The term "judicial legislation" appears to be something of an oxymoron, as the Constitution clearly assigns the principal task of legislation to the Congress. The Constitution does, of course, give the President a role in the legislative process through the veto power and through his power to recommend legislation to Congress that "he shall judge necessary and expedient." The Framers explicitly rejected, however, a similar role for the judiciary. Several attempts to create a council of revision, composed of the executive and members of the Supreme Court, to review the constitutionality of proposed legislation, were defeated in the constitutional convention. The most effective arguments against including the Court in a council of revision were derived from considerations of the separation of powers. Elbridge Gerry, for example, remarked that including members of the Supreme Court in a revisory council "was quite foreign from the nature of the office," because it would not only "make them judges of the policy of public measures" but would also involve them in judging measures they had a direct hand in creating. Assigning ultimate legislative responsibility to the Congress apparently reflected the Framers' belief that, in popular forms of government, primary lawmaking responsibility should be lodged with the most representative branches of the government. In james madison ' s words, "the people are the only legitimate fountain of power."
Justice felix frankfurter expressed the same view in his concurring opinion in American Federation of Labor v. American Sash and Door Co. (1949). "Even where the social undesirability of a law may be convincingly urged," he said, "invalidation of the law by a court debilitates popular democratic government.… Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests—the people." Frankfurter continued his brief for judicial restraint by arguing that because the powers exercised by the Supreme Court are "inherently oligarchic" they should "be exercised with rigorous self-restraint." The Court, Frankfurter laconically concluded, "is not saved from being oligarchic because it professes to act in the service of humane ends."
The modern Supreme Court is not so easily deterred as Frankfurter was by charges of oligarchy. Since the landmark brown v. board of education decision in 1954, the Court has actively and overtly engaged in the kind of law-making and policymaking that in previous years was regarded as exclusively the province of the more political branches of government. William Swindler explained the Court's transition from judicial deference to judicial activisim in these terms: "If the freedom of government to act was the basic principle evolving from the Hughes-Stone decade, from 1937–1946, the next logical question—to be disposed of by the warren court—was the obligation created by the Constitution itself, to compel action in the face of inaction. This led in turn to the epochal decisions in Brown v. Board of Education,baker v. carr, and gideon v. wainwright."
Some scholars have argued that it was the identification of equal protection rights as class rights and the attendant necessity of fashioning classwide remedies for class injuries that gave the real impetus to the Court's judicial activism in the years immediately following Brown. The Court, in other words, effectively legislated under its new-molded equity powers. (See institutional litigation.)
The Court's legislative role is usually justified in terms of its power of judicial review. But judicial review—even if it be regarded as a necessary inference from the fact of a written constitution—is not a part of the powers explicitly assigned to the Court by the Constitution. The Court made its boldest claim for the legitimacy of judicial legislation in cooper v. aaron (1958). Justice william j. brennan, writing an opinion signed by all the members of the Court, outlined the basic constitutional argument for judicial supremacy. Brennan recited "some basic constitutional propositions which are settled doctrine," and which were derived from Chief Justice john marshall's argument in marbury v. madison (1803). First is the proposition, contained in Article VI of the Constitution, that the Constitution is the supreme law of the land (see supremacy clause) ; second is Marshall's statement that the Constitution is "the fundamental and paramount law of the nation"; third is Marshall's declaration that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Justice Brennan concluded that Marbury therefore "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the fourteenth amendment enunciated by this Court in the Brown Case is the supreme law of the land.…" The defect of Brennan's argument, of course, is that it confounds the Constitution with constitutional law.
Marshall did indeed say that the Constitution was "the fundamental and paramount law of the nation," and that any "ordinary legislative acts" "repugnant to the constitution" were necessarily void. But when Marshall wrote the famous line relied upon by Brennan that "it is emphatically the province and duty of the judicial department to say what the law is," he was referring not to the Constitution but to "ordinary legislative acts." In order to determine the law's conformity with the Constitution it is first necessary to know what the law is. And once the law is ascertained it is also necessary to determine whether the law is in conformity with the "paramount law" of the Constitution. This latter, of course, means that "in some cases" the Constitution itself "must be looked into by the judges" in order to determine the particular disposition of a case. But Marshall was clear that the ability of the Court to interpret the Constitution was incident to the necessity of deciding a law's conformity to the Constitution, and not a general warrant for constitutional interpretation or judicial legislation. Marshall was emphatic in his pronouncement that "the province of the court is, solely, to decide on the rights of individuals."
"It is apparent," Marshall concluded, "that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." As he laconically noted in the peroration of his argument, "it is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank." For Marshall, Brennan's assertion that the Court's decision in Brown was "the supreme law of the land" would indeed make "written constitutions absurd" because it would usurp the "original right" of the people to establish their government on "such principles" that must be "deemed fundamental" and "permanent." If the Supreme Court were indeed to sit as a "continuing constitutional convention," any written Constitution would certainly be superfluous since, under the circumstances there would be no "rule for the government of courts." After all, by parity of reasoning, if one were to accept Brennan's argument, it would also be necessary to hold that the Court's decision in dred scott v. sandford (1857) was the supreme law of the land. But Dred Scott gave way because forces other than the Supreme Court decided that it was a decision not "pursuant" to the "fundamental and paramount law" of the nation. As John Agresto has cogently remarked; "If Congress can mistake the meaning of the text [of the Constitution], which is what the doctrine of judicial review asserts, so, of course, can the Court. And if it be said that it is more dangerous to have interpretive supremacy in the same body that directs the nation's public policy—that is, Congress—then (especially in this age of pervasive judicial direction of political and social life) an independent judicial interpretive power is equally fearsome for exactly the same reasons."
