What Progressives Get Wrong About Judicial Review
Reason magazine|February 2022
IN FEBRUARY 1958, a distinguished liberal jurist named Learned Hand told a distinguished liberal audience some-thing that it did not want to hear. The U.S. Supreme Court’s celebrated power of judicial review, Hand declared in a lecture at Harvard Law School, was fundamentally illegitimate.
By Damon Root

Hand was talking specifically about Brown v. Board of Education (1954), the now-landmark case declaring Kansas’ “separate but equal” public education system to be unconstitutional. Hand did not personally support the state’s racist school system. Rather, his argument was that the Supreme Court had no business passing judgment on it in the first place. Nine unelected judges, Hand said, should not be allowed to substitute their constitutional values for those of the democratically accountable officials that had created the policy.

The problem with the Brown Court, Hand told his increasingly unsettled audience, was the same as the problem with the Lochner Court, which had once struck down Progressive-era economic regulations in the name of its constitutional vision. Both then and now, Hand said, the Supreme Court’s use of judicial review was a “patent usurpation” by which the judiciary overruled the wishes of popular majorities and transformed itself into “a third legislative chamber.”

Hand spoke at Harvard that day adorned with many impressive liberal credentials. In 1912 he had been a key adviser to Theodore Roosevelt’s Progressive Party campaign for the presidency. In 1914 Hand had joined Herbert Croly in founding The New Republic, which quickly became America’s most influential liberal magazine. In 1924 he would join the U.S. Court of Appeals for the 2nd Circuit, where his judicial career would stretch across three decades, making him one of America’s most celebrated liberal judges. When he died in 1961, a New York Times obituary called him “the greatest jurist of his time.”

Yet Hand’s liberal audience in 1958 wanted nothing to do with his attack on judicial review. Liberals at the time not only cheered the Supreme Court’s actions in Brown but cheered again a few years later when the Court struck down democratically enacted bans on birth control and abortion. In the years ahead, legal liberalism would become practically synonymous with the vigorous use of judicial review by the federal courts.

Those liberals were right not to buy what Hand was selling. Unfortunately, that was then. A growing number of lefty activists today seem ready and willing to join Hand’s camp. “It’s perfectly reasonable to ask if we should abolish the Supreme Court, or at the very least strip the Court of its ability to overturn laws that it rules unconstitutional,” asserted Vox writer Sean Illing in 2018. “Disempowering the federal courts is the most democratic type of reform,” declared Harvard law professor Nikolas Bowie in 2021. “No reform short of ending the power of judicial review,” argued New York Times columnist Jamelle Bouie in 2019, will be sufficient to stop “judges nominated by Trump.”

Six decades after Hand discomfited the crowd at Harvard, the case for ending judicial review is finding fans on the legal left. But abolishing judicial review is a misguided idea at odds with the Constitution, and one that will do lasting damage to liberalism itself.

‘THE JUDICIAL POWER’

TODAY’S LIBERAL CRITICS of judicial review make two principal claims, both of which Learned Hand made too. First, they say that judicial review is repugnant to democracy. To allow unelected judges to void the actions of democratically elected legislators, presidents, or governors, the argument goes, is to allow the judiciary to subvert the will of the majority. Second, these critics say, judicial review “wasn’t enumerated in the Constitution and isn’t inherent in the court as an institution,” as Bouie put it. Thus, the act of abolishing judicial review does not raise any constitutional concerns.

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