How High The Court?
William J. Quirk and R. Randall Bridwell
Transaction Publishers, 1995. xv + 143 pgs.
Everyone talks about the Supreme Court, but no one ever does
anything about it. Many Supreme Court decisions have aroused
fierce controversy within the past fifty years: Brown v.
Board of Education and Roe v. Wade are the
most obvious examples. Often, these decisions lack majority
support: but they are the "law of the land," after all.
For many conservatives, the problem with the Supreme Court
lies in its loose construction of the Constitution. Instead of
interpreting the Constitution as originally intended by its
Framers, the Warren Court and its successors, it is alleged,
discover their own political agendas ready-made there. A return
to "strict construction" offers the only hope for a
restoration of sound government.
Judicial Dictatorship is a radical book in the best
sense: it compels readers to rethink their most basic assumptions
about the Court. For Quirk and Bridwell, the problem lies not
with the way the Court has interpreted the Constitution: rather,
they question the entire institution of judicial review.1
Contrary to nearly all other scholars, they hold that the Supreme
Court should not be the ultimate arbiter of the
In their view, America is a democracy, and judicial supremacy
cannot be consistently combined with popular rule. "The
judiciary, led by the Supreme Court, is in the vanguard of the
elite imposing nonmajority values and policies on the country.
They are, as Jefferson said, the 'miners and sappers of
"The traditional view was that the separation of powers
made the legislature and executive responsible for change and the
Court the guardian of continuity and stability. The Court,
however, over the past thirty years, has made itself the major
agent for change--one that operates without democratic check to
accomplish ends that could not be achieved by democratic
process" (p. xv).
The reply to this is obvious. Defenders of the Court will say
that America is not an unlimited democracy, but instead a
democracy restricted by a written constitution. The function of
the courts, culminating in the Supreme Court, is to interpret and
apply the law. Since the Constitution is "the supreme law of
the land," its provisions take precedence over acts of
Congress. If there is a conflict between the two, it is the duty
of the Court to declare the Congressional enactment
unconstitutional. All the more so, then, does the Court have
similar powers over state legislatures.
Quirk and Bridwell do not deny that we are governed by a
written constitution (although they sometimes suggest that,
without frequent revisions, we shouldnt be). They instead
challenge the inference from written constitution to judicial
review. They rightly note that they are not the only scholars to
challenge judicial review. "Historically, the members of the
resistance are an impressive group" (p. xii; I would add to
the books they list on p. xiii the important but neglected work
of L. Brent Bozell, The Warren Revolution).
Nevertheless, one can only repeat that in contemporary
scholarship, their position is one of stunning audacity.
Before confronting their arguments, a preliminary issue
requires consideration. Why not try strict construction? It seems
a much less extreme remedy for judicial usurpation than the
radical surgery our authors propose. Why not, with most
contemporary conservatives, adopt it?
Quirk and Bridwell interpose an objection. "As John C.
Calhoun pointed out, 'strict construction is a 'phantom, a thing
'good in the abstract, but in practice not worth a farthing.
Everybody is for strict construction 'but in fact, it will ever
be found to be the construction of the permanent minority against
the permanent majority, and of course of itself valueless"
Calhouns argument strikes me as not conclusive. His reasoning,
if I have understood him, is this: (1) Everyone claims to be a
strict constructionist; (2) Therefore, the concept "strict
construction" is useless. It is not at once apparent how (2)
is supposed to follow from (1). Let us look at an analogous
argument: (1) Practically everyone claims to be a good person;
(2) Therefore, the concept "good" is useless. I hardly
think this is a sound argument for the view that goodness has no
But of course, even if strict construction is a usable concept
(and I have certainly not shown that it is), this does not refute
the authors case against judicial supremacy. This case has two
main components: first, judicial review has been challenged by
American statesmen of unquestioned standing, in particular Thomas
Jefferson; and second, judicial review is not needed to protect
the rights of minorities. Both arguments, but especially the
first, seem to me strong ones.
The authors show conclusively, through a detailed study of his
correspondence, that Jefferson rejected judicial supremacy. Thus,
in a letter to William Jarvis in 1820, Jefferson wrote: "It
is a very dangerous doctrine to consider the judges as the
ultimate arbiters of all constitutional questions. It is one
which would place us under the despotism of an oligarchy"
(p. 3). On an earlier occasion, he wrote in 1810 that judicial
review allows for a Supreme Court "which from the citadel of
the law can turn its guns on those they were meant to
defend" (p. 3).
Of course, Jeffersons holding this opinion does not make it
true. But this is not the authors point. Rather, their contention
is that if so eminent a statesman as Jefferson rejected judicial
review, it cannot be taken as an entrenched practice not subject
to challenge today.
And Jefferson was not the only eminent figure to reject
judicial review. The authors note that on one occasion John
Marshall himself was willing to abandon judicial supremacy.
"While the trial [of Justice Chase] was going on, John
Marshall, who thought he might be next, offered the surprising
compromise that Congress be authorized to override the Court
rather than remove the judges" (p. 55). (It has, however,
sometimes been contended that Marshall, in the letter to Chase
which they quote, spoke ironically.)
But, it will be said, even if there is historical backing for
the authors case, do we not need judicial review as a way to
protect the rights of minorities? Suppose that Congress abolished
the Bill of Rights, or enacted a law that all redheads be drowned
at birth. Should the Supreme Court stand idly by?
Quirk and Bridwell do not deny that a majority can act badly.
But why rest the rights of minorities in the hands of a tribunal
of Platonic Guardians, assumed to be superior in wisdom to the
people? If the majority of the people cannot be trusted to act in
a manner that respects rights, why assume that the Supreme Court
can or will?
To Quirk and Bridwell, the Constitution is a voluntary
self-limitation of the sovereign people. It is not a set of
limits to be imposed on the people, or their representatives in
Congress, by a body that presumes to stand apart from the popular
This is indeed an intriguing and forceful argument. Yet it
seems to me to have neglected an alternative. What if sovereignty
resides neither in a body of Platonic Guardians, nor in the
people taken collectively, but rather in individuals considered
separately? If the latter position (which I think the correct
one) is adopted, does this allow a larger role for independent
courts than our authors are willing to countenance?
Quirk and Bridwell have, in sum, written an insightful and
provocative book that every student of American constitutional
law needs to study carefully. When one contemplates the manifold
unconstitutional acts of the Supreme Court, there is a strong
temptation to say, with Voltaire, "Ecrasez linfâme."