Opinion | How the Founders Intended to Check the Supreme Court’s Power

Last December, during oral arguments in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.”

It was a remarkable observation. Sotomayor’s primary intent was to argue that rights and prerogatives need not be explicitly delineated in the Constitution for them to exist. The right to privacy — more specifically, the right to terminate a pregnancy — does not appear anywhere in the document, but neither does the Supreme Court’s power of judicial review. Both exist by strong implication.

It’s an observation worth revisiting. After issuing a wave of hotly contested, and in some cases deeply unpopular, decisions, the Supreme Court has emerged in recent weeks as a formidable —and perhaps the most formidable — branch of the federal government. Six conservative justices, enjoying life tenure on the bench, are fundamentally reshaping the very meaning of citizenship. Their power to do so is seemingly absolute and unchecked.

How did we get here?

Liberal critics of today’s judicial activism are right when they note that the Supreme Court essentially arrogated to itself the right of judicial review — the right to declare legislative and executive actions unconstitutional — in 1803, in the case of Marbury v. Madison. There is nothing in the Constitution that confers this power upon the only unelected branch of government. But it is equally true that many of the Constitution’s framers and original proponents intended or at least believed the court would enjoy that prerogative. If context matters — and liberals normally insist that it does — the court is the frontline arbiter of what is, and isn’t, constitutional.

But that doesn’t make the court more powerful than the executive and legislative branches. Acting in concert, the president and Congress may shape both the size and purview of the court. They can declare individual legislative measures or entire topics beyond their scope of review. It’s happened before, notably in 1868, when Congress passed legislation stripping the Supreme Court of its jurisdiction over cases related to federal writs of habeas corpus. In the majority decision, Chief Justice Salmon P. Chase acknowledged that the court’s jurisdiction was subject to congressional limitation. Subsequent justices, over the past century, have acknowledged the same.

That’s the brilliance of checks and balances. In the same way that Congress or the Supreme Court can rein in a renegade president, as was the case during Watergate, the president and Congress can place checks on an otherwise unconstrained court, if they believe the justices have exceeded their mandate.  

In 1801, outgoing President John Adams appointed, and Congress confirmed, a number of “midnight” judicial nominees, in an effort to stymie incoming President Thomas Jefferson. John Marshall, then closing out his tenure as secretary of state, failed to deliver official commissions to several of these justices. When Jefferson instructed his secretary of state, James Madison, to withhold the commissions, in an effort to deny Adams’ nominees their seats on the bench, one of those confirmed nominees, William Marbury, sued. The case wound its way to the high court. In a decision penned by Marshall, who now served as chief justice, the court held that Madison had violated the law by withholding the commissions but also declined to order him to do so. In the same breath, the court asserted the right to strike down federal or state laws that it deemed unconstitutional. And so the concept of judicial review came into being.

Critics are correct on one point: The Constitution is silent on judicial review. It says only that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” But many of the framers assumed that some form of review was a given.

Judicial review as a concept was well-established in 1787. English courts had long issued rulings upholding or striking down laws — rulings that, in aggregate, and alongside centuries of commentary, formed the basis of England’s unwritten Constitution. It was certainly well-established in the United States, even on the eve of Marshall’s decision. Between the Constitution’s ratification and 1803, federal and state judges struck down at least 31 statutes on the grounds that they violated either the federal or state constitutions. These rulings were generally received with silent acquiescence.

We also know that many of the Constitution’s framers and loudest proponents anticipated the Supreme Court’s role in adjudicating the constitutionality of laws and actions. In Federalist Paper 78, Alexander Hamilton said so explicitly, writing: “If it is said that the legislative body is themselves the constitutional judges of their own … it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. … It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

Hamilton wasn’t alone. At least 12 delegates to the Philadelphia convention affirmed the judiciary’s role in reviewing legislative measures, though their interpretations of this power varied. No delegates appear to have argued strongly in the opposite direction. Judicial review was already an established practice in state courts, a point that several delegates noted with approval. Madison lauded judges in Rhode Island who had “Refused to execute an unconstitutional law.” Elbridge Gerry observed that state judges regularly “set aside laws as being agst. the [state] Constitution.”

