Judicial Review

This is the notion that the Constitution ultimately means what the Supreme Court says it means. For those desiring a history lesson undergirding this concept, look up the matter of Marbury v. Madison (1803). In a nutshell, judicial review of laws is not enumerated in the Constitution. The Constitution enumerates the judicial power under Article III, which states in full:

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

Please note that this does not state that the Supreme Court or any other court has the right to determine whether certain laws are constitutional or otherwise. It merely states that the Supreme Court, and its inferior courts, have jurisdiction over all cases arising under the constitution or the laws of the United States. It wasn't until 1803, approximately 15 years after ratification, that the Supreme Court declared that it had the power to declare laws unconstitutional.

All of this is to point out that judicial review is not pre-ordained. Congress controls the money and the Executive controls the guns. The Courts control neither. It is only through the acceptance of this authority by other political branches that the Courts continue to have an effect. 

Hypothetical question: if the Supreme Court, in 1861 in the midst of the Civil War, had told President Lincoln that suspension of habeas corpus was unconstitutional and ordered him to remedy the situation, would he have? What would have happened if he hadn't?

Second hypothetical: if the Supreme Court, at the height of WWII, had ordered FDR to dismantle the Japanese internment camps, would he have? What would have happened if he didn't?

Third hypothetical: Following Brown v. Board of Education, the Supreme Court ordered schools desegregated. Arkansas Gov. Orval Faubus deployed the Arkansas National Guard to "support" and "defend" the segregationists who attempted to prevent the desegregation of Little Rock Central H.S. by the Little Rock 9 in 1957. What if Pres. Eisenhower hadn't federalized the Arkansas National Guard and sent in the 101st Airborne Division? What if Arkansas Gov. Faubus had openly defied a Supreme Court order and nothing happened?

These hypotheticals point out that obedience to judicial orders will only happen when the other branches voluntarily do so. The above-three hypotheticals could have happened differently than they did.

In light of that, I quote this in closing:

the current relative equilibrium in which elites in both parties support strong judicial review and refrain from using the tools the Constitution gives them to attack the courts is not an inevitable feature of American constitutionalism. Merrick Garland is the canary in the coal mine: elite polarization and the fact that once Kennedy retires the Court is going to be strongly and consistently aligned with one partisan faction or another will have major consequences for the federal judiciary. Barring a sudden, unlikely partisan realignment, short-staffed courts are going to become endemic in times of divided government. Manipulation of the size of the court and other major clashes between the courts and the other branches are possible. We have only scratched the surface of the impact of the McConnellization of American constitutionalism.