Limitations on the Exercise of Judicial Review
Limitations on the Exercise of Judicial Review
Constitutional Interpretation.—Under a written constitution, which is law and is binding on government, the practice of judicial review raises questions of the relationship between constitutional interpretation and the Constitution—the law which is construed. The legitimacy of construction by an unelected entity in a republican or democratic system becomes an issue whenever the construction is controversial, as it was most recently in the 1960s to the present. Full consideration would carry us far afield, in view of the immense corpus of writing with respect to the proper mode of interpretation during this period.
Scholarly writing has identified six forms of constitutional argument or construction that may be used by courts or others in deciding a constitutional issue.644 These are (1) historical, (2) textual, (3) structural, (4) doctrinal, (5) ethical, and (6) prudential. The historical argument is largely, though not exclusively, associated with the theory of original intent or original understanding, under which constitutional and legal interpretation is limited to attempting to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or the constitutional provision in question. The textual argument, closely associated in many ways to the doctrine of original intent, concerns whether the judiciary or another is bound by the text of the Constitution and the intentions revealed by that language, or whether it may go beyond the four corners of the constitutional document to ascertain the meaning, a dispute encumbered by the awkward constructions, interpretivism and noninterpretivism.645 Using a structural argument, one seeks to infer structural rules from the relationships that the Constitution mandates.646 The remaining three modes sound in reasoning not necessarily tied to original intent, text, or structure, though they may have some relationship. Doctrinal arguments proceed from the application of precedents. Prudential arguments seek to balance the costs and benefits of a particular rule. Ethical arguments derive rules from those moral commitments of the American ethos that are reflected in the Constitution.
642 19 U.S. at 379.
643 19 U.S. at 422-23. Justice Story traversed much of the same ground in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). In Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, raising again the Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on grounds both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again thrashed out with the refusal of a Virginia court to enforce a mandate of the Supreme Court. And see Cooper v. Aaron, 358 U.S. 1 (1958).
644 The six forms, or modalities as he refers to them, are drawn from P. BOBBITT, CONSTITUTIONAL FATE—THEORY OF THE CONSTITUTION (1982); P. BOBBITT, CONSTITUTIONAL INTERPRETATION (1991). Of course, other scholars may have different categories, but these largely overlap these six forms. E.g., Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV.1189 (1987); Post, Theories of Constitutional Interpretation, in LAW AND THE ORDER OF CULTURE 13-41 (R. Post ed., 1991).
645 Among the vast writing, see, e.g., R. BORK, THE TEMPTING OF AMERICA (1990); J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); L. TRIBE & M. DORF, ON READING THE CONSTITUTION (1991); H. WELLINGTON, INTERPRETING THE CONSTITUTION (1990); Symposium, Constitutional Adjudication and Democratic Theory, 56 N. Y. U. L. REV. 259 (1981); Symposium, Judicial Review and the Constitution—The Text and Beyond, 8 U. DAYTON L. REV. 43 (1983); Symposium, Judicial Review Versus Democracy, 42 OHIO ST. L.J. 1 (1981); Symposium, Democracy and Distrust: Ten Years Later, 77 VA. L. REV. 631 (1991). See also Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085 (1989).
646 This mode is most strongly association with C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).
Although the scholarly writing ranges widely, a much more narrow scope is seen in the actual political-judicial debate. Rare is the judge who will proclaim a devotion to ethical guidelines, such, for example, as natural-law precepts. The usual debate ranges from those adherents of strict construction and original intent to those with loose construction and adaptation of text to modern-day conditions.647 However, it is with regard to more general rules of prudence and self-restraint that one usually finds the enunciation and application of limitations on the exercise of constitutional judicial review.
Prudential Considerations.—Implicit in the argument of Marbury v. Madison648 is the thought that with regard to cases meeting jurisdictional standards, the Court is obligated to take and decide them. Chief Justice Marshall spelled the thought out in Cohens v. Virginia:649 It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. As the comment recognizes, because judicial review grows out of the fiction that courts only declare what the law is in specific cases650 and are without will or discretion,651 its exercise is surrounded by the inherent limitations of the judicial process, most basically, of course, by the necessity of a case or controversy and the strands of the doctrine comprising the concept of justiciability.652 But, although there are hints of Chief Justice Marshall’s activism in some modern cases,653 the Court has always adhered, at times more strictly than at other times, to several discretionary rules or concepts of restraint in the exercise of judicial review, the practice of which is very much contrary to the quoted dicta from Cohens. These rules, it should be noted, are in addition to the vast discretionary power which the Supreme Court has to grant or deny review of judgements in lower courts, a discretion fully authorized with certiorari jurisdiction but also evident with some appeals.654
647 E.g., Meese, The Attorney General’s View of the Supreme Court: Toward a Jurisprudence of Original Intention, 45 PUB. ADMIN. REV.701 (1985); Addresses—Construing the Constitution, 19 U. C. DAVIS L. REV. 1 (1985), containing addresses by Justice Brennan, id. at 2, Justice Stevens, id. at 15, and Attorney General Meese. Id. at 22. See also Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976).
