Season 2, Episode 11 | Courting Controversy: Judicial Review and the Constitution

What happens when nine unelected judges have the final say on the most divisive questions in American life? In this episode of This Constitution, Savannah Eccles Johnston and Matthew Brogdon break down the Supreme Court’s most consequential and contentious tool: judicial review.

They explore how this authority allows nine unelected justices to strike down laws, reshape policy, and act as a final check on Congress and the presidency. But where does this power actually come from? Is it rooted in the Constitution or in political tradition? And does it strengthen or weaken democracy?

Savannah and Matthew examine the origins of judicial review, from the Supremacy Clause to Marbury v. Madison, and how the courts have used this power to decide the nation’s most polarizing issues—from marriage equality to abortion rights. They also unpack the tension between constitutional stability and democratic self-rule, and why judicial review has become both a cornerstone of American government and a lightning rod for controversy.

In This Episode

• (00:00:15) Judicial Review: Introduction and definition
• (00:01:26) Scope and constitutional basis
• (00:03:13) Judicial review in Article III and historical assumptions
• (00:04:01) Marbury v. Madison and early judicial review
• (00:05:25) Hamilton, Federalist 78, and popular sovereignty
• (00:07:05) Jefferson vs. Hamilton: The dead hand of the past
• (00:08:31) Jefferson’s revolutionary perspective
• (00:12:06) Judicial review as upholding the original bargain
• (00:12:47) Amendments and overturning Supreme Court decisions
• (00:15:09) Marbury v. Madison and precedents
• (00:19:01) Frequency and notification of judicial review
• (00:20:22) Political impact of Marbury v. Madison
• (00:23:01) Judicial review and modern controversies
• (00:25:33) Congressional response to Supreme Court decisions
• (00:28:28) The Supreme Court’s aristocratic nature and democratic tension
• (00:29:32) Judicial review as a tool of national majorities
• (00:31:36) Deliberation and the Court’s effect on democracy
• (00:34:20) When should the Court intervene?
• (00:35:31) Origins and alternatives to judicial review
• (00:39:09) Judicial review: Supreme but not final

Notable Quotes

• (00:51) “When judges declare a law unconstitutional, they're saying that the law is in effect, unenforceable.”— Matthew Brogdon
• (01:53) “There's one provision in article six and what's called the Supremacy Clause that tells state judges they're supposed to declare state laws and constitutional provisions unconstitutional, or declare them void if they conflict with a federal law or the federal constitution.”— Matthew Brogdon
• (05:25) “This is something Alexander Hamilton will talk about in Federalist 78, where he will defend judicial review as a necessary check on legislative power, basically, legislative overreach, violation of rights. And this is very interesting.”— Savannah Eccles Johnston
• (00:09:06) “The hardest thing about revolution is ending it.It's creating a stable government. And the way you do that is stability and veneration in the laws” — Savannah Eccles Johnston
• (15:58) “Marbury is the first time the Supreme Court openly exercises the power of judicial review and declares a federal law unconstitutional.”— Matthew Brogdon
• (00:23:10) “Judicial review is the basis for the court being a co-equal branch of government. It’s what makes them powerful—and potentially problematic in a democratic system.” — Savannah Eccles Johnston
• (00:30:06) “Judicial review is a kind of tool of national majorities to discipline states that want to stay out of the prevailing direction in the country.” — Matthew Brogdon
• (00:39:09) “Judicial review is a supreme power—but not a final power.” — Mat

Transcript

Intro:
 [00:00–00:14]
 We the people, do ordain and establish this constitution. 

Savannah Eccles Johnston:
 [00:10–00:14]
 Welcome to This Constitution. My name is Savannah Eccles Johnston.

Matthew Brogdon:
 [00:14–00:15]
 And I'm Matthew Brogdon.

Savannah Eccles Johnston:
 [00:15–00:30]
 And today we are going to talk about judicial review, which is the only judicial check that we'll talk about this season, but it's the big one. So first, let's just define: what is judicial review so folks know what we're talking about?

