In my first two entries for this column, I focused on the president’s removal power and Congress’ power to make law. This third entry focuses on our third branch of government and explains why the Supreme and inferior federal courts are properly conceptualized as faithful agents of We the People – not faithful agents of Congress. Recognizing the distinction helps explain why the Supreme Court can, and should, exercise the power of judicial review – something which, while an acknowledged part of the Supreme Court’s power for well over two centuries, has recently come under question.
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Although many schools of interpretation can embrace the idea that federal courts are faithful agents of We the People, that conception of the judicial role has become a prominent feature of modern textualism. In 2017, then-Judge Amy Coney Barrett explained that “[t]he textualist commitment” to interpreting laws according to the perspective of an ordinary reader “might be explained by a … conception of faithful agency … that understands courts to be the faithful agents of the people rather than of Congress.” For support, she noted that Justice Antonin Scalia “did not think that a commitment to legislative supremacy casts courts in the role of Congress’s agents,” as he “characterized courts as agents of the people rather than agents of Congress.”
More recently, in an opinion joined by Justice Samuel Alito, Justice Neil Gorsuch defended the major questions doctrine – a canon of interpretation that requires administrative agencies to identify extra clear statutory authority before regulating in economically or politically “major” ways – by quoting then-Professor Barrett for the proposition that “clear-statement rules help courts ‘act as faithful agents of the Constitution.’”
As an initial terminological matter, there is not currently a meaningful difference between conceptualizing courts as faithful agents of the People and conceptualizing courts as faithful agents of the People’s Constitution. The Constitution’s Preamble describes the Constitution as being enacted on behalf of We the People. So under our present constitutional order, acting as a faithful agent of the People’s Constitution is a means of acting as a faithful agent of the People.
A meaningfully distinct conception of federal courts, however, understands courts as faithful agents of Congress. That conception of the judicial role has been widely held; in her academic work, for example, then-Professor Barrett wrote that “[t]he view that federal courts function as the faithful agents of Congress is a conventional one,” and that “[t]hroughout most of the twentieth century,” competing “participants in debates about statutory interpretation largely subscribed to it.”
Although that conception of the judicial role has been widely held, it is nonetheless mistaken for at least three reasons.
First, the three federal branches are coequal; none is a principal or agent of the others. Second, and as I recently explained in this column, the Constitution does not empower Congress to ordinarily make law alone. Instead, Congress makes law through a multi-branch lawmaking process that includes the president. A federal jurist who claims to be a faithful agent of Congress therefore approaches statutory interpretation from a starting posture that mistakenly favors one of the two political branches that the People’s Constitution tasks with collectively making law.
The third reason why it is mistaken to conceptualize courts as faithful agents of Congress is that Congress can sometimes work with the president to make unconstitutional statutes. In those situations, federal judges who conceptualize themselves as faithful agents of Congress would seem to be required to dutifully give legal effect to Congress’ unconstitutional statutes. But that is not what courts should do if they wish to respect the Constitution’s limits. Instead, when courts are faced with constitutionally defective statutes, courts should exercise judicial review and demonstrate that the courts are themselves constitutionally prohibited from treating unconstitutional statutes as valid law. By doing so, courts demonstrate that they are faithful agents to the People’s Constitution, not Congress.
Federal courts’ power of judicial review is no doubt familiar to most lawyers, given Chief Justice Marshall’s 1803 decision in Marbury v. Madison. Less than 15 years after the ratification of the Constitution that vested “judicial Power” in the Supreme and inferior federal courts, Marshall explained that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is,” and that if “the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
The familiar form of judicial review reflected in Marbury is consistent with the idea that federal courts are faithful agents of the People. Nevertheless, in an important new book, titled “Supremacy: How Rule by the Court Replaced Government by the People,” law professors Nikolas Bowie and Daphna Renan challenge the Supreme Court’s ability to review the constitutionality of federal legislation. The book offers an important argument against judicial review of federal statutes. And that argument would no doubt be of interest to constitutional framers working on a clean slate. But when it comes to working within the constitutional system already established on behalf of We the People, the book’s argument against judicial review is problematic.
