Part Two: Twentieth Century Cases

Already in Hylton v. United States in 1796, Justice Chase stated that he was very wary of the power of judicial review and would exercise it only in a “very clear case.” Over the years, in many different opinions, the Court has repeatedly stated a reluctance to exercise judicial review if it can decide a case without doing so. In the 1936 case of Ashwander v. Tennessee Valley Authority, Justice Brandeis collected many these statements and organized them into seven general reasons for not considering the constitutionality of a government action if the case can be properly decided without doing so. A few years later, in Justice Rutledge’s opinion of the court in Rescue Army v. Municipal Court (1947), he made reference to Justice Brandeis’s by then well-known concurrence. Rutledge said: “The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.” This reluctance can be noted in the fact that typically less than one-third of the Court’s written opinions each term rest on considerations of constitutionality or judicial review.

The last case I want to refer to, however, gives a different impression. The civil rights movement in the 1950s and 1960s provoked a tumultuous time in the South. A number of southern states and their governments simply refused to abide by the rulings of federal courts, a situation that is strikingly similar to the one witnessed in Martin v. Hunter’s Lessee. Out of a felt need for a strong reassertion of federal judicial supremacy, the Court in Cooper v. Aaron (1958), issued an opinion that was not attributed to just one justice, as the opinions usually are, but to each of the individual justices on the Court. Each justice was named as an author. The need for forceful assertion was reflected later in the opinion by an assertion that some scholars have called the most extreme claim of the Court’s authority in American history. The justices, citing the Supremacy Clause and Marbury v. Madison, made the following argument: (1) The Constitution is the supreme law of the land. (2) It is emphatically the province and duty of the judicial department to say what that law it. Therefore, (3) “[i]t follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown [v. Board of Education] case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’” The statement seems to amend the very Supremacy Clause the Court was relying upon in its opinion to make the clause read “the Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States; and all interpretations of the Constitution which a majority of the members of the Supreme Court agree to at any given time, shall be the Supreme Law of the Land.” “Hard cases make bad law,” is the old axiom, and the statement in Cooper that makes the will of a Supreme Court majority the supreme law seems to bear this out.