Matthew Brogdon:
 [00:30–01:26]
 Oh, well, the simple definition is: a court declares a law unconstitutional. That's what we say, but that doesn't actually tell you what happens, right? Like,  and if you compare this like the veto, we know what happens when the president vetoes a law. The law doesn't become law. It's not written down with a note next to it in the statute book. But when judges declare a law unconstitutional, they're saying that the law is, in effect, unenforceable. So you try to prosecute somebody for burning a flag, and the court says, "Well, that violates the First Amendment, so you can't prosecute this person." There's not like a judicial Sharpie that comes out and lines out the flag burning statute in Texas. In fact, the flag burning statute is still on the books in Texas and many other states, even though it can't be enforced, because all judges are doing is saying that law is unconstitutional. So you can't use the courts to enforce it.

Savannah Eccles Johnston:
 [01:26–01:38]
 Okay. And just to clarify, we are talking about acts of Congress and state legislation. We're talking about both here. We're also talking about acts of the executive. Executive orders can be struck down.

Matthew Brogdon:
 [01:38–01:41]
 Everything. Almost everything.

Savannah Eccles Johnston:
 [01:41–01:47]
 Okay. So this is a massive power for the Supreme Court. Where is it in the Constitution?

Matthew Brogdon:
 [01:47–03:13]
 Oh, well,  the easiest place to start in the Constitution is with one clear mention of judicial review. Like  there's one provision in Article VI in what's called the Supremacy Clause that tells state judges they're supposed to declare state laws and constitutional provisions unconstitutional— or declare them void if they conflict with the federal law or the federal Constitution. So there's some complex language here.

The Supremacy Clause says: "This Constitution"— hey, good phrase, by the way, this Constitution— "all laws made in pursuance thereof, and treaties made by the United States are the supreme law of the land." And then it has this peculiar next phrase, because the suggestion is: if it's the supreme law of the land—supreme over what? If we're going to the bother of saying this is supreme, what's inferior? And so then it continues: "And the judges in each state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."
So a state law or constitutional provision can't withstand a conflict with federal law, and judges are somehow supposed to give effect to this. So the only clear mandate for judicial review in the Constitution, that's just on the face of the text, is state judges being commanded to hold these state laws unconstitutional.

Savannah Eccles Johnston:
 [03:13–04:01]
 See, this is interesting because one of the comments I get online fairly frequently from,  disgruntled watchers of the Supreme Court is: "Judicial review is unconstitutional." They say, "Where is it in Article III of the U.S. Constitution?"
 "The judicial power shall be vested in one Supreme Court and in all other courts which Congress shall from time to time ordain and establish," and that It doesn't,  say they can do X, Y, or Z. But I think what is missed here is: there was an assumption at the Constitutional Convention. There's precedent before the Constitutional Convention, and even the ratification debates—there's mention of judicial review. So it's not like Marbury v. Madison creates the idea of judicial review out of nothing, and now we have a Supreme Court that was not—

Matthew Brogdon:
 [04:01–04:44]
 Yeah. Interestingly, Chief Justice Marshall in Marbury—which is the case we always point at as sort of the court's embrace of this idea—it's not the first instance of it, but it's the court openly embracing it. Marshall claims it's in the text. He says this phrase in Article III, Section 2: "The judicial power shall extend to all cases arising under this Constitution"—same word used in the Supremacy Clause phrase—and he claims that's a power to resolve disputes about how the Constitution applies to particular instances.
So to resolve a case "arising under the Constitution" has to be to decide what the Constitution means as applied to that case.

Savannah Eccles Johnston:
 [04:44–04:44]
 Right.

Matthew Brogdon:
 [04:44–05:25]
 And that was a pretty straightforward line of reasoning. You mentioned like the Convention, the ratification debate, some of this other stuff. These are the people who are writing the Constitution and then arguing over whether to adopt it. Judicial review does come up repeatedly, right? And practically everyone in the debate agrees it exists somewhere and in some form, right? They're debating like exactly when and over what and who should be exercising it. But the fact that it was part of a judicial power under a system with a written Constitution that the people had made, and that limits government—it was actually pretty uncontroversial when the Constitution was being written and ratified.

Savannah Eccles Johnston:
 [05:25–06:01]
 Right. So this is something Alexander Hamilton will talk about in Federalist 78, where he will defend judicial review as a necessary check on legislative power—basically legislative overreach, violation of rights.
And this is very interesting. Here he’s comparing the will of the people as expressed in the Constitution and defended by the Supreme Court with the will of representatives—who, of course, are chosen by the people as well. So really what you're talking about is the long-term will of the people, and kind of the ancient will of the people being defended against the short-term, contemporary will of the people.

