The Court That Says No

Look for it and it isn't there

Nine people, none of them elected, can look at something Congress passed and the president signed, and cancel it.

That is an enormous power, and everybody knows the Court has it. So the natural assumption is that somebody wrote it down.

Article III is the part of the Constitution about the courts. It is the shortest of the three branch articles — under a thousand words. It sets up one Supreme Court, lets Congress create the lower courts, lists the kinds of cases federal courts may hear, and defines treason. It does not say the Court may strike down a law. Neither does any other article, and neither does any amendment.

So where did the power come from?

A case about a job

In 1801 a man named William Marbury was appointed a justice of the peace in the District of Columbia. The paperwork was signed but never delivered before the administration changed hands, and the new secretary of state — James Madison — would not hand it over.

Marbury sued to get his job. He asked the Supreme Court for an order forcing Madison to deliver the commission, using a route Congress had written into the Judiciary Act of 1789.

On February 24, 1803, Chief Justice John Marshall delivered the decision. Marbury lost. And that is the part that makes the case famous, because of the reasoning Marshall used to make him lose.

Four moves, in order

Marshall's opinion is a chain, and the order matters more than any single link. Press through it one move at a time and watch where it ends up.

Nine people, appointed for as long as they like

Two more things everyone assumes are in the Constitution, and are not.

Nine is not constitutional. Article III says there shall be a Supreme Court and leaves the size to Congress, which has set it six times:

"Lifetime appointment" is an inference. The actual words in Article III are that judges hold their offices during good Behaviour. No term, no retirement age, no renewal. In practice that means until they resign, retire or die — or, in principle, until Congress removes them by impeachment, which has happened to a Supreme Court justice exactly once, in 1804, and the Senate acquitted him.

That design is deliberate. A judge who never faces re-election never has to worry about whether a ruling will be popular. The trade is exactly what you would expect: the same insulation that lets a judge rule against a president also means the public has no direct way to remove one who they think is doing it badly. The longest anyone has served is 36 years — William Douglas, from 1939 to 1975.

What the Court cannot do

The branch that can cancel a law sounds unstoppable. It is heavily constrained, and almost none of the constraints are the ones people guess. Sort each of these and read why.

1937: the year the number nearly moved

If Congress can set the number of justices with an ordinary law, an obvious thought follows: a president unhappy with the Court could ask Congress for more seats and fill them.

In February 1937 President Franklin Roosevelt did exactly that. His bill would have let the president appoint an additional justice for every sitting justice over the age of seventy, up to six more — which would have taken the Court to fifteen. Roosevelt had just been re-elected in a landslide, and his party held very large majorities in both chambers.

It failed. The Senate Judiciary Committee sent the bill to the floor with a report recommending against it, calling it an invasion of judicial power that had never before been attempted in the country. On July 22, 1937 the Senate voted 70 to 20 to send the bill back to committee, which finished it.

The part worth carrying: the Senate that stopped it was controlled by the president's own party. This was not one party blocking another. It was a chamber deciding that a thing it clearly had the legal power to do was a thing it would not do — and the number has not moved since 1869.

Whether that restraint was wisdom or a missed opportunity is argued about to this day, and the argument runs in both directions inside both parties. What is not argued about is the vote count.

And the power has been used badly

One more thing belongs here, because an episode that only showed judicial review working well would be selling you something.

The first time the Supreme Court struck down an act of Congress was Marbury, in 1803. The second time was 1857, in Dred Scott v. Sandford, where the Court held that the Missouri Compromise was unconstitutional and that Black Americans could not be citizens. Fifty-four years passed between the first use of the power and the second, and the second is now near-universally regarded as the worst decision the Court has ever issued.

It took a civil war and the 13th and 14th Amendments to undo it.

So the honest summary of judicial review is not that it is a safety net. It is a power that has been used to strike down laws people are glad are gone and laws people wish had stayed, held by nine unelected people who cannot be voted out. The people who designed the insulation knew exactly what they were trading for it, and whether the trade was a good one is a real argument that serious people have been having since 1803.

Five things to keep