Siegrid Tuttle
9 min readFeb 17, 2021

The Supreme Court vs. Democracy, the Problem of Judicial Review

The Supreme Court, seven unelected judges, has the power to overule the American legislature. Why? And does judicial review make the Supreme Court superior to the legislature? It certainly feels that way when the US government takes a leap towards democracy and is immediately shot down by rulings like Citizens’ United. Our Supreme Court often makes decisions that are elitist and seem to overstep judges’ intended role in lawmaking. This is the result of a misunderstanding of why judicial review exists. Judicial review is necessary, not because Supreme Court judges are superior to the legislature or superior to the citizenry, but because judges are best able to carry out the ultimate will of the people in certain instances where temporary “ill-humors” have weakened the legislature’s will to respect the United States’ rights and institutions. Because it is not superior to the legislature, the Supreme Court should only practice judicial review to reign in abuses of power when the government’s goal is reactionary discrimination, or otherwise based on a temporary ill-humor of the people.

We know the founders did not want judges making the moral and policy decisions reserved for the legislature. Originally, Madison argued for a Council of Revision in which justices would be involved in law-making (​Madison Debates​)​. However, opponents frowned upon this idea because it violated separate powers doctrine. Madison and his supporters argued laws may be “unjust” but not “so unconstitutional” as to justify courts striking them down ​(​Madison Debates​)​. They argued judges had “competent knowledge” that would be useful in the legislative process ​(​Madison Debates​)​. Opponents also frowned on these arguments, saying judges were not above ordinary men and did not hold “peculiar knowledge of the mere policy of public measures” ​(​Madison Debates​). ​The Council of Revision was voted down, establishing that the Judicial branch would be separate from the Legislative, not only for the sake of checks and balances but because being experts of the law did not qualify judges for the moral and policy decision making done by legislatures.

Instead, the United States’ judicial system has some powers of judicial review in certain instances when the judgement of judges must trump that of legislatures, due to the Supreme Court’s institutional role, not its moral or intellectual superiority. Hamilton explained in Federalist 78 that acts contrary to the Constitution must be “void” because the Constitution is “fundamental” law ​(​Hamilton, A.).​ Hamilton argued this allows the court to rule the Constitution, or “the intention of the people’’ superior to acts of the legislature, “the intention of their agents” (​Hamilton, A.).​ Judges were never intended to interfere in every or any act of the legislature, they are simply a bulwark against occasional “ill-humors” that lead a majority to attack the same institutions they built and usually support. It is easy to see how a population that overwhelmingly supports an idea such as free speech, and solemnly declares the government must never attack it, might clamber for a law which restricts an idea that causes moral panic, and then just as quickly accept that same idea as part of the marketplace of ideas a few election cycles later. In cases such as these, judges are more able to make decisions that reflect the true will of the people because they have life terms which protect them from “temporary ill-humors” and are tasked with the faithful execution of the nation’s fundamental law ​(​Hamilton, A.)​ . The founders laid out a clear goal for judges to temper temporary ill-humors of a majority while avoiding judgements involving morality and policy.

In ​Department of Commerce v. New York (2019)​, the Supreme Court correctly used judicial review to block an abuse of power based on a temporary ill-humor that gripped the nation. In this case, the Secretary of Commerce attempted to add a question about citizenship to the census that would have negatively impacted survey response rates in areas with large immigrant populations ​(​Dept. of Commerce v. New York​)​. Evidence showed the Secretary went to multiple agencies to “contrive” a logical basis for this question ​(​Dept. of Commerce v. New York)​. The Supreme court did not allow the question to be added to the census because it was an “abuse of discretion” which violated the Administrative Procedure Act (APA) ​(​Dept. of Commerce v. New York)​. By passing the APA, Congresspeople, representatives of the people, limited agency actions. The Secretary can not violate this on his own whim, especially since he was likely acting on temporary anti-immigrant fervor that had been fostered by certain politicians. However, the court did not “substitute [its] judgment for that of the Secretary” ​(​Dept. of Commerce v. New York​).​ It ruled against an argument set forth by a lower court that the Secretary’s decision was “not supported by the evidence” because that argument required the court weigh risks and benefits of different policy options ​(​Dept. of Commerce v. New York]​)​. This sort of “value-laden decision making” is not within the purview of the courts. The court did not attempt to make moral or administrative decisions, it did protect the nation from an abuse of power motivated by a temporary ill-humor, fulfilling Hamilton’s vision for the court.

In ​Gitlow v. New York,​ the court was too conservative in its use of judicial review, allowing the state to attack free speech in a fit of red-scare paranoia. Gitlow had been prosecuted under a statute against anyone who “advocates, advises or teaches” criminal anarchy (Gitlow v. New York). This law went far beyond punishing speech that directly caused violence or law-breaking and instead made an entire political theory illegal. The court correctly incorporated the First Amendment through the Due Process clause. By using the Bill of Rights to determine protected liberties, the court is able to avoid making its own subjective decisions on what constitutes liberty, all while protecting individual rights from often discriminatory and reactionary state governments. However, the court ruled against Gitlow, deciding his speech, which had caused no known law breaking, presented a “clear and present danger” (Gitlow v. New York). How a law against an ideology and all speech involved in its promotion could stand is incomprehensible. In Brandenberg v. Ohio, the court correctly decided a similar decision,

upholding the free speech rights of a KKK leader that advocated violence but could not be directly linked to violent incidents (Brandenburg). In this case, it is easy to argue the speech in question incited violence, but, as Justice Holmes eloquently states in his Gitlow dissent, “every idea is an incitement” (Gitlow). The government must only punish the actual results of these incitements. In​ Brandenburg,​ the court did not interfere to protect Constituitional rights from a temporary ill-humor, but from a valiant campaign to end terrorism against African Americans. Yet, this still had to be constrained so that it did not destroy the widely-supported Constitutional right to free speech in its righteous zeal.

