Ben Shapiro is Wrong: Judicial Review as Obligation

· V's Legalese

The Supreme Court can tell us all no. That’s a good thing.

Blasphemous as it may be to say on Twitter, I genuinely like Ben Shapiro. I have important disagreements with him, but I’m proud of how he’s become a household name. I admire him for his steadfast courage. And I think that in terms of generational influence, he’s probably the most widespread conservative intellectual since Buckley. All that, and he’s not even 40.

So in spite of the provocative headline, there is absolutely no disrespect towards him intended in this post. Ben, if you’re reading this, please don’t kill me on your next podcast.

For those unfamiliar with Ben Shapiro, he’s a lawyer, scholar, and popular podcast host. And one of his more unconventional opinions is that Marbury v. Madison – one of the first Supreme Court decisions in history, which declared that federal courts can strike down laws that are incompatible with the Constitution – was wrong.

To be sure, Ben is not the only one who thinks this. I know several dissenters against judicial review and Chief Justice John Marshall (the author of Marbury) in particular. But Ben wrote his 3L paper on the case, arguing for its revisiting. Disclosure: I couldn’t find it. But he’s written other things since. After reading this, this, and this, and then listening to this, I’ve got a pretty good idea of what his basic argument is.

Most people understand the Marbury rule of judicial review like this – the Supreme Court can say that a law, any American law, violates the Constitution. Like Thanos snapping his fingers, that law vanishes, as though it never existed. Of course that’s nonsense. Why have a court do that instead of, say, literally anyone else? Courts have to listen to people prattle on about how they weren’t really speeding, or why they should get full custody instead of their crazy ex-wives. And they’re the ones with the power to unilaterally declare, whenever they want, what the Constitution says, with everyone else forced to obey?

But we’re not the French. Our interpretative bodies don’t get to preview a law and veto it before it passes. Our courts hear “cases and controversies” – like the disagreements I noted earlier. And it’s only when they’re presented with one that they have the opportunity to review a law.

Ben thinks that even then, that’s too much power in their hands and too easily (and often) exploited. He points to the fact that they invent constitutional rights from nothing and fail to protect actual rights. They play politics and toy with power like the oligarchy that Jefferson and Madison warned us about. To him, nine people being able to override the values of an entire nation seemingly just through sheer hubris is bad. Not just bad, but contrary to the design of the Constitution.

It’s hard to find fault with his frustration. President Jackson infamously mocked the Court after Worcester v. Georgia, saying “John Marshall has made his decision; now let him enforce it!” What happens to your gay marriage rights if entire states rally around clerks like Kim Davis? Do you think simply saying “but the Supreme Court said in Obergefell v. Hodges…!” will save you? Ben doesn’t. And he deserves an honest answer.

Imagine that on a regular, peaceful evening, the police suddenly kicked down your door, stripped you naked and held you up at gunpoint, while they ransacked your home and tore through your emails and computer files until they find that one song that they can prove you never purchased. No warrant; no exigent circumstances. You won’t get convicted because the court will not allow that evidence to be considered.

Is the court actively stopping the police from doing all that? No. But it is saying that if law enforcement officers do things like that, they cannot use the court to convict you.

That’s the logic of judicial review in a nutshell. Justice Scalia put it this way – “what constitutional interpretation we do, we do by accident,” because the court resolves disputes. You can’t resolve a dispute without applying the law. To apply the law, you need to state clearly what the law is. The Constitution is “the supreme law of the land,” which means that nothing contradicting it can be “the law.” Therefore, the court cannot apply it to the dispute. And if it cannot apply to that dispute, then it cannot apply to any dispute of the same exact kind.

When Chief Marshall wrote Marbury, he was talking to the federal courts. His message is that their role in resolving disputes cannot be meaningfully separated from their function of declaring the law. That’s their obligation. When people bring cases before the courts, they do so with the understanding that a law or action in question will be scrutinized under the Constitution. And, most importantly, if it does not survive that scrutiny, the courts themselves cannot recognize its legitimacy in resolving the disputes.

These are the judiciary’s terms for hearing your case. Marbury is about how we use courts as forums to hear disputes, not how they act the part of gods on Olympus. So when Ben Shapiro denounces judicial review, he is, likely unintentionally, denouncing something foundational to the courts’ function in doing what the Constitution itself requires of them.