Matthew Brogdon:
 [06:01–07:05]
 Yeah. He sets up an opposition between popular sovereignty and the legislature in a way, right?  and what he's suggesting there is that when we the people enact a constitutional provision, we're being sovereign in some way that we're not whenever we vote in a legislative election. Like, ordinary elections just don't have the same authority as the processes we use to enact constitutional language. And we the people speak really authoritatively with the constitutional language, but we only speak in a sort of moderated form or a less authoritative form when we elect representatives. And so judges have to look at this and go, well, which one of these should I prefer? The will of the people in the legislature is kind of a weaker sauce—weaker form of popular sovereignty—or the will of the people expressed in the Constitution? And Hamilton has lots of reasons for wanting to prefer that, ’cause he thinks this is more stable.
Mm-hmm.
And elections are more, uh—I don’t know, what's the word? Yeah, the haphazard measure of what the people want.

Savannah Eccles Johnston:
 [07:05–07:30]
 Well, this is interesting, though, because you actually get kind of a flip on this by the time you get to, like, Oliver Wendell Holmes. The idea of the will of the people is embodied in Congress and in their current acts, and not in this old Constitution that is only very rarely touched by the people in the amendment process. So we've kind of flipped on which one is a more serious example of popular sovereignty.

Matthew Brogdon:
 [07:30–08:31]
 I mean, this was actually sort of a dispute between Hamilton and Jefferson. I've been co-teaching a class on Hamilton, Jefferson, and Madison—it's just all their writings—and it's, we call it Rival Founders. I've been co-teaching this with a friend who's visiting here, Brad Wilson. And, um, you know, Hamilton and Jefferson—and for that matter, Madison too is kind of on Hamilton’s side with this. There's this Jeffersonian idea of the sort of dead hand of the past: that a perpetual constitution gets to a certain age and it sort of aged out. Popular sovereignty has aged out because the generation that passed it is dead and gone.
Mm-hmm.
And,  Hamilton and Madison are both mortified by this view. I mean, they think, gosh, this is so dangerous because this is gonna undermine the idea that you have any permanence and stability in law. Jefferson thinks, great, sounds great. Let's, let's, you know—let’s hazard the whims of the moment and see what happens.

Savannah Eccles Johnston:
 [08:31–09:12]
 Right. Well, I think this kind of goes to a core of Jefferson’s—I'll call it misunderstanding—of stable government and good government. In his mind, revolution never ends. In many ways, it's just kind of lockstep with the French in this,  in 1800 perspective. But he didn't fight in the Revolutionary War, and he didn't actually have to do a lot of the work of the Constitutional Convention and of these early state periods. And so it's nice for him to come in and say, you—

 know, in some sense the revolution is perpetual. If you're Madison and you're Hamilton, you say, whoa, whoa, whoa, whoa, whoa. The hardest thing about revolution is ending it. It's creating stable government, and the way you do that is stability and veneration in the laws.

Matthew Brogdon:
 [09:12–09:59]
 Kinda reminded of that—you know, kids with Lego sets. You know, you always have that child in the family who sort of meticulously constructs the really complex Lego set over the course of days. And then there’s the kid who just likes to dump out the bin and do stuff, and they do not mind going over to the, you know, sort of gargantuan pirate ship Lego set and just sort of pulling off pieces at whim. Because for them, they're like, well, just forget something else and stick it on there. You know, like, what's the big deal? And this is, to me, sort of like Hamilton and Madison versus Jefferson on this, uh—because they're thinking about building institutions and durability and perpetuity. Like, they actually think about the idea of a perpetual system of laws that you don't have to go back and rebuild all the time.

Savannah Eccles Johnston:
 [09:59–09:59]
 Right.

Matthew Brogdon:
 [09:59–10:37]
 And Jefferson's idea of democracy is hostile to that notion—this idea that you're just going to inherit your political forms and be content with them. And he really is—I mean, at one point, one of the most shocking things I've seen Jefferson write, actually,  was at one point he's writing a letter to somebody, sort of, you know, thinking about this issue of,  perpetual laws and how it's the dead hand of the past ruling you. And he says, you know, you kind of need—and this might be in the same letter where he has the line about the tree of liberty has to be continually watered by the blood of patriots and—

Savannah Eccles Johnston:
 [10:37–10:40]
 Yeah, you wanna make sure the tyrants bleed too.