648 5 U.S. (1 Cr.) 137 (1803).
651 Judicial power, as contradistinguished from the powers of the law, has no existence. Courts are the mere instruments of the law, and can will nothing. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62-63 (1936).
652 The political question doctrine is another limitation arising in part out of inherent restrictions and in part from prudential considerations. For a discussion of limitations utilizing both stands, see Ashwander v. TVA, 297 U.S. 288, 346-356 (1936) (Justice Brandeis concurring).
654 28 U.S.C. §§ 1254-1257. See F. Frankfurter & J. Landis, supra at ch. 7. The Supreme Court is not, and never has been, primarily concerned with the correction of errors in lower court decisions. In almost all cases within the Court’s appellate jurisdiction, the petitioner has already received one appellate review of his case .... If we took every case in which an interesting legal question is raised, or our prima facie impression is that the decision below is erroneous, we could not fulfill the Constitutional and statutory responsibilities placed upon the Court. To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved. Chief Justice Vinson, Address on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari. Chief Justice Warren, quoted in Wiener, The Supreme Court’s New Rules, 68 HARV. L. REV. 20, 51 (1954).
At various times, the Court has followed more strictly than other times the prudential theorems for avoidance of decision-making when it deemed restraint to be more desirable than activism.655
The Doctrine of Strict Necessity.—The Court has repeatedly declared that it will decide constitutional issues only if strict necessity compels it to do so. Thus, constitutional questions will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation, nor if a construction of the statute is fairly possible by which the question may be fairly avoided.656
Speaking of the policy of avoiding the decision of constitutional issues except when necessary, Justice Rutledge wrote: The policy’s ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.657
655 See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, supra at 111-198, with Gunther, The Subtle Vices of the ‘Passive Virtues’—A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964).
656 Rescue Army v. Municipal Court, 331 U.S. 549, 568-575 (1947). See also Berea College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & Nashville R.R., 213 U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman v. Breeze Corp., 323 U.S. 316, 324-325 (1945); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial restraint as well as considerations of comity underlie the Court’s abstention doctrine when the constitutionality of state laws is challenged.
The Doctrine of Clear Mistake.—A precautionary rule early formulated and at the base of the traditional concept of judicial restraint was expressed by Professor James Bradley Thayer to the effect that a statute could be voided as unconstitutional only when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.658 Whether phrased this way or phrased so that a statute is not to be voided unless it is unconstitutional beyond all reasonable doubt, the rule is of ancient origin659 and of modern adherence.660 In operation, however, the rule is subject to two influences, which seriously impair its efficacy as a limitation. First, the conclusion that there has been a clear mistake or that there is no reasonable doubt is that drawn by five Justices if a full Court sits. If five Justices of learning and detachment to the Constitution are convinced that a statute is invalid and if four others of equal learning and attachment are convinced it is valid, the convictions of the five prevail over the convictions or doubts of the four. Second, the Court has at times made exceptions to the rule in certain categories of cases. Statutory interferences with liberty of contract were once presumed to be unconstitutional until proved to be valid;661 more recently, presumptions of invalidity have expressly or impliedly been applied against statutes alleged to interfere with freedom of expression and of religious freedom, which have been said to occupy a preferred position in the constitutional scheme of things.662
Exclusion of Extra-Constitutional Tests.—Another maxim of constitutional interpretation is that courts are concerned only with the constitutionality of legislation and not with its motives, policy, or wisdom,663 or with its concurrence with natural justice, fundamental principles of government, or the spirit of the Constitution.664 In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in cases in which a finding of unconstitutionality has been made as a reassurance of the Court’s limited review. And it should be noted that at times the Court has absorbed natural rights doctrines into the text of the Constitution, so that it was able to reject natural law per se and still partake of its fruits and the same thing is true of the laissez faire principles incorporated in judicial decisions from about 1890 to 1937.665
658 The Origin and Scope of the American Doctrine of Constitutional Law, in J. THAYER, LEGAL ESSAYS 1, 21 (1908).
661 But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances. Adkins v. Children’s Hospital, 261 U.S. 525, 546 (1923).
