Towards a Better State: Fostering Dialogue Between the Supreme Court and the Public Through a Public Comment Period

BY EVA DUGOFF

Since Marbury v. Madison in 1803, the case that “invented” judicial review, the Supreme Court has exercised this power sparingly; that is, until recently. In the 1860s the Supreme Court, exercising its power of judicial review, struck down four laws, seven in the 1870s, four in the 1880s, and five in the 1890s. Between 1990 and 2000, the Court struck down thirty laws.

In 1962, Professor Alexander Bickel criticized judicial review most famously for its counter-majoritarian difficulty, but also because he argued it leads to a decline in public debate. Following the lead of James Bradley Thayer and Judge Learned Hand, Bickel argued that “judicial review may, in a larger sense, have a tendency over time seriously to weaken the democratic process.” According to Bickel and Thayer, judicial review gives the legislature leave to “shed all considerations of constitutional restraint” because the courts will step in. In turn, the people will be less conscientious in who they send to Congress. The end result, according to Thayer, is that judicial review “dwarf[s] the political capability of the people, and [] deaden[s] its sense of moral responsibility.” The people lose their political capabilities because the Supreme Court, an outsider, swoops in to remedy legislative mistakes, robbing the people of the political experience of debating the issue in public and correcting their own mistakes.

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