The core of the problem with Bowie’s and Renan’s argument against judicial review of federal statutes is their suggestion that Congress has seemingly unlimited discretion to define its own constitutional limits. Bowie and Renan highlight, for example, the claim that “the only power the Constitution gives judges is ‘the judicial Power,’ which is a term that historically referred to British judges’ power to enforce, not second-guess, laws passed by Parliament,” and they contend that “[t]he most straightforward method of overcoming judicial supremacy would be for Congress to enact a statute that prohibits courts from enjoining or declining to enforce a federal law on constitutional grounds.” But as I have noted in earlier scholarship, such arguments risk conflating the “distinction between a supreme English Parliament and a legally constrained, coequal Congress.”
As the English constitutional theorist A.V. Dicey explained, “[t]he principle of Parliamentary sovereignty means” that “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” To recognize in Congress a power to statutorily prohibit the courts from declining to enforce a federal law on constitutional grounds would be to recognize in Congress a power that is not meaningfully distinguishable from the aspect of sovereignty that Dicey ascribes to Parliament. But as Justice Clarence Thomas has explained, “one of the fundamental differences between our Government and the British Government” is that although “Parliament was supreme[,] Congress is not.”
To be clear, conceptualizing federal courts as faithful agents of the People would not require accepting a form of judicial supremacy – or the idea that, even outside of the bounds of federal courts’ jurisdiction, every judicial opinion is binding law on the other two branches. To the contrary, the Constitution’s supremacy clause encodes a form of legislative supremacy into our constitutional order; so long as federal statutes are “made in Pursuance” of the Constitution, those statutes qualify as the “supreme Law of the Land” and thus can legitimately constrain executive and judicial decisionmaking.
But to conclude the Constitution establishes a form of legislative supremacy is distinct from concluding that the Constitution establishes a form of congressional supremacy. Unlike the sovereign Parliament, which Dicey described as having the “right to make or unmake any law whatever,” the non-sovereign Congress cannot enact whatever legislation it wants. Rather, Congress is constrained by the People’s Constitution. The supremacy clause illustrates this by, as mentioned, only treating some statutes – namely, those “made in Pursuance” to the Constitution – as the “supreme Law of the Land.” Courts thus act as proper agents of the People when they distinguish between statutes made in pursuance to the Constitution, which courts must treat as supreme law, and statutes that violate the Constitution, which the courts should set aside for purposes of resolving the case at hand.
One might nonetheless contend that judicial review of federal legislation is somehow inappropriate on democratic grounds. One version of that objection might contend that courts should act as agents of the democratically elected Congress – meaning that courts should enforce whatever statutes survive the democratic lawmaking process, even if a court concludes that the statutes violate the Constitution. Bowie and Renan, for example, argue for “democratic constitutionalism,” which they say means “a Constitution whose questions are decided not by the Court but by the people’s elected representatives through federal statutes.”
That type of argument has at least two key weaknesses.
First, federal judges are themselves selected and supervised through democratic means. To wit, federal judges are selected by a politically accountable president and confirmed by a politically accountable Senate. Federal judges may be impeached through the political impeachment process. Federal judges’ statutory rulings can largely be overruled through the democratic process with new legislation. And federal judges’ constitutional rulings can be overruled through the constitutional amendment process.
Second, and more fundamentally, the fact that federal judges do not stand for election is a constitutional feature, not a bug. In establishing the federal government, We the People tasked three coequal branches to act as the People’s agents; two branches (i.e., Congress and the president) stand for regular elections, while the third (i.e., the judiciary) does not. The fact that federal judges do not stand for election does not mean those judges are somehow not agents of the People. To the contrary, it simply means that the courts make up a different class of agents. And political minorities no doubt recognize the wisdom in empowering at least one class of agents to operate outside the daily whims of majoritarian politics.
Finally, it is of course the case that federal judges can get the law wrong – and as human beings, judges (like other humans) have the capacity to act immorally. (Bowie and Renan demonstrate as much by highlighting grave errors made by the Supreme Court throughout its history.) But Congress and the president can make legal and moral errors as well. So imposing a form of congressional supremacy would not fix the underlying problem that humans (even those that serve in Congress) are not angels. Part of the wisdom behind our Constitution’s structure is that it addressed human nature by limiting the consequences attributable to any one branch’s errors. And the courts play an important role within that constitutional design by exercising judicial review.
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In sum, it is mistaken to conclude that accepting the validity of judicial review requires accepting rule by the courts rather than rule by the People. The courts, like Congress and the president, are agents of the People. And the courts rightfully act as agents of the People when they decline to give legal effect to statutes that violate the People’s Constitution.