In his concurring opinion, Justice Douglas highlighted the court’s double-standard in protecting the KKKs free speech but not protecting the free speech of leftists. He characterizes the free speech trials of many Marxists as “twisted and perverted” and “all-out political” (Brandenberg). He further explains, in case after case, the almost non-existent threat of revolutionary rhetoric causing real violence was blown out of proportion by judges, “so wedded to the status quo that critical analysis made them nervous” (Brandenberg). The fact that the Supreme Court is more willing to protect the KKK’s advocacy of violence then the speech of leftists could be cited as evidence that judges have failed to impartially protect the rights of groups against temporary ill-humors of the majority. This is true, it marks a failure in impartiality. However, all government institutions are naturally biased against radicals. It is very difficult to construct a government entity so true to its principals it protects those who advocate for its destruction. ​West Virginia v. Barnette​ and other cases in which the court supported subversive speech demonstrates even in cases where the facts of the case are stacked against fair and reasonable judicial treatment, judges can rule with integrity.

In certain cases the Supreme Court misused judicial review to enforce its own “values-laden decisions” upon legislative authorities. In Wisconsin v. Yoder, the court found, based on its own historical and factual research, that the interest of the state in educating children to the age of 16 was not “so compelling” it outweighed Amish parent’s liberty to raise their children according to Amish religious requirements (Wisconsin). The court did not argue in Yoder that the government’s goal was purely discriminatory as it did in Pierce v. Society of Sisters, in which judicial review was necessary because the government’s official reasoning for the law fell apart under scrutiny and the law was clearly a reactionary attack on Catholics (Pierce). The court offered no reason to believe the law in Yoder was anything except a good faith attempt to put children in school that incidentally affected the Amish community. The Supreme Court decided it had better ability than the people’s elected representatives to decide the value of education. There is no reason to believe Supreme Court Justices, experts in the law, are better equipped then legislatures to determine the benefits of education.

In ​Planned Parenthood of Southeastern Pa. v. Casey,​ the court continued ​Roe v. Wade​’s tradition invoking questionable moral and medical reasoning to rule on abortion. The ruling overrules the “trimester framework” of ​Roe,​ which the court found was based on factual reasoning that had become incorrect (Planned Parenthood). The court then attempted to determine wether a wide array of abortion restrictions presented an “undue burden” to a women’s right to choice and properly balanced privacy rights with the state’s “compelling interest” in protecting unborn life (Planned Parenthood). The court first upheld the state’s definition of “medical emergency,” requiring it to make a medical decision, then upheld the state requirements for informed consent and a 24-hour waiting period (Planned Parenthood). The court argued the 24-hour waiting period may be a substantial burden on some women, but not

enough to make it unconstitutional. Then the court argues the requirement for informed consent of husbands is unconstitutional because “the analysis does not end with the one percent of women upon whom the statute operates; it begins there,” seeming to contradict the 24-hour waiting period logic (Planned Parenthood). It also went into the physiological effects of domestic abuse to contrive a medical reason requiring the husband’s consent posed an “undue burden” on women (Planned Parenthood). The court then upheld state requirements for medical records and parental consent for minors.

Casey represents a string of incongruous value-laden decisions, to justify these the court argued it had a duty “to exercise its reasoned judgment in determining the boundaries between the individual’s liberty and the demands of organized society” (Planned Parenthood). What the court describes in this quote is not judicial review, but the act of legislating. Surely the Fourteenth Amendment was not written to give courts the power to strike down and reconfigure any legislation to conform to its own “reasoned judgement” on the proper balance between individual liberty and state power.

The Supreme Court works best when it functions as it was designed, to protect Constitutional Institutions from destruction by a momentary ill-humor of the majority. The court rarely lives up to this humble standard, either by capitulating to the forces of populer will when it should stand tall or grasping for powers it has no claim over. It is not possible to transform law into a science, untouched by the biases of the humans who practice it. The Constitution created a system of checks and balances designed to provide Americans as much protection from abuses of power as possible, even abuses they temporarily support. But no matter how institutions are constructed, they are only as good as the people inside them.

Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).

Dept. of Commerce v. New York, 139 S. Ct. 2551, 588 U.S., 204 L. Ed. 2d 978 (2019).

“Gitlow v. New York.” Oyez, Accessed 16 Dec. 2020.

Hamilton, A. (1788). Federalist 78. McLEAN’S Edition.
Madison Debates July 21. (1787). Retrieved October 08, 2020, from​
Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925).
Planned Parenthood of Southeastern Pa. v. Casey, 510 U.S. 1309, 114 S. Ct. 909, 127 L. Ed. 2d

352 (Supreme Court 1994).
Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).