The Supreme Court Decision: Consensus or Coercion? The U.S. Supreme Court is the most powerful court in the world prima- By Joseph Grcic rily because of the power of judicial review. Judicial review and other he power of judicial review is the sweep- factors give the Supreme Court excessive power not explicitly justified ing power to declare that acts of Congress in the U.S. Constitution. Given the vagueness and incompleteness of Tand state legislatures, decisions of state the Constitution, every Supreme Court decision is an interpretation and and federal courts, and acts of the President are is, in effect, a constitutional amendment. It follows that Supreme Court unconstitutional. The U.S. Supreme Court is the decisions must be consistent with the constitutional requirement for an most influential court in the world, not only be- amendment, which means that Supreme Court decisions, assuming the cause it is the highest court of the most powerful country in the world but also because it has the current number of nine justices, must be a supermajority of a minimum power of judicial review. The current precedent of six votes, not the current five, to decide cases in a constitutionally of 5-4 majority rule, however, gives the Supreme normative manner. The 6-3 rule would also promote what John Rawls Court excessive power that is not explicitly justi- calls the “stability” of an increasingly diverse society. fied in the Constitution. This power needs to be 52 | The Federal Lawyer | June 2007 curbed by requiring that the Court’s decisions, assuming to declare a state law unconstitutional if the union is to be the current number of nine justices, consist of a superma- preserved.6 This may well be so, and the Judiciary Act of jority of a minimum of six votes, not the current five, to 1789 explicitly gives the Court this power, but it does not decide cases in a constitutionally normative manner.1 mean that federalism implies that the Supreme Court must There is no constitutional basis for the current 5-4 ma- have the power to declare an act of Congress unconstitu- jority process. The Constitution does not specify the num- tional.7 ber of justices the Supreme Court must have, nor does it Judicial review is also problematic for reasons dealing specify the kind of majority required to definitively decide with the political nature of the appointment and confirma- a case. In fact, the history of Supreme Court decision tion process and the very nature of the Constitution making shows that it evolved over time. During its early itself.8 The Supreme Court is political in the broad sense years, the justices of the Supreme Court, following the of the term: its decisions influence the distribution of the English courts, delivered their opinion seriatim;2 that is, rights, duties, and interests of millions of the country’s cit- each justice stated his opinion with no majority opinion izens. The Court is also political in the narrow sense of per se being defined. During Justice Marshall’s tenure as the term as a result of the influence of justices’ partisan Chief Justice (1801–1835) the Court began offering a sin- ideologies. Justices are appointed by the President for at gle “opinion of the court” in order to make the decision least partly political reasons in that the President seeks more authoritative and compelling. justices whose ideology and understanding of the Consti- Moreover, the power of judicial review is not even ex- tution is consistent with his own. Presidential election plicitly granted by the Constitution but was claimed for campaigns use the idea of likely Supreme Court appoint- the Court by Justice Marshall in his opinion in Marbury v. ments as reasons to vote for or against a particular candi- Madison in 1803.3 Judicial review, whose historic origins date. The Senate often votes on Supreme Court nominees can be found in English common law,4 has been defend- along party lines. During the confirmation process, sena- ed by asserting the existence of a divine law or natural tors examine nominees and question them about their ju- law that is higher than positive law to which positive law dicial philosophy and overall ideology in order to deter- must conform in order to be valid. The concept has been mine their political leaning and likely future rulings once implied based on the notion of due process found in the they are on the Court. Moreover, without an appointment Magna Carta of 1215, which held that the king was not with a mandatory specific end point, justices often post- above the law. And the idea of the social contract, as pone their retirement until a President with similar politi- found in the writings of John Locke and in the Declara- cal ideology is elected and nominates a replacement who tion of Independence, held that there are certain natural has a similar ideology. rights that define and limit government and that it is the There are other concerns with the Supreme Court as job of the courts to define these rights. These historical well. As a formal institution, the Court has rules and a justifications are the background of Marshall’s defense of structure that define its role within the federal system and judicial review. society as a whole. However, every institution has cus- In the historic case of Marbury v. Madison, Justice Mar- toms, personalities, friendships, and ideological differ- shall gave the classic defense of judicial review.5 Howev- ences that also play a role in the way the Court functions. er, Marshall’s case for judicial review is not particularly The role of the swing vote on the Court is of particular compelling. First, Marshall argued that the purpose of the concern. The swing voter is usually considered a moder- Constitution was to create a form of limited government ate or an independent voter who sometimes votes with and that judicial review performs that function. However, one ideological group and at other times with another. such an argument does not compel the requirement of ju- For example, the now-retired Justice Sandra Day O’Con- dicial review because of the availability of other instru- nor is a justice who was not an obvious member of any ments to limit government, including regular elections, camp or ideological group of the Court. The power of the checks and balances, and the Bill of Rights. Marshall also swing justice is too great in a 5-4 rule system. No justice, noted that justices take an oath to support the Constitu- and no justice’s ideological preferences and personality, tion. But this too is not particularly significant, because all should influence the Court’s decision to such a degree. A judges, members of Congress, and presidents take the rule of 6-3 majority would reduce the power of any one same oath. Finally, Marshall argued that the Supremacy justice and thus make the decision less a reflection of the Clause of the Constitution (Article XI) states that the Con- ideology or idiosyncrasies of one judge and give the deci- stitution “shall be the supreme law of the land.” However, sion a broader rationale; a 6-3 majority would also shift most constitutional historians believe that the Supremacy power to the states in the event that a majority of six jus- Clause was addressed to the state legislatures and state tices is not attained. courts; therefore, the clause does not necessarily imply The justices’ personalities, ideologies, and limitations the existing practice of judicial review. raise a related problem: the possibility of error. In a con- Another defense of judicial review is related to the idea troversial 5-4 ruling on gay rights in Bowers v. Hardwick of federalism. Although federalism is not clearly defined, in 1986, Justice Lewis Powell voted with the majority. Lat- it is understood as a sharing of governing power between er, after he retired, he admitted that he had “probably the states and the federal government. Justice Oliver Wen- made a mistake.”9 The Bowers decision was overturned dell Holmes argued that the Court must have the power later in Lawrence v. Texas (2003). Of course, a 6-3 majori- June 2007 | The Federal Lawyer | 53 ty ruling would not have rendered a decision in favor of terminate to such a degree as to be useless; rather, the gay rights at the time of Bowers, but it would have left it idea holds that the semantic meaning of the words of the up to the states to decide the issue. Constitution is sufficiently clear to allow the Court to The nature of legal reasoning raises an additional con- reach definitive judgments in most cases. Defenders of cern about the Supreme Court’s decision-making process. this view hold that, without textualism, there would be no Legal reasoning is by no means a deductive science; reason to have a Constitution at all.15 rather, it is inductive and analogical.10 Legal decisions There are problems with textualism as a way to inter- must take into account the Constitution, the various pret the Constitution and limit the Court. Although some statutes, the facts, and precedent. Analogical arguments terms of the Constitution are clear, such as limiting a Pres- are based on treating like cases alike, but no two cases ident’s term to “four years,” there are also pivotal terms in are exactly alike. Whether two cases are deemed “alike” the Constitution, such as “equality” and “rights,” which depends on the “facts” and the “relevant” legal principles, have an open texture and are fundamentally indetermi- both aspects of which are at least in part a function of the nate.