratic" judicial review is “activist” and will almost always constitute inappropriate “legislating from the bench.” (This position is consistently held by a bare minority (four) of the current Supreme Court Justices, which explains the critical importance of the next Justice’s views on the matter.) What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government is to protect liberty and equal justice. As amply explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.
When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.
So as President Obama looks at candidates for a Supreme Court vacancy, he should insist on a person whose judicial philosophy includes a strong understanding of the important role judicial review has played throughout American history in vindicating individual rights and ensuring equal justice for all. The U.S. Supreme Court must not shrink from fulfilling its crucial - yes, active - original constitutional role of critically reviewing the actions of the executive and legislative branches and striking them down where necessary.