When other delegates proposed that judges also be given explicit power to veto legislation, Gerry and his fellow New Yorker, Rufus King, objected, noting that the courts “will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality.” Arguing the opposite point, James Wilson advocated additional controls to block bad laws, noting that “[l]aws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.”

Luther Martin, a delegate from Maryland, argued that “as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws.”

Hamilton, arguably the most full-throated proponent of judicial review, similarly wrote that “the interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It, therefore, belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”

The men who gathered in Philadelphia largely agreed that courts would serve as arbiters of what was and was not constitutional. So did delegates to state-level conventions that ratified the new Constitution. Delegates in seven such meetings discussed the concept of judicial review no fewer than 25 times. In addition, at least 74 federalist pamphlets, published in 12 of the 13 states, affirmed the court’s prerogative to strike down unconstitutional laws.

It's clear from the record that the men who wrote the Constitution intended the Supreme Court, and the lower federal courts, to enjoy a constitutional veto over acts of Congress and of the states.

But they did not intend this power to be unchecked or unlimited.

Deeply ingrained in the Constitution genius are checks and balances. The president can veto legislation; Congress can override a veto. The Courts can invalidate an act of Congress or the president. And the executive and legislative branches enjoy checks against the judiciary.

The Constitution called for the establishment of a Supreme Court and lower federal courts. It left it to Congress and the president to decide just what shape the judiciary would take. They did so in the Judiciary Act of 1789, which created district courts, circuit (or appellate) courts, and a six-member Supreme Court. Over the years, Congress, with the president’s approval, has increased and decreased the number of justices on the Supreme Court, created and changed the jurisdiction of district and circuit courts, and adjusted the number of federal judges.

By now, it’s well-known that Congress can change the size, and thus the composition, of the Supreme Court by simple legislation. Court-packing, as it’s been called since 1937, when President Franklin Roosevelt unsuccessfully attempted to circumvent a hostile court by expanding its membership, is a deeply controversial practice.

Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

At least one founder was clear about the intent of Section 2. Hamilton wrote, “From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.^”

Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the court’s jurisdiction.

In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act..

Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”

No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.

In theory, Congress could very easily pass legislation denying the Supreme Court jurisdiction over a new voting rights act, a law codifying the right to privacy (including abortion rights), and other popular measures. If they so chose, Congress and the president could go further, reducing the court to a shell of its former self, leaving it to adjudicate minor matters of little significance. Of course, with the filibuster in place, this outcome is about as likely as a bill expanding the court’s membership, which is to say, very unlikely.

Would it be wise?

A world in which a highly partisan and increasingly unpopular Supreme Court found its jurisdiction routinely boxed out by Congress is hardly a recipe for political stability. With every change of control, a new Congress and president could overturn precedent and lock the court out of its intended role as a constitutional arbiter. Moreover, there would likely be widespread confusion over just what might happen, were Congress to strip the court of its jurisdiction over, say, the state legislative doctrine. Would it then be left to lower courts to adjudicate cases? And what if they disagreed?

Conversely, today’s court majority claims largely unchecked power.

John Marshall, the chief justice who first asserted the power of judicial review, was “notably cautious in dealing with cases that might excite Republican or popular sensibilities,” noted historian Charles Sellers. He sought consensus among the associate justices, Federalists and Republicans alike, operated with “restraint” (Sellers) and led with “lax, lounging manners” (Thomas Jefferson) rather than cutting partisanship. He did so because he understood that the court was a new institution, and were it to lose popular support, the powers it claimed for itself would become either unenforceable, or subject to congressional restraint.

Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary.

Judicial review is well-rooted in American political tradition. But so are checks and balances. To save the Supreme Court from itself, Congress might first have to shrink it.