In our system of government, the Supreme Court has the authority to declare laws unconstitutional. In our nation's formative years, this authority -- the power of "judicial review" -- was seen as an essential check against the dangers of unrestrained democracy. As James Madison explained when he proposed the Bill of Rights, "independent tribunals of justice will consider themselves... the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights" guaranteed by the Constitution.
Alexander Hamilton added that constitutional freedoms could "be preserved in practice no other way than through the medium of the courts of justice." The "independence of the judges," he reasoned, was necessary "to guard the constitution and the rights of individuals from the effects of those ill humours which... sometimes disseminate among the people themselves." Judges, he insisted, have a duty to resist invasions of constitutional rights even if they are "instigated by the major voice of the community."
Faced with constitutional challenges to government actions, courts have two alternatives: they can uphold the law and allow it to be enforced or they can declare it invalid. When they uphold the law, they permit the majority to have their way; when they invalidate the law -- and exercise the power of judicial review -- they restrict the majority's freedom of action. The existence of judicial review matters only when the courts hold a law unconstitutional. A central question in evaluating this element of our constitutional structure is whether courts have exercised this authority wisely.
There are at least two ways of answering that question. First, lawyers, legal scholars, and other experts can decide, in their professional judgment, whether particular decisions reached the "correct" legal result. Of course, lawyers, legal scholars, and other experts often disagree quite sharply over this question, depending on their preferred approach to constitutional interpretation. There are many different approaches, honestly held, and they often produce different conclusions. A justice who endorses "originalism," for example, will often disagree with one who endorses the notion of a "living" Constitution.
A different way of answering the question, focused less on law than on policy, asks whether this is a better nation because the Supreme Court has the power of judicial review. That is, has the Supreme Court's exercise of the authority to hold laws unconstitutional -- in defiance of the wishes of the majority -- made this a better or worse nation?
To give you an opportunity to answer that question for yourself, I provide below a list of twenty important decisions over the past sixty years in which the Supreme Court has held laws unconstitutional. Decide for yourself whether, in your judgment, each one of these decisions was good or bad for the nation, and then make your own assessment whether the overall result is positive or negative:
1. The government cannot constitutionally segregate students in separate black and white schools. Brown v. Board of Education (1954).
2. When the police commit an unconstitutional search, government cannot constitutionally use the evidence obtained in the search against the victim of the unconstitutional search. Mapp v. Ohio (1961).
3. The government cannot constitutionally have state-sponsored prayers in the public schools. Engel v. Vitale (1962).
4. The government has a constitutional obligation to provide a lawyer to persons accused of crime if they are too poor to afford one themselves. Gideon v. Wainwright (1963).
5. The government cannot constitutionally draw legislative districts in a way that departs from the principle of one person/one vote. Reynolds v. Sims (1964).
6. The government cannot constitutionally prohibit married couples from using contraceptives. Griswold v. Connecticut (1965).
7. The police cannot constitutionally arrest a person and then interrogate him in custody without first warning him of his right to remain silent. Miranda v. Arizona (1965).
8. The government cannot constitutionally require people to pay a poll tax before they are permitted to vote. Harper v. Virginia Board of Elections (1966).
9. The government cannot constitutionally deny government jobs to people because they were once members of the Communist Party. Elfbrandt v. Russell (1966).
10. The government cannot constitutionally wiretap phone calls without probable cause and a warrant. Katz v. United States (1967).
11. The government cannot constitutionally prohibit people of different races from marrying. Loving v. Virginia (1967).
12. The government cannot constitutionally terminate a welfare recipient's benefits for cause without first providing a hearing. Goldberg v. Kelly (1970).
13. The government cannot constitutionally prohibit the publication of the Pentagon Papers without proving that the publication would cause a clear and present danger to the national security. New York Times v. United States (1971).
14. The government cannot constitutionally prohibit a woman from terminating an unwanted pregnancy in the first six months of pregnancy. Roe v. Wade (1973).
15. The government cannot constitutionally discriminate against people because of their sex. Craig v. Boren (1976).
16. The government cannot constitutionally prohibit private homosexual conduct between consenting adults. Lawrence v. Texas (2003).
17. The government cannot constitutionally prohibit individuals from owning handguns. District of Columbia v. Heller (2008).
18. The government cannot constitutionally prohibit corporations from spending unlimited amounts of money to support the election of political candidates. Citizens United v. Federal Elections Commission (2010).
19. A public university cannot constitutionally take race into account in its admissions decisions in order to create a more diverse student body. Fisher v. University of Texas (2013).
20. The federal government cannot constitutionally deny federal marriage benefits to same-sex couples who are lawfully married under state law. United States v. Windsor (2013).
How many of these 20 decisions do you think reflect good policy for the nation? Do you agree with the Supreme Court that on such matters the People should not be permitted through their elected representatives to act contrary to these decisions? What do you think led you to think that some decisions were "good" while others were "bad? Can you discern any principle that leads you to judge some decisions as "good" and others as "bad"? Or is it just a matter of opinion? When all is said and done, has the Supreme Court's exercise of the power of judicial review been good or bad for the nation? Do we need the Supreme Court?