Posted on by kenferriesblog

Judicial review? Yes? No? Maybe?

Recently, Chief Justice John Roberts offered his thoughts on the role of the Supreme Court: “In our Constitution, the judiciary is a co-equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president.”

Justice Roberts is talking about a concept called “judicial review.” The idea is that the Supreme Court, and the federal judiciary generally, have the power to review the acts of the other co-equal branches, executive and legislative, and rule upon the constitutionality of their acts. Should the court find unconstitutionality, the presumption is that the other branch is blocked from continuing to act “unconstitutionally.”

Interestingly, and perhaps significantly, there is nothing in the Constitution about “judicial review”.

It isn’t there.

There is no legislative action that codifies the concept of “judicial review” into law.

It isn’t there.

“Judicial review” traces its pedigree back to a single legal case decided by the Supreme Court in 1803, Marbury v. Madison.

Without getting sidetracked into the weeds, the Marbury decision held that the federal courts could not enforce provisions adopted by Congress that violated the Constitution. In denying itself the power to enforce an unconstitutional provision, the Supreme Court claimed the power to render decisions concerning the constitutionality of the actions of a co-equal branch. A review of the matter at issue – by the court – was necessary to determine the question of constitutionality in the first place, i.e. Judicial Review.

It had always been presumed that the federal courts could review state actions. If an action by a state was determined to be contrary to the provisions of the federal Constitution, the court could nullify the state action as being “unconstitutional.”

The Marbury case was different. What the court was reviewing was not a state action, but the action of a co-equal branch of the federal government.

Again, there was not then, nor is there now, any statutory or constitutional basis for such a power.

Nevertheless, over time, the outcome in Marbury v. Madison became accepted case law. Judge Roberts’ statement accurately states the current understanding of what is “judicial review.” For more than 220 years, this landmark decision crafted by the legendary Chief Justice John Marshall has defined the balance between the judicial branch and the other two co-equal branches,

But is that the end of the matter?

When asked recently if he was responsible for upholding the Constitution, our current president pleaded ignorance (never mind that oath he swore on Jan. 20, 2025) and passed off the question of “whose” responsibility it was to his “brilliant lawyers.”

Brilliant lawyers are still capable of coming up with less than brilliant answers, especially if the prime qualification for their job is unwavering loyalty to a single individual.

If, as Roberts claims, the federal courts have the “authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president,” in the absence of specific constitutional or statutory authorization, from whence does this “authority” come?

Is “judicial review” simply a power created by the federal judiciary by itself, for itself? If this is the case, are the other two branches bound by the pronouncements of this co-equal branch?

In other words, if the courts find something to be unconstitutional, is that finding merely advisory, or is it binding, on the other branches? Can the other branches come up with their own findings and act upon them?

Recently, presidential advisor Stephen Miller commented that the “Constitution was the supreme law of the land.” Note that he did not say that the Constitution,   “as interpreted by the Supreme Court” was the supreme law of the land.

Can a president, relying on the advice of his “brilliant lawyers” and convinced in his own mind that he has the power to do so, come up with his own interpretation of the Constitution and act upon it in defiance of the court’s interpretation?

Andrew Jackson, our president’s favorite president, came very close to doing precisely that in the forced removal of the Cherokee nation from Georgia to what later became Oklahoma.

Should our president defy the judiciary, what power does the judiciary have to block him? Alexander Hamilton called the judiciary the “least dangerous” branch of government because it had neither the “power of the sword” (the law enforcement powers controlled by the executive) nor the “power of the purse” (access to funds controlled by Congress) to enforce it decisions.

The power of the court rests on nothing more substantial than the willingness of the other branches to follow a more than 220-year-old tradition of deference to the court’s interpretation of the law and public support for its decisions, in other words, public pressure. If public opinion of the Roberts court is nearing the basement at about a 40 percent approval rating, it might not be wise to bet the farm on the public’s rallying to the court’s defense in the case of a showdown between the executive and judicial branches. The third branch, the legislative branch, has been broken for years as too many of its members care more about keeping their jobs than doing their jobs. It would likely be a non-factor in any presidential powerplay.

If acceptance of the ruling in Marbury v. Madison were to be aggressively challenged, the outcome could be far from certain.  A result putting Marbury v. Madison into question could lead to major chaos by kicking away one of the foundational supports of the entire judicial system to satisfy the druthers of a president who has demonstrated his predilection to operate in a chaotic atmosphere.

Hopefully, none of this will ever happen.

But what if it does?

Posted on by kenferriesblog

Of fireworks and presidents

It occurs to me as I sit here listening to the battle between West Taylor Street and West Jackson Street as to which can more loudly celebrate the 248th anniversary of our Declaration of Independence, that when the 249th anniversary rolls around, while the explosives may be similar, the realities underlying the pyrotechnics may be much different – perhaps forever.

I refer, of course, to the fact that that there is a presidential election in November.

On the one hand, we have a guy who’s done not badly over the last three and a half years in the Oval Office, especially given an evenly split Senate and an openly adversarial House.

Lest we forget, after a lifetime of public service, he had an unmitigatedly disastrous 90 minutes of a debate a couple of weeks ago.

In fairness, the content of his remarks wasn’t all that bad, but the optics of their delivery were terrible.

And, oh yeah, he’s an old man.

On the other hand, we have a man who did visually better in the debate, even if some of his remarks were non-responsive, bordered on the incomprehensible, or were outright lies.

And, oh yeah, he’s another old man.

I know what follows is going to anger many of my fellow citizens, especially here in Kokomo, but if you wanted to be alliterative, an argument can be made that he is also a fraud, a felon, and a fascist.

The so-called university bearing his name was shut down as a fraudulent con. After going through the American criminal justice system, with all the presumptions of innocence that entails, he was unanimously found guilty as a felon. If you listen to his pronouncements on how he will proceed should he be re-elected, fascist is an apt description.

Harsh, but it is what it is.

I don’t expect to change any minds with this recitation of flaws in the candidates. But there is another recent development that means we should be making decisions with our eyes wide open.

Our Supreme Court has fallen into the trap its most honored jurist, John Marshall, feared the most, it has become political, bending over backwards to advance one political agenda at the expense of another.

In its most recent decision involving presidential immunity, a majority of the court has wandered far down the trail towards what is called, in the political science business, a “unitary presidency.”

Essentially, this means the idea of three co-equal branches of government, as set out in the Constitution, is consigned to the scrapheap of history. In its stead is established an imperial presidency wherein the actions of that branch are beyond challenge assuming the president is acting within their “official” duties – of which they are the “decider-in-chief” as to what is official, or unofficial.

The most contentious of the debates during the Constitutional Convention of 1787 involved the office of the chief executive officer, i.e. the president.

The question: How to give that officer enough power to effectively lead the new-born nation – but not so much power as to become, in all but name, a king.

And in the back of their minds, especially in that of James Madison, how to provide enough restraint on the office, for example, through the creation of a system of checks and balances, for the nation to survive a less than virtuous occupant at the head of the executive branch.

Such restraint is antithetical to the idea of a unitary president.

There “we the people” have it – a contest between a candidate who, while old, has done nothing to indicate a desire to upend the Constitution and 248 years of a government with three co-equal branches, and another, also old, who appears to desire to reimagine the office to his own personal benefit and has a Supreme Court apparently willing to run interference to allow such re-imaginings to become reality.

Think well about the choices. If current trends are carried to their likely conclusion, the people’s ability to make free choices in the future may be seriously circumscribed.