What Progressives Get Wrong About Judicial Review

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.”