Judicial Review Isn’t a Bug, It’s a Feature

Anthony Sanders · January 8, 2020

In Dissent, Yale law professor Samuel Moyn has a pretty blistering critique of progressives who rely upon the courts to further progressive policies. Moyn argues that most of the time in American history the courts have been the enemy of progressive causes, labeling the system giving them the power to invalidate legislation “juristocracy.” It was only during the postwar era, he states, that “[a]nxious progressives looked to the judiciary to guard against mob rule while ushering in modest reforms, laying the groundwork for the golden age of liberal activism.” This was short-lived, Moyn claims, and led to “very meager” returns for the left. After that, with the Burger, Rehnquist, and Roberts courts it’s been all downhill.

Further, he argues that on some issues even the Warren Court was out to lunch: “[E]ven at the high tide of their political ascendancy, liberals couldn’t get the Supreme Court to commit to distributive entitlements of any kind. Neither a welfare state for the least advantaged, nor broader egalitarian justice in the country, is there for even the most creative judges to find under the Constitution’s authority—even assuming a transformed bench.” Moyn sums it up by claiming “progressives have little to lose and much to gain by leaving juristocracy to the enemies of democracy.”

I thought I’d briefly address a couple points, minor and major.

The minor one is that historically “juristocracy” has not been nearly as powerful as he implies. As scholars have pointed out, the courts of the Lochner era upheld much more “progressive” legislation than they invalidated. Additionally, the courts today are hardly ruling laws unconstitutional willy-nilly. As we at IJ found a few years ago, the Supreme Court invalidates a paltry far less than 1% of legislation that is passed. Additionally, Moyn implies that judicial review was only discovered in the mid nineteenth century by conservatives misinterpreting Marbury v. Madison. Actually, whatever your reading of Marbury, judicial review was established in state and federal courts by that time as a full fledged aspect of our constitutional order (an order that did not exist, by the way, before 1776 because there were no constitutions, as we now understand them, before then; judicial review under a written constitution is only a little older than it mathematically could be).

The major point is that this isn’t a bug, it’s all a feature. Judicial review of legislation is not an “enemy” of democracy, but it isn’t supposed to be its handmaiden either. And that really seems to be Moyn’s critique. Which is fine if you’re a democratic maximalist. But that’s not the system we have. If you accept that we live under a constitution and a judiciary beholden to it (as the U.S. Constitution explicitly demands of federal and state judges), you will have judges who find the other branches to have acted unconstitutionally, as well as find state and local government to have acted unconstitutionally. It’s hardly surprising that the Supreme Court at times finds what Congress has done to violate the Constitution. What’s surprising is that it doesn’t happen a lot more, given the limits of Congress’s authority under Article I and the Tenth Amendment. Of course, keen observers will know that this is because of the shredding of the doctrine of enumerated powers and the expansion of the Commerce Clause. Progressives historically have not liked courts enforcing constitutional limits on Congress, but they shouldn’t be surprised when it happens.

As for the states, the Fourteenth Amendment says “No State shall make or enforce any law which shall abridge . . .” That’s pretty clear language that laws which come before the courts might “abridge” certain things. It’s built into the very structure of post-1868 federalism.

And this doesn’t disagree with Moyn’s advice for progressives, if by “progressive” he means someone who wants to pass a lot of legislation. Constitutions often make passing legislation hard. My point also doesn’t disagree with his statement that the courts haven’t, and probably won’t, find welfare rights in the Constitution. They’re not in there! Now, some state constitutions do have positive rights (including to public education, but not only public education). But this demonstrates a practicality of judicial review. Judges find it relatively straightforward to rule a law unconstitutional and unenforceable. That’s easy; the executive then just can’t enforce the law. However, positive rights are much murkier and harder to enforce, even if they’re set forth explicitly in a constitution. All the state court litigation over the last few decades about adequate funding for public education has illustrated this hard fact.

Thus, if you’re going to have a written constitution you’re going to have judicial review. And that judicial review will probably only be very useful when it comes to what the government can’t do to you, not what it must do for you. Those who think that is “juristocracy” and a bad idea because it limits progressive legislation may have a point. But their beef isn’t really with judicial review. It’s with constitutionally limited government.