WHEN THE Senate Judiciary Committee begins confirmation hearings for Judge Sonia Sotomayor tomorrow, Americans will have an opportunity to evaluate her qualifications and judicial philosophy. But it may be more illuminating for us to reexamine the powers of the Supreme Court itself - especially its power to declare unconstitutional laws that are enacted by the democratically elected branches of the federal government. In the Supreme Court's ruling of June 22 on a challenge to the landmark Voting Rights Act, Justice John Roberts wrote that finding an act of Congress unconstitutional is the "gravest and most delicate'' task the justices have. Grave and delicate, indeed.
Let us for a few minutes think like true "originalists'' who respect the original intentions of the framers of the Constitution when they drew up their blueprint for American government in 1787.
Why did the framers give the court that extraordinary veto power? The answer: They did not. This was not an oversight. Judicial supremacy had no place in their carefully calculated blueprint for checks and balances.
No branch of government was to be supreme. The framers, many of them lawyers, were meticulous thinkers. They did not include a judicial veto because they did not want it in the hands of unelected lifelong appointees.
How, then, was judicial supremacy established? By a masterstroke at the hands of the most brilliant chief justice in American history, John Marshall. A staunch Federalist hostile to the Jeffersonian Republicans, Marshall saw an opportunity in an otherwise routine case in 1803, Marbury v. Madison, to "bootleg'' judicial review into the Constitution. But in his quest to make the Supreme Court the ultimate arbiter of the Constitution, he faced a daunting obstacle - the Jeffersonians would laugh in his face if his court tried to strike down a bill passed by Senate and House Republicans. Marshall's solution? His court invalidated a minor act that had been designed to give the Supreme Court a routine, essentially administrative power.
The Jeffersonians were outfoxed. Just as Marshall hoped, this ostensibly self-limiting act on the part of the Supreme Court actually bestowed upon the court its precedent for future vetoes. But it was not until decades after Marbury, in the Dred Scott case in 1856, that the court struck again, in effect invalidating the Missouri Compromise and helping to precipitate the Civil War. And after the war, despite new constitutional amendments guaranteeing rights of due process and equal protection to all, those new rights became the province of a reactionary Supreme Court that again and again limited them. For how much longer, in an increasingly democratized country, would the nation tolerate this extra-constitutional judicial power?
The crucial test came in 1937, after Franklin Roosevelt's triumphant reelection to a second term. FDR was thwarted and outraged by a Republican-appointed Supreme Court that killed some of his key New Deal laws and threatened to veto others. But he bungled his attack on the court. Instead of striking at the core problem of judicial power, the president chose to go on a head-hunting expedition. He proposed that for every justice who declined to retire at the age of 70, he would have the power to appoint another one to the high court, thereby allowing him to add as many as six new justices to the court - a plan that was easily blocked in Congress.
Today President Obama faces a situation much like FDR's predicament - five activist conservative justices confronting four liberals in a nation facing multiple crises. Sotomayor joining the bench would not soon change that doctrinal balance - although, as a former teacher of constitutional law, Obama knows that his appointees may change their judicial philosophy during their tenure. If he were confronted by a conservative majority, would Obama offer his own court plan? Most unlikely. The president's leadership style appears to be much less confrontational than FDR's. And yet, in the longer run, a clear and intense showdown between a president and a Supreme Court is inevitable.
The reason is both historical and systemic. For over two centuries - from Jefferson's collision with the court to the present court's ideological differences with the president and Congress - fundamental conflicts have erupted every generation or so between the court and the elected branches of government. This is not happenstance. Rather it is born in the inevitable clash, built into our system, between the democratically elected branches and lifetime justices unaccountable to voters. Throughout the court's history, those justices, many of whom serve for decades, have often been behind the times, clinging to outdated ideologies and attitudes that Americans had repudiated at the polls. In the future, we may well face ideological and political conflict between those branches of government deeper than anything we have seen since the Civil War.
Would there be any way to avert the next, perhaps most destructive collision between the Supreme Court and the elected branches? A rational solution would be to head off a crisis by legitimizing the power of judicial review through a constitutional amendment. That process would give Americans the opportunity to debate the tradition of judicial review by an unelected court vs. the unrestricted power of the democratically elected branches of government acting together. The amendment process, however, would be unfair to supporters of judicial review because a constitutional amendment must run the gauntlet of ratification by legislatures or conventions in three-quarters of the states, and a small minority of only 13 states could block such an amendment.
More probable than a constitutional amendment would be another economic, social, or military crisis challenging our whole system of checks and balances and especially judicial supremacy. Confronted by slowdown and stalemate, a president could boldly proclaim a national emergency, enabling him to declare that he would refuse to accept a Supreme Court veto of his program unless and until the power of judicial review was established in the Constitution through adoption of a constitutional amendment. Doubtless the typically slow amending process would be sped up in a national emergency, but, in any event, the president would defy the Supreme Court without such a fundamental reform.
Does such a constitutional crisis in the 21st century seem implausible? Throughout our history Americans have suddenly faced completely unanticipated crises and cataclysms, from the Civil War to the Great Depression, two world wars, and 9/11. It is impossible to know if such a critical emergency might explode during the Obama administration.
But, in that case, the president would doubtless be reminded that he wrote, in "The Audacity of Hope,'' that the Constitution is "not a static but rather a living document, and must be read in the context of an ever-changing world.''