Do We Need the Supreme Court?
In our system of government, the Supreme Court has the authority to declare laws unconstitutional. In our nation's formative years, this authority -- the power of "judicial review" -- was seen as an essential check against the dangers of unrestrained democracy. As James Madison explained when he proposed the Bill of Rights, "independent tribunals of justice will consider themselves... the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights" guaranteed by the Constitution.
Alexander Hamilton added that constitutional freedoms could "be preserved in practice no other way than through the medium of the courts of justice." The "independence of the judges," he reasoned, was necessary "to guard the constitution and the rights of individuals from the effects of those ill humours which... sometimes disseminate among the people themselves." Judges, he insisted, have a duty to resist invasions of constitutional rights even if they are "instigated by the major voice of the community."
Faced with constitutional challenges to government actions, courts have two alternatives: they can uphold the law and allow it to be enforced or they can declare it invalid. When they uphold the law, they permit the majority to have their way; when they invalidate the law -- and exercise the power of judicial review -- they restrict the majority's freedom of action. The existence of judicial review matters only when the courts hold a law unconstitutional. A central question in evaluating this element of our constitutional structure is whether courts have exercised this authority wisely.
There are at least two ways of answering that question. First, lawyers, legal scholars, and other experts can decide, in their professional judgment, whether particular decisions reached the "correct" legal result. Of course, lawyers, legal scholars, and other experts often disagree quite sharply over this question, depending on their preferred approach to constitutional interpretation. There are many different approaches, honestly held, and they often produce different conclusions. A justice who endorses "originalism," for example, will often disagree with one who endorses the notion of a "living" Constitution.
A different way of answering the question, focused less on law than on policy, asks whether this is a better nation because the Supreme Court has the power of judicial review. That is, has the Supreme Court's exercise of the authority to hold laws unconstitutional -- in defiance of the wishes of the majority -- made this a better or worse nation?
To give you an opportunity to answer that question for yourself, I provide below a list of twenty important decisions over the past sixty years in which the Supreme Court has held laws unconstitutional. Decide for yourself whether, in your judgment, each one of these decisions was good or bad for the nation, and then make your own assessment whether the overall result is positive or negative:
1. The government cannot constitutionally segregate students in separate black and white schools. Brown v. Board of Education (1954).
2. When the police commit an unconstitutional search, government cannot constitutionally use the evidence obtained in the search against the victim of the unconstitutional search. Mapp v. Ohio (1961).
3. The government cannot constitutionally have state-sponsored prayers in the public schools. Engel v. Vitale (1962).
4. The government has a constitutional obligation to provide a lawyer to persons accused of crime if they are too poor to afford one themselves. Gideon v. Wainwright (1963).
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