Matthew Brogdon:
 [10:40–11:25]
 That's really important. But in that same one, he says, you know—but that means you're gonna have to have some pretty rowdy people around. There are gonna be some, sort of, rebellious types, and this is gonna break out into these sort of small rebellions. And I think he has in mind here, like the Whiskey Rebellion, which happened early on in Washington’s administration and other things. And he actually says, he says these people perform an indispensable role. He says, in fact, the role is so indispensable that they're doing a sort of public service, and they should be—even if they commit crimes in the course of this—they should be pardoned. That a sensible statesman would pardon them for their small rebellions. And I thought: what do you think of January 6th, actually?

Savannah Eccles Johnston [11:25–11:42]:
 Right. Well, and what's interesting is what would he have thought of Shays' Rebellion leading up to the Constitution, right? This event terrifies people into Philadelphia—I guess into Annapolis, then into,  Philadelphia. But maybe he would've seen it as a good thing.

Matthew Brogdon [11:42–11:55]:
 Yeah.  well, in fact, he tells Madison, "I think you guys got carried away." This—this Shays' Rebellion thing kind of sent you all running for the hills. Maybe it's less of a big deal than you think it is.

Savannah Eccles Johnston [11:55–11:59]:
 Right. But I think he's writing this from France.

Matthew Brogdon [11:59–12:47]:
 So how this impinges on judicial review, though, right, is that judges look at a Constitution that’s inherited—it’s old law. In fact, the older it is, the more venerated it is, right? Nobody feels the way about the 22nd Amendment that they do about the First Amendment.
 We might have to test that theory at some point in the next couple of years, actually.
 Okay, um, and so,  you know, when judges are doing this, they’re sort of appealing to the idea of, like, “Hey, we all agreed to this a long time ago,” and you can't violate the bargain—even if you've sort of changed your mind or you found what you think are exceptions to it. And that's kind of what judicial review is—holding people to the original bargain, even if in the moment they want to depart from it. And that really smacks of the dead hand of the past controlling a current majority.

Savannah Eccles Johnston [12:47–13:22]:
 But I do think we need to clarify here—this is another question I get online a lot: What does this have to do with amendments? So, amending the Constitution changes the wording of the Constitution—meaning the Supreme Court can only rule on the Constitution as it’s written, and that includes amendments.
 So an amendment process is a completely valid way to change the old wisdom of the past according to modern preferences. The Supreme Court can't touch that. So we're not talking about the amendment process here, as the Supreme Court can't touch this. So let's just get that clarified.

Matthew Brogdon [13:22–13:33]:
 Okay. So, and in fact, we can use amendments to overturn Supreme Court decisions—and have. We've done that. How—how would we tabulate these? This has happened at least many times.

Savannah Eccles Johnston [13:33–13:34]:
  yeah. The 11th Amendment. The 13th Amendment was overturning it.

Matthew Brogdon [13:34–13:54]:
  the 13th Amendment. The 14th, insofar as it had a provision about citizenship, right? The birthright citizenship provision was overturning Dred Scott v. Sandford’s claim that free Black people could never be citizens of the United States. Right. Which— which other ones have we got? Income tax?

Savannah Eccles Johnston [13:54–13:59]:
  nine—yeah. Income tax is one. We know the 19th one overturns Minor v. Happersett.

Matthew Brogdon [13:59–14:44]:
 Right. That’s kind of an interesting one, because the Court goes, “Well, you didn’t clearly say that the 14th Amendment covered women.” Of course. And, you know, so the Court says, “We don’t really see that in the 14th Amendment.” So the 19th Amendment could either be overturning that old one—this is actually an interesting kind of dynamic. You can think of it either as overturning the Court’s judgment that the political rights of women weren’t included in the 14th Amendment, or you could see it as leaving the 14th Amendment as-is and sort of adding something totally new.
 Right? And does the 19th Amendment answer that in any way? Is there anything in it that sort of suggests that it’s doing one or the other? Not that I can think of. It just does it. Yeah. And leaves us to figure it out.

Savannah Eccles Johnston [14:44–14:55]:
 Yeah. Well, this lends to my general view of history, which is that women always lose. So even with the 14th Amendment—women always lose. So the 19th Amendment is a nice thing—the one time women win. It’s a good point.

Matthew Brogdon [14:55–15:07]:
 They’re winning in college right now. I think they’re—I think they’re beating the boys pretty soundly on earning degrees. And I have my own views on that. I think it’s more male flight—because women are joining into college institutions.

Savannah Eccles Johnston [15:07–15:41]:
 Oh, that’s interesting. Okay. But anyways, anyways—back to, do you like working outside? I think you’d like working where women are not. I think that’s the key. But anyways, this—now we’re getting sound,  sidetracked here. Sorry. So let’s get to Marbury v. Madison, which has nothing to do with women.
So Marbury v. Madison is the first time the Court kind of takes this power and says, “Yeah, actually, we do claim this,” even though it’s been assumed.
At the Convention, Ma— Hamilton has spoken openly about it in Federalist 78. The Judiciary Act of—what was it, 1798? Is that right? 1796?

Matthew Brogdon [15:41–15:42]:
  1789.

Savannah Eccles Johnston [15:42–15:45]:
 Wow. I'm really off. Thank you—1789.

Matthew Brogdon [15:45–15:48]:
 That’s one—one of the first three big things the first Congress does.

Savannah Eccles Johnston [15:48–15:57]:
 Right.  alludes to—or actually just directly grants—this power. It does—to overturn state laws. So this isn't new by the time you get to Marbury.

Matthew Brogdon:
 [15:57 – 16:36]
 No. In fact,  you know, Marbury is the first time the Supreme Court openly exercises the power of judicial review and declares a federal law unconstitutional. There are multiple instances in the 1790s of lower federal courts actually invalidating federal statute. And there are at least two other cases of the Court upholding federal statutes but saying if they were such-and-such, they would be unconstitutional and we’d have to strike them down. I think it was Ware v. Hylton and Hylton v. United States. And then there’s this famous case — United States v. Yale Todd.

Savannah Eccles Johnston:
 [16:36 – 16:37]
 Oh, I dunno about this one.

Matthew Brogdon:
 [16:37 – 18:22]
 Oh.  Well, it comes out of a series of cases. Congress told the circuit courts that they had to act as pension boards for Revolutionary War veterans. So the Secretary of War was empowered to provide lifetime pensions for Revolutionary War veterans and their dependents, but you had to figure out — and this was not easy at the time — had the person actually served? Had they actually suffered an injury? Was this person actually a descendant of this person who died? So, a lot of facts to figure out here.

And so what Congress did was they said, well, we do have these circuit courts floating around that sort of meet in each state twice a year, so we'll just have them act as commissioners for the pension system. So you’d go in front of the circuit court and demonstrate you were entitled to it. The circuit court would give you a decision and say, “Yes, yes, it sounds like you’re entitled to this.”

Now, it sounds like something a court might do. But then their decision would go to the Secretary of War, and the Secretary of War could either grant the pension or overturn it.

So this is a very serious problem. You’re basically making the court subordinate, in this factual determination, to a cabinet secretary in the executive branch. And so, three separate circuit courts who were asked to do this all hold it unconstitutional. One of them sends a letter to President Washington explaining, “We won’t even hear the cases because this is unconstitutional.” Two of them render decisions and refuse. Well, one of them renders the decision and says, “We can’t decide these cases,” and there’s actually a judicial opinion that says, “Can’t do this.”

And then one of them actually says, “Well, we can’t do it as a court, but we’ll, like, take off our judge robes and we’ll put on our pension commissioner robes and we’ll sit as a separate body.”

Savannah Eccles Johnston:
 [18:22 – 18:23]
 Ah, okay.

Matthew Brogdon:
 [18:23 – 18:58]
 So they all thought this is unconstitutional, as written by Congress. And somebody actually challenged — a guy named Yale Todd. Hence the name. It was somebody who had been denied —  denied benefit — well, I think had been granted benefits, and then the United States challenged his benefits.

Goes to the Supreme Court, and the Supreme Court upholds the decision of the Circuit Court saying that this was unconstitutional. The problem is we don’t have any written opinions in the case. We have a record of oral argument and we have a decision and order that says Yale Todd’s not entitled to the thing because the pension bill is unconstitutional.

Savannah Eccles Johnston:
 [18:58 – 20:14]
 So hence it’s Marbury v. Madison that is our benchmark.

Matthew Brogdon:
 [19:02]
 That’s the one where we sort of openly — and this is important — the episodes in judicial review that we remember or that we take note of are typically those that get public notice. Right?

So actually, the history of judicial review — even of acts of Congress — is expansive. There’s actually been something like 350-plus instances of the Court doing this. Up until a couple of years ago, we thought that there were only like 125.

Right? And then Keith Whittington — who’s at Yale now and was at Princeton — went through every case he could find in the U.S. Reports, trying to identify every case where the Court had said something about a federal law being unconstitutional. And he actually found 356 instances of it up through 2022.

So it’s three times as many as we thought existed. The difference was, we just didn’t take notice. Like, Congress didn’t even notice whenever the Court did this most of the time. There’s no official system.

Like, when the president vetoes a law, he writes a list of objections and sends it to Congress. Congress says, “Oh, the law’s been vetoed.”

There was no mechanism — never has been an official mechanism in American history — by which Congress is notified in any way.

Savannah Eccles Johnston:
 [20:14 – 20:15]
 Right?

Matthew Brogdon:
 [20:15 – 20:22]
 When a federal law is declared unconstitutional by a court, they just kind of have to — it has to come to their attention somehow, or somebody has to tell them.

Savannah Eccles Johnston:
 [20:22 – 20:50]
 But this kind of acts as a double-edged sword for the Supreme Court. Yes, it means they get away with — or not, maybe not get away, but they use this power far more frequently than we think. But the times that we pay attention to it are those extremely controversial political moments.

Marbury v. Madison is a deeply political decision. It certainly helps the expansion of the — and the independence of — the Supreme Court, and thus the Federalist project long-term. But there’s other — can you explain why that is the case?

Matthew Brogdon:
 [20:50]
 Like, how does it — what’s so political about it? Like, it’s pretty mundane on its face. Like, they said this provision buried away in the Judiciary Act is unconstitutional — saying the Court can issue writs of mandamus in original proceedings. That sounds sort of highly technical. How can that be, right? That’s not like striking down the Affordable Care Act, you know?

Savannah Eccles Johnston:
 [21:14 – 21:15]
 That’s true.

Matthew Brogdon:
 [21:15 – 21:17]
 So why is it such a politically consequential case?

Savannah Eccles Johnston:
 [21:17 – 21:48]
 Well, in some ways, it politically benefits the Jeffersonians, because now they get to appoint all of these justices. Because Adams’s nominees — including Marbury — haven’t been notified, so they don’t get to take their seats.

So you’d think this is a short-term win for Jefferson. He should be really happy. But what you’ve just done is declare the long-term independence of the Supreme Court and its power — and the power of the Constitution as the actual vehicle of popular sovereignty to thwart temporary political movements.

Matthew Brogdon:
 [21:48 - 21:59]
 Yeah. This is 'cause the Madison in Marbury v. Madison is Jefferson’s Secretary of State. So Madison wins—like, this is the weird thing. The administration won the case.

Savannah Eccles Johnston:
 [21:59 - 22:04]
 Yeah, just not long term. The Court wins long term.

Matthew Brogdon:
 [22:04 - 22:08]
 They only win—the Court says, you only win because we get to say what the Constitution means.

Savannah Eccles Johnston:
 [22:08 - 22:45]
 Exactly. Well, but there’s something kind of brilliant about this. The Court is denying itself this tiny little power that really doesn’t matter that much, and declaring for itself this massive power. And in a way, it’s symbolic. The Court is stepping into this checks-and-balances game with the other two institutions. And from that point on—not to say they weren’t before—they have played a significant role in American political history. Mm-hmm. A political role. You can think of some of our most controversial decisions. The Court is not a weak—it's certainly not the least dangerous branch, as Hamilton seems to think.

Matthew Brogdon:
 [22:45 - 23:01]
 Well, Hamilton didn’t say it was weak. Well, he said it’s the least dangerous branch—by far the least dangerous branch to the political rights of the Constitution. That’s what he says. So it’s the least likely to destroy your rights, is what he actually says.

Savannah Eccles Johnston:
 [23:01 - 23:59]
 The Court has played some big roles in American history, where it has certainly hampered rights—and in other cases expanded them. Yeah. What I’m trying to say is judicial review is the basis for the Court being a co-equal branch of government. This is what makes them powerful, but it also makes them extremely controversial and potentially problematic in a democratic system. So let’s think about some of the most recent cases where the Court has brought itself into deep political controversy. You can think about Obergefell v. Hodges, which basically legalizes same-sex marriage nationwide. Now, you can ask the question: what does this have to do with the Constitution? Surely this would be a democratic decision—that Congress needs to make that big choice for themselves. You know, man up, make the decision.

Matthew Brogdon:
 [23:59 – 24:07]
 But instead, it’s decided by the Supreme Court. Which—well, this is an interesting case too, right? Could Congress—I mean, Obergefell raises one of these questions, like—Congress doesn’t have any laws about marriage.

Savannah Eccles Johnston:
 [24:07 – 24:08]
 Right?

Matthew Brogdon:
 [24:08 - 24:12]
 Because the federal government typically doesn’t regulate marriage.

Savannah Eccles Johnston:
 [24:12 - 24:16]
 So they had previously had laws—the Defense of Marriage Act, DOMA, right?

Matthew Brogdon:
 [24:16 - 24:22]
 1996. To keep states—or to,  try to keep the Supreme Court from federalizing gay marriage.

Savannah Eccles Johnston:
 [24:22 - 24:23]
 Right?

Matthew Brogdon:
 [24:23 - 25:24]
 Yeah. So they’re sort of anticipating this sort of thing and going, well, we gotta fend this off. And even the Defense of Marriage Act was sort of like, well, this is not our job. It was supposed to make sure that, you know, like, whatever states decide about marriage just obtains in that state. They were trying to sort of prevent a nationalization of it. So it was kind of—it’s one of those interesting dynamics where the Court tackled an issue where Congress was saying, we really don’t want a federal policy on this. Like, pushing it away and going, okay, fine, you know, there’s gonna be gay marriage here and there’s gonna be gay marriage there, but we don’t want it everywhere—or we don’t wanna get involved in this. The Court, as you put it, sort of drags—not just drags itself—but sort of drags the whole federal government into the issue, in a way. So that’s one of those—I mean, maybe what you’re pointing at there is a situation where the Court can actually reach out and do things in policy areas with judicial review that even Congress would not normally touch with its regulatory power.

Savannah Eccles Johnston
 [25:24–25:29]
 Kind of the nationalizing effect there of the Supreme Court.

Matthew Brogdon
 [25:30–25:34]
 And that is pretty significant. I mean, that, that's deeply significant. Tremendous.

Savannah Eccles Johnston
 [25:34–25:52]
 Yeah. Well, and then let's think about what happens afterwards. So in the wake of the Dobbs v. Jackson decision, I believe Congress went and passed its own law legalizing same-sex marriage nationwide, just in case the Supreme Court ever overturns Obergefell. So now it's protected nationally.

Matthew Brogdon
 [25:52–25:54]
 Either way.  the, the Respect for Marriage Act—

Savannah Eccles Johnston
 [25:54–25:55]
 —is that what it is?

Matthew Brogdon
 [25:55–25:56]
 Yeah.

Savannah Eccles Johnston
 [25:56–25:58]
 Yeah. So, and it's, it's now thoroughly federal issue.

Matthew Brogdon
 [25:58–26:38]
 Well, the Respect for Marriage Act is, is as modest a version of nationalized gay marriage as you could conceive, but more than what existed before Obergefell. So the courts forced Congress into a situation where even they’re, they're sort of—oh gosh, this is a complex situation—because the Court says the Constitution requires marriage equality throughout the country. Dobbs v. Jackson comes along and says—well, which has nothing to do with gay marriage—but rolls back the abortion right.

Savannah Eccles Johnston
 [26:38–26:42]
 So, overturns Roe, Planned Parenthood v. Casey, and sends it back in some sense, back to a federal—back to the states, right?

Matthew Brogdon
 [26:42–27:41]
 Back to the states, back to a situation where every state decides for itself. People say, oh, well what if they do that with Obergefell and gay marriage? And so the Respect for Marriage Act comes back, which I think was crafted in part by some, some Utah-associated folks, interestingly enough—didn't know that—it helped put this together. The Respect for Marriage Act— gosh, I’m trying to, I wish I had reread the statute now, but I remember whenever I read it I thought, wow, this is a really quite limited, modest provision because what it actually does is it grounds—I think the only clear protection for gay marriage it actually provides is grounded in the Full Faith and Credit Clause. It says that every state has to afford full faith and credit to any marriage that’s already been contracted and any marriage performed in another state, right? So that means a state could, under that provision, go back and stop it. Like, if the Court overturned Obergefell, under the Respect for Marriage Act a court— a state—could go back and say, well, we’re no longer granting marriage licenses for same-sex couples.

Savannah Eccles Johnston
 [27:41–27:42]
 Right?

Matthew Brogdon
 [27:42–27:49]
 Just they couldn’t nullify the ones that already exist and they couldn’t prevent people coming from other states who are already married.

Savannah Eccles Johnston
 [27:49–27:50]
 Right.

Matthew Brogdon
 [27:50–28:28]
 So we’d have this weird patchwork of, of law system. But what it also did was that at the same time said that the 14th and First Amendments erected free exercise rights for folks who dissented from it. So it did both. The reason it passed on such a broad basis was it provided conscience rights for dissenters—for gay marriage—and at the same time provided some security for gay marriage, even if the Court overturned it. So, quite a compromise. But you’re right, a compromise that probably never would’ve happened had there not been Obergefell in the first place to sort of force people into that situation.

Savannah Eccles Johnston
 [28:28–29:32]
 But let’s, let’s talk about why Obergefell or Dobbs v. Jackson—really opposite decisions—here are so controversial, or why they feel so controversial, and it’s because of the aristocratic nature of the Supreme Court. These are unelected, life-tenured,  nine individuals, these gods on man-Olympus, who are making big decisions about what the Supreme Court does—or sorry, about what the Constitution does or does not say, often contrary to—or sometimes contrary to—prevailing public opinion, even when Congress hasn’t said something about this. There’s something about that that can feel deeply undemocratic. And it goes back to that Jefferson thing, which is: the popular will—is it the Constitution as interpreted by these nine folks? And that’s the key—it’s as interpreted by these nine folks, who are elite in every way, or is it the prevailing opinion of the masses as represented in Congress? And I think that’s the heart of why people are so bothered by the Supreme Court. It’s their aristocratic nature.

Matthew Brogdon
 [29:32–31:36]
 Yeah, this is hotly disputed, whether that’s really a problem or not, because there are folks who argue the Court actually doesn’t do that much that’s contrary to national public opinion. What the Court quite frequently does is take something that’s a matter of dispute and variation across the country, where you have outlier states that don’t want to sort of go along with what the rest of the country does. And federalism would normally let you have that variety. And most often judicial review is exercised—when we think of it in controversial versions—to pull those outlier states into conformity with the rest of the country. So judicial review is a kind of tool of national majorities to discipline and create uniformity with states that want to stay out of the prevailing direction in the country. So if that’s true, it’s not clear if it’s a democratic problem or if it’s a problem for federalism. So it might be a tool of national democracy, actually. In that telling, somebody like Mark Graber actually kind of argues this, that it thinks it’s a bit of a fiction that the Court’s anti-democratic. He actually thinks because of the way we appoint Supreme Court justices—because there’s such acrimonious appointment processes and so forth, and over time you’ve got nine of them, they were appointed by different people—Supreme Court justices as a whole tend to be far more moderate than the parties that they represent.

Oh, interesting.

I mean, if you look at—Republicans complain about this all the time, right? The justices—you know, you put people on the Court and they sort of betray you, your party platform. Graber argues this is a feature, not a bug, because what it means is the Court spends a lot of time crafting compromises on these acrimonious issues that actually reflect a very moderate settlement that represents a nationally democratic majority. In that way, they—I mean, what he’s describing is they act like a sort of a super-legislature that’s doing this kind of work, which is wildly controversial and I don’t find empirically compelling.

Savannah Eccles Johnston