662 Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter’s concurrence, id. at 89-97, is a lengthy critique and review of the preferred position cases up to that time. The Court has not used the expression in recent years but the worth it attributes to the values of free expression probably approaches the same result. Today, the Court’s insistence on a compelling state interest to justify a governmental decision to classify persons by suspect categories, such as race, Loving v. Virginia, 388 U.S. 1 (1967), or to restrict the exercise of a fundamental interest, such as the right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports presumption of unconstitutionality.
663 We fully understand ...the powerful argument that can be made against the wisdom of this legislation, but on that point we have no concern. Noble State Bank v. Haskell, 219 U.S. 575, 580 (1911) (Justice Holmes for the Court). See also Trop v. Dulles, 356 U.S. 86, 120 (1958) (Justice Frankfurter dissenting).
A supposedly hallowed tenet is that the Court will not look to the motives of legislators in determining the validity of a statute. Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); United States v. O’Brien, 391 U.S. 367 (1968); Palmer v. Thompson, 403 U.S. 217 (1971). Yet an intent to discriminate is a requisite to finding at least some equal protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), and a secular or religious purpose is one of the parts of the tripartite test under the establishment clause. Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissent). Other constitutional decisions as well have turned upon the Court’s assessment of purpose or motive. E.g., Gomillion v. Light-foot, 364 U.S. 339 (1960); Child Labor Tax Case, 259 U.S. 20 (1922).
Presumption of Constitutionality.—It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, wrote Justice Bushrod Washington, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.666 A corollary of this maxim is that if the constitutional question turns upon circumstances, courts will presume the existence of a state of facts which would justify the legislation that is challenged.667 It seems apparent, however, that with regard to laws which trench upon First Amendment freedoms and perhaps other rights guaranteed by the Bill of Rights such deference is far less than it would be toward statutory regulation of economic matters.668
668 E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967). But see McGowan v. Maryland, 366 U.S. 420, 426 (1961). The development of the compelling state interest test in certain areas of equal protection litigation also bespeaks less deference to the legislative judgment.
Disallowance by Statutory Interpretation.—If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed,669 even though in some instances this maxim has caused the Court to read a statute in a manner which defeats or impairs the legislative purpose.670 Of course, the Court stresses that [w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.671 The maxim is not followed if the provision would survive constitutional attack or if the text is clear.672 Closely related to this principle is the maxim that when part of a statute is valid and part is void, the courts will separate the valid from the invalid and save as much as possible.673 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort to determine whether the provisions are separable.674
Stare Decisis in Constitutional Law.—Adherence to precedent ordinarily limits and shapes the approach of courts to decision of a presented question. Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right .... This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error so fruitful in the physical sciences, is appropriate also in the judicial function.675 Stare decisis is a principle of policy, not a mechanical formula of adherence to the latest decision however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.676 The limitation of stare decisis seems to have been progressively weakened since the Court proceeded to correct a century of error in Pollock v. Farmers’ Loan & Trust Co.677 Since then, more than 200 decisions have been overturned,678 and the merits of stare decisis seem more often celebrated in dissents than in majority opinions.679 Of lesser formal effect than outright overruling but with roughly the same result is a Court practice of distinguishing precedents, which often leads to an overturning of the principle enunciated in the case while leaving the actual case more or less alive.680
669 Rust v. Sullivan, 500 U.S. 173, 190-191 (1991); Public Citizen v. Department of Justice, 491 U.S. 440, 465-467 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
670 E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction of Clayton Act contempt provisions to avoid constitutional questions): United States v. Harriss, 347 U.S. 612 (1954) (lobbying act): United States v. Seeger, 380 U.S. 163 (1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious objection statute).
672 Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id. at 204-07 (Justice Blackmun dissenting), and 223-225 (Justice O’Connor dissenting). See also Peretz v. United States, 501 U.S. 923, 929-930 (1991).
673 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971).
