Thursday, February 28, 2013

Judicial Review: Checks and Balances

    The longstanding precedent of judicial review is now entrenched into our political system.  That is not to say it has escaped controversy.  Judicial review was established in the landmark case Marbury v. Madison in 1803.  Since its inception, it has lent its hand on many legislative challenges throughout our history.  
     Judicial review is thought by some to be controversial because the justices of the Supreme Court are unelected bureaucrats who enjoy life tenure.  Through judicial review, they review cases brought to them challenging various laws as unconstitutional.  The duty of the court is to determine the constitutionality of those laws through oral arguments by the lawyers of the Justice Department and the plaintiff as well as reading amicus briefs submitted by interest groups.  The thought that unelected officials can strike down laws that survived the complete legislative process (proposed bills that pass the House, Senate, and are signed into law by the president) is considered audacious by some.
     However, when our founders designed our country they set up a system of checks and balances.  Yes, while they may not have imagined judicial review, it is a perfect check on the legislative system.
     Yesterday the Supreme Court heard oral arguments in the much anticipated and closely scrutinized case of Shelby v. Holder.  This case is examining whether the renewal by Congress of Section 5 and Section 4(b) of the Voting Rights Act of 1965 is constitutional.  Originally the Voting Rights Act was designed to protect the rights of minorities in counties of the deep south who were still making it very difficult to vote through things like literacy tests which were still illegal per the Constitution.  Section 5 states that these counties must get permission from the Justice Department or a three judge panel in Washington DC if they choose to change any election laws.  Section 4(b) defines which counties will be included in Section 5; districts  or counties that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election.  Shelby County Alabama is challenging congress's 2006 renewal Section 5 (in which the Senate voted 98-0 to renew) stating they did not have the authority to do so.
     Many liberals are in an uproar because the consensus from Wednesday's oral arguments is that the law is not going to stand with the five conservative justices likely voting against it.  The most scrutiny came from Justice Scalia's comments that the senate did not mean to vote unanimously and that congress recognized "a phenomenon that is called perpetuation of racial entitlement."  Yes, this statement is overwhelmingly offensive and has liberals red with rage.  However, overall, I think liberals also have the wrong idea on this case.
     Liberals are concerned that voter rights may be in question if Section 5 is struck down.  However, voter discrimination on the basis of race is illegal as outlined by the Constitution.  If Section 5 is struck down, it does not mean that minorities in those counties will be disenfranchised.  It just means that these counties no longer need permission from the Justice Department for election law changes.  The Court will most likely send the law back to congress for them to determine what to do with it.   
     In regards to Justice Scalia's comments, many liberals are upset because he is dismissing the fact that the senate voted unanimously in 2006 to renew the law.  Their argument is that if congress wanted it, why are you challenging it?  However, this is judicial review.  When it works in one's favor, it's a great asset to our political construct, but when it does not, some feel that the justices are over stepping their bounds.
     Another great example of judicial review was the recent Supreme Court case reviewing the Constitutionality of the Affordable Care Act.  This piece of legislation was passed by a Democratic majority House, Senate, and executive.  If one objects to this legislation, how can they challenge?  The answer is to bring a suit in federal court.  By having the Supreme Court review the Constitutionality of this case, it is the perfect check and balance of the laws passed in Washington.
     Many liberals would have been upset if ObamaCare was struck down.  Many liberals are still upset over the controversial Citizens United ruling allowing major corporations to blindly dump large sums of money into campaigns without being named.  Conservatives are still in an uproar over the ruling in Roe v. Wade.  If the Supreme Court rules against Section 5 of the Voting Rights Act of 1965, liberals will again be throwing their arms in the air in a fury.  These are the consequences of judicial review but in the scheme of checks and balances, it is a fair way to keep our government on an even keel.       
“a phenomenon that is called perpetuation of racial entitlement” - See more at:
“a phenomenon that is called perpetuation of racial entitlement” - See more at:
“a phenomenon that is called perpetuation of racial entitlement” - See more at:

1 comment:

  1. Mike from SeekonkMarch 1, 2013 at 7:39 AM

    It's true that potentially striking Section 5 of the Voting Rights Act down is unthinkable to many-the memories of Selma and Philadelphia, Mississippi are still fresh in everyone's mind. But on closer inspection, your analysis of the issue removes some of the emotion and injects some of the logic behind the importance of judicial review. I think we could have done without Justice Scalia's commentary, however.