This doesn’t mean that suddenly all the things that he’s frustrated about should just be dismissed. It means that the issues are separate. And it’s all the more important to ensure that we get judges who won’t abuse the power. You can believe in judicial review and still hate how they exercise it, and abdicate their duty in the process. It’s simply impossible for them to resolve legal disputes without it.

If you still think Marbury is wrong, consider Ben’s alternative. He says, “the check [against legislatures violating the Constitution] will be the people themselves. If our elected lawmakers violate the Constitution, they will be answerable to us.”

That’s a good one. To be fair, Ben wrote that in 2005, a full decade before today’s mass lifestyle-ized political rage. I doubt that’s still his position today.

There is no political body in America more hell-bent on overthrowing the Constitution than “the people themselves.” The people of California have been seceding from the First Amendment; the people of Illinois, New York, Hawaii, New Jersey, and Massachusetts have all but seceded from the Second. The people vote for healthcare mandates, wiretapping schemes, voting regulations, detention centers, even forced sterilization, – all of which are constitutionally suspect to varying degrees. People cry out for tyrants to lead them and kill liberty with thunderous applause.

The Preamble begins with “We the People” but the structure it creates checks the power of “the people” from every angle. Bicameralism, the Electoral College, judicial appointments, indirect elections of Senators (until the 17th Amendment), enumerated powers of Congress, state veto power against the admission of new states – and the Bill of Rights spells out what these checks are there to preserve. “The People” do not get to infringe on the freedoms like religion, guns, speech, assembly, etc. But it’s not just because the Constitution says so. It’s because the structure of separate, compartmentalized institutions it creates prevents anyone, especially “the People” from accumulating enough power to let them treat it like a piece of paper.

The independent judiciary is part of that structure. The Supreme Court is often called “counter-majoritarian” – a fancy-pants term for “they can tell everyone no.” They are that way because to carry out their duties, they must be. The Constitution requires nothing less. Sorry, Ben.

– Vivek


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  1. Ted Wood

    I generally agree with Shapiro’s position: Marbury v. Madison was the SCOTUS usurping power. What I don’t agree with is that the people will hold the legislature accountable because they really don’t care about what they people think. Most on The Hill are a pile of elitist lawyers who unironically know that because of the very judicial review discussed once they are voted out they have cushy jobs with lobbyist ready and waiting if they wish to take it. Huzzah for corporate personhood and the SCOTUS for giving a non-individual entity the “right” to lobby. (Sarcasm)

    The “Three Co-equal Branches” are co-equal at fault for the erosion of individuals rights and judicial review is implicit. That’s why I agree with the generally sentiment of his article.

    FTR, I’d like to see you two debate this.

    • Vivek

      I don’t think I’m enough of a draw for him. Would happily do it, but I’d need to actually read his 3L paper.

      • Ted Wood

        Meh…wish I could edit. Responding via phone is a land mind for my sausage fingers.

  2. Neo Montag

    What is the proper role of the Supreme Court for Shapiro? I honestly am not sure what they do without judicial review. Strong precedent? Oft cited authority, but ultimately unbinding? Or just narrow settlement of cases states can’t settle without any broader application (which they still do sometimes)?

    • Vivek

      To be honest, I don’t quite know. I would want to read his 3L paper where presumably he’d answer that. William Marbury himself wanted the Court to grant him the remedy of mandamus (an order forcing the executive to affirmatively act to send his nomination forward. Marshall said “this Court doesn’t have the authority to do that.” Mandamus was a remedy allowed under the judiciary act, but that part of the Act was unconstitutional because it added to the original jurisdiction of the Court, which the Constitution doesn’t allow. I’m pretty sure Shapiro agrees with the conclusion that the Court doesn’t have the power to grant mandamus, and so he wouldn’t have sided with Marbury. Maybe he thinks that mandamus should’ve been interpreted as an appellate remedy, not an original one. But (1) that’s probably wrong, and (2) more importantly it’s ancillary to his frustration with judicial review. Or maybe he DOES think that the Constitution allows Congress to add to the Court’s original jurisdiction, in addition to what it can do to their appellate jurisdiction. That’s probably closer to what Shapiro has in mind, because the implication is that the Supreme Court wouldn’t be a truly independent branch.