In swann v. charlotte-mecklenburg board of education (1971) the Court was confronted with the question of the federal judiciary's equity powers under the equal protection clause of the Fourteenth Amendment. At issue was whether the Court could uphold school busing as a "remedy for state-imposed segregation in violation of Brown I." As part of the civil rights act of 1964 the Congress had included in Title IV a provision that "nothing herein shall empower any official or court … to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another … or otherwise enlarge the existing power of the court to insure compliance with constitutional standards." Chief Justice warren e. burger, writing for a unanimous Court, remarked that on its face this section of Title IV is only "designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers." According to Burger these equity powers flow directly from the Fourteenth Amendment—despite the fact that section 5 of the Amendment gives Congress explicit enforcement authority, an authority that was mistakenly restricted by the Court in the slaughter-house cases (1873) and the civil rights cases (1883).
A serious question arises, however, concerning Burger's claim that forced busing is one of the "historic" equity powers of the Court. It was never asserted as such by the Court prior to 1964, and as late as two years after the Swann decision it was still being described by Justice lewis f. powell as "a novel application of equitable power—not to mention a dubious extension of constitutional doctrine." Congress's response to Swann, the Equal Educational Opportunity and Transportation of Students Act of 1972, contained restrictions similar to those included in Title IV. These provisions suffered the same fate as the Title IV provisions, only now the Court was able to use Swann as authority for its ruling.
The Swann rationale derives equity powers directly from the Constitution. But the way in which the Court exercises its equity powers is indistinguishable from legislation. Thus, in effect, the Court now derives what is tantamount to legislative power from the Constitution. Because this power rests upon an interpretation of the Constitution, no act of Congress can overturn or modify the interpretation. Many scholars argue that if the Congress were to attempt to curtail the Court's power to order forced busing under the exceptions clause, the Court would be obligated, under the Swann reasoning, to declare such an attempt unconstitutional, because the Court's obligation to require busing as a remedy for equal protection violations is derived directly from the Constitution.
Judicial legislation incident to statutory interpretation is less controversial, for the Congress can overturn any constructions of the Court by repassing the legislation in a way that clarifies congressional intent. The interpretation of statutes necessarily involves the judiciary in legislation. In many instances the courts must engage in judicial legislation in order to say what the law is. In years past the Court's sense of judicial deference confined such judicial legislation to what Justice oliver wendell holmes called the "interstices" of the law. It was generally believed that the plain language of the statute should be the controlling factor in statutory construction and that extrinsic aids to construction such as legislative history should be used only where they were necessary to avoid a contradictory or absurd result.
The courts are not always the aggressive agents in the process of judicial legislation. In recent years courts have acted to fill the void created by Congress's abdication of legislative responsibility. Many statutes passed by Congress are deliberately vague and imprecise; indeed, the Congress in numerous instances charges administrative agencies and courts to supply the necessary details. This delegation of authority to administrative agencies with provisions for judicial oversight of the administrative process has contributed to the judiciary's increased participation in judicial legislation. This tendency was intensified by the Court's decision in immigration and naturalization service v. chadha (1983), holding the legislative veto unconstitutional. Congress had for years used the single-house legislative veto as a device for overseeing the activities of administrative agencies. But, as Judge Carl McGowan has noted, "the question inevitably recurs as to whether judicial review is an adequate protection against the abdication by Congress of substantive policy making in favor of broad delegation of what may essentially be the power to make laws and not merely to administer them."
The volume of litigation calling for "legislation" on the part of the courts also increases in proportion with the liberalization of the rules of standing. In previous years the Court's stricter requirements for standing were merely a recognition that the province of the judiciary, in the words of John Marshall quoted earlier, "was solely to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion." Liberalized rules of standing tend to produce what Court of Appeals Judge atonin scalia has called "an overjudicialization of the process of self-governance." Judge Scalia reminds us of the question posed by Justice Frankfurter—whether it is wise for a self-governing people to give itself over to the rule of an oligarchic judiciary. James Bradley Thayer wrote more than eighty-five years ago that "the exercise of [judicial review], even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility."
If, on the other hand, the processes of democracy are unsuited for protecting democratic ends—if, that is, in the words of Jesse Choper, it is necessary for the Supreme Court generally to act "contrary to the popular will" to promote "the precepts of democracy"—then the question whether the American people can be a self-governing people is indeed a serious one. It was once thought that constitutional majorities could rule safely in the interest of the whole of society—that constitutional government could avoid the formation of majority faction. Today many scholars—and often the Supreme Court itself—simply assume that the majority will always be a factious majority seeking to promote its own interest at the expense of the interest of the minority. This requires that the judiciary intervene not only in the processes of democracy but also as the virtual representatives of the interest of those who are said to be permanently isolated from the majoritarian political process. If American politics is indeed incapable of forming nonfactious majorities—and America has never had such a monolithic majority—then the American people should give itself over honestly and openly to "government by judiciary," for if constitutional government is impossible, then so too is the possibility of self-governance.
Edward J. Erler
Agresto, John 1984 The Supreme Court and Constitutional Democracy. Ithaca, N.Y.: Cornell University Press.
Erler, Edward J. 1985 Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education. Harvard Journal of Law and Public Policy 8:399–426.
Levy, Leonard W. 1967 Judicial Review, History, and Democracy. Pages 1–42 in Leonard W. Levy, ed., Judicial Review and the Supreme Court. New York: Harper & Row.
Swindler, William 1969 Court and Constitution in the 20th Century. Indianapolis: Bobbs-Merrill.