675 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Justice Brandeis dissenting). For recent arguments with respect to overruling or not overruling previous decisions, see the self-consciously elaborate opinion for a plurality in Planned Parenthood v. Casey, 505 U.S. 833, 854-69 (1992) (Justices O’Connor, Kennedy, and Souter) (acknowledging that as an original matter they would not have decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they might consider it wrongly decided, but nonetheless applying the principles of stare decisis—they stressed the workability of the case’s holding, the fact that no other line of precedent had undermined Roe, the vitality of that case’s factual underpinnings, the reliance on the precedent in society, and the effect upon the Court’s legitimacy of maintaining or overruling the case). See id. at 953-66 (Chief Justice Rehnquist concurring in part and dissenting in part), 993-1001 (Justice Scalia concurring in part and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827-30 (1991) (suggesting, inter alia, that reliance is relevant in contract and property cases), and id. at 835, 842-44 (Justice Souter concurring), 844, 848-56 (Justice Marshall dissenting).
676 Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for Court). See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger dissenting). But see id. at 19 (Justice Harlan concurring in part and dissenting in part); Williams v. Florida, 399 U.S. 78, 117-119 (1970) (Justice Harlan concurring in part and dissenting in part). Recent discussions of and both applications of and refusals to apply stare decisis may be found in Hohn v. United States, 524 U.S. 236, 251-52 (1998), and id. at 260-63 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 U.S. 3, 20-2 (1997); Agostini v. Felton, 521 U.S. 203, 235-36 (1997), and id. at 523-54 (Justice Souter dissenting); United States v. IBM Corp., 517 U.S. 843, 854-56 (1996) (noting principles of following precedent and declining to consider overturning an old precedent when parties have not advanced arguments on the point), with which compare id. at 863 (Justice Kennedy dissenting) (arguing that the United States had presented the point and that the old case ought to be overturned); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231-35 (1996) (plurality opinion) (discussing stare decisis, citing past instances of overrulings, and overruling 1990 decision), with which compare the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 517 U.S. 44, 61-73 (1996) (discussing policy of stare decisis, why it should not be followed with respect to a 1989 decision, and overruling that precedent), with which compare the dissents, id. at 76, 100. Justices Scalia and Thomas have argued for various departures from precedent. E.g., Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 200-01 (1995) (Justice Scalia concurring) (negative commerce jurisprudence); Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 631 (1996) (Justice Thomas concurring in part and dissenting in part) (rejecting framework of Buckley v. Valeo and calling for overruling of part of case). Compare id. at 626 (Court notes those issues not raised or argued).
678 See Appendix. The list encompasses both constitutional and statutory interpretation decisions. The Court adheres, at least formally, to the principle that stare decisis is a stricter rule for statutory interpretation, Patterson v. McLean Credit Union, 491 U.S. 164, 171-175 (1989), at least in part since Congress may much more easily revise those decisions, but compare id. at 175 n.1, with id. at 190-205 (Justice Brennan concurring in the judgment in part and dissenting in part). See also Flood v. Kuhn, 407 U.S. 258 (1972).
679 E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) (Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339-340 (1962) (Justice Harlan dissenting): Gray v. Sanders, 372 U.S. 368, 383 (1963) (Justice Harlan dissenting). But see Green v. United States, 356 U.S. 165, 195 (1958) (Justice Black dissenting). And compare Justice Harlan’s views in Mapp v. Ohio, 367 U.S.643, 674-675 (1961) (dissenting), with Glidden v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of the Court).
680 Notice that in Planned Parenthood v. Casey, 505 U.S. 833 (1992), while the Court purported to uphold and retain the central meaning of Roe v. Wade, it overruled several aspects of that case’s requirements. And see, e.g., the Court’s treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn v. Blumstein, 405 U.S. 330, 337, n.7 (1972). And see id. at 361 (Justice Blackmun concurring.)
Conclusion.—The common denominator of all these maxims of prudence is the concept of judicial restraint, of judge’s restraint. We do not sit, said Justice Frankfurter, like kadi under a tree, dispensing justice according to considerations of individual expediency.681 [A] jurist is not to innovate at pleasure, wrote Jutice Cardozo. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.682 All Justices will, of course, claim adherence to proper restraint,683 but in some cases at least, such as Justice Frankfurter’s dissent in the Flag Salute Case,684 the practice can be readily observed. The degree, however, of restraint, the degree to which legislative enactments should be subjected to judicial scrutiny, is a matter of uncertain and shifting opinion.
682 B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921).
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