Imagine a country in which no court can strike down laws. There is no text setting out the rights people have as citizens. One branch of the government is sovereign, so there is no need for any umpire to decide who wins when that branch clashes with another.
This country would be a fairyland for some critics of judicial supremacy in the United States. For a long time, conservatives have complained that the Supreme Court is “activist,” that it interferes too much in the work of the elected branches and bends the Constitution to justify its preferences. As the court has filled with more ideologically reliable Republican justices, some on the Left have started saying much the same thing.
But the most enterprising liberals now go further. They don’t want the court to show restraint. They want to strip it of its power to decide which laws are and aren’t constitutional. Their target, in other words, is the very principle of judicial review as Americans have known it since Marbury v. Madison.
So far, no one on the Right has said anything back. There has been no apologia for the “juristocracy” conservatives have worked so hard to staff. If they wanted to devise one, they might look more closely at the fairyland described above. It’s a real place: the United Kingdom.
Even with its sovereign parliament and lack of a codified constitution, the U.K. has a gentle form of judicial review, which has grown more important and controversial since the 1960s. Brexit, for instance, has slipped into a legal morass. Judges have ruled against the government twice, and the government has assembled a committee to review judicial review. The review’s prospectus sounds all the old American conservative themes about judicial supremacy, which liberals are now adapting to their purposes. But the U.K.’s experience raises a question: If judicial review is so hard to get rid of, might it have something going for it?
When Americans talk about judicial review, they tend to mean the Supreme Court throwing out laws because they breach the Constitution. If the Republican justices ruled that mental patients should be allowed to carry machine guns because of the Second Amendment, they would be doing this kind of judicial review. It is easy to imagine cutting down the court’s role in such decisions. Congress could say that it thought its law was constitutional, thank you very much, and that citizens could vote for the other party at the next election if they disagreed. The court would be ignored, but the nation would nonetheless deliberate on the meaning of the Constitution.
Judicial review in Britain is different. Judges don’t ask whether ordinary laws meet a constitutional standard, but they do ask whether a government agent is obeying the laws. At first glance, this looks much less sinister. Saying that Congress can’t pass a bill is intrusive; saying that someone can only act within the powers they’ve been legally granted is just upholding the rule of law.
In practice, however, Britain’s judicial review is surprisingly ambitious. No law interprets itself. Even if a law seems clear, there will be unexpected scenarios and borderline cases. The letter of the law might seem to enable the government to do X in situation Y, even though it couldn’t have been intended to. It might seem to prevent the government from doing A in situation B, even though that would make sane administration impossible.
A court must give the answers, and it’s easy to see how they can become politically charged. This is especially true of the kind of laws liberals care most about passing. Say you want a Green New Deal. This involves setting up various government agencies and giving them the power to work out which funds to give to which green people and which regulations to impose on which polluting people. In every detail, the question will arise of what the exact scope of a power is. And because you will be passing the law in a political context, you will need it to sound moderate and reasonable — you want to secure the vote of a representative from a tract-housing exurb near Dallas. This means the bill’s provisions will be vague and open to a modest interpretation. Once it’s passed, you will rely on officials appointed by a sympathetic president to expansively construe the powers you’ve given them. At some point, the courts will come into play. A polluter will sue, and Republican judges, relying on the modest interpretation enabled by the bill’s vague language, will say that everything your green agency did went beyond its legal powers.
Then there is the opposite sort of case. You and your voters care a lot about an issue that you can’t do much about in practice. So you pass a bill imposing some symbolic duties on the government and then forget about it. Years later, the courts pounce. In a recent case in the U.K., a court noticed that the government had approved the construction of a new airport runway without considering its environmental impact, as required by an obscure provision of the Climate Change Act of 2008 — a provision that the government had assumed was merely decorative. The court stopped the construction of the runway, and now, every infrastructure scheme of roughly the same vintage is in peril.
When liberals talk about ending the juristocracy, these are the sorts of cases they have in mind. They like Roe v. Wade, but they hate Republican judges dismantling regulations and cutting back on generous programs. They think it’s worth giving up the judicial protection of constitutional rights in exchange for the freedom to build a bigger state. But the value of what they’re buying is small. As the example of the U.K. shows, the Supreme Court doesn’t need to be interpreting the Constitution to sabotage left-wing projects; all it needs is more pedestrian power to interpret ordinary laws.
This is a hard truth, but there is a harder one. When a law is assessed against an external standard and found wanting, there is at least a solution. You can ignore the external standard and keep the law as an expression of democracy. This is what the critics of judicial supremacy want to do, in a limited way, with the Constitution. They want it to inform lawmaking, but they do not want it to determine how a law passed by Congress applies or whether it is valid.
But with Britain’s quiet, “administrative” style of judicial review, there is not even this escape hatch. It is the inevitable ambiguity of the law itself that gives the judge his or her power. Even if liberals can break the judicial confirmation machine that is now the Senate, the problem of juristocracy will still come from inside the House.
Chuck Townshend is a lawyer in London.