      But again, Shapiro may have something else in mind that I’m not aware of. I deliberately didn’t include these details about the actual Marbury case because I just wanted to focus on judicial review. But that’s more or less how Marshall’s logic all came together.

      • Ted Wood

        Probably to relegate disputes bewteen the various state, between citizens of different states, Maritime laws, disputes with other countries.

        I look at the Constitution as somewhat of a treaty between the states and the SCOTUS as it’s arbitrator.

  3. SL

    “The Preamble begins with ‘We the People’ but the structure it creates checks the power of tthe people’ from every angle.”

    Well, this is blatantly wrong. Nothing in the Constitution checks, or is intended to check, the power of the People. In fact, it does no such thing. The US Constitution is designed and acts (subject to perverse interpretations) only to limit and check the power the People have delegated to the federal government.

    • Vivek

      Before I respond, I’d like to give you an opportunity to elaborate on this thought, as well as to provide examples of these “perverse interpretations” that are clearly on your mind.

      • Justin Jahnke

        Great post Vivek! I would love to provide my thoughts and read your response.
        First, I just want to preliminarily say that the Supreme Court does not, in fact, have the authority to say what the law is. It possesses “the Judicial Power,” although this power is clearly ambiguous. This power arguably includes the authority to command lower federal courts to apply its decisions (although it arguably does not), thereby impliedly empowering the Court to tell lower courts what the law is. But every single person has the ability to interpret the Constitution and to determine what the law is. If the Supreme Court issues an egregiously incorrect interpretation of the Constitution, that interpretation does not automatically become part of the Constitution. This is obvious because the Court itself sometimes overrules its own prior decisions.
        Article III says that the Judicial Power is vested in the Supreme Court. Article VI says the Constitution is the supreme law of the land. The Judicial Power includes the power to say what a law means. Therefore the Supreme Court can say what the Constitution means. The Judicial Power also includes the power to compare two laws and determine if they are consistent or inconsistent. Logically, then, the Supreme Court must also have the power to declare an act of Congress or of the Executive Branch to violate the Constitution. This much I think we agree on.
        But it is not clear that the Judicial Power includes the ability to bind the other branches. It certainly includes the power to bind lower courts. But the Constitution does not specifically enumerate any extrajudicial binding power, and separation of powers principles arguably precludes such power.
        The President and Congress, in fact, have the ability to declare things constitutional or unconstitutional. Given our constitutional structure, we presume that Congress thinks a law it duly enacts is constitutional. And the President has the duty to “take care that the laws be faithfully executed.” This duty includes refusing to enforce unconstitutional laws.
        Finally, there is an argument that any time the Supreme Court erroneously declares a law unconstitutional, the Court itself is violating the Constitution. In such a circumstance, the President arguably has a constitutional duty to instruct inferior officers to disregard the erroneous decision. And Congress arguably has the power to enact legislation directing lower courts to disregard the erreonous decision because it is unconstitutional. Also, to the extent a lower court believes a Supreme Court decision is unconstitutional, it arguably can disregard that decision because the Constitution, and not decisions of the Supreme Court, is the supreme law of the law.
        Let’s take an uncontroversial example–Plessy v. Ferguson. Everybody agrees it was wrongly decided the day it was decided. Suppose Congress enacted a law directing all federal courts not to give effect to Plessy. President McKinley signed the law and directed all inferior officers not to enforce Plessy. State legislators and governors did the same. What would be the Supreme Court’s recourse? I would argue that it has none. It could issue essentially the exact same decision the next time the issue came before the Court, but we would be back at square one. Moreover, there is a plausible argument that a justice who repeatedly votes to reaffirm precedent that Congress and the President repeatedly declare unconstitutional is not demonstrating “good behavior” such that he or she can be impeached. Further, I do not believe the Constitution provides the Supreme Court with any recourse.

      • Vivek

        In your hypothetical, yes the Supreme Court probably has no recourse. The abortion rights movement, just to pick a group, is lucky that states actually did not immediately rebel and overtly crack down on abortion clinics, practices, and services immediately with a vengeance after Roe v. Wade was decided. Rulings from the courts are respected even if disagreed with, and everyone still tends to draw within the lines of that game. That’s my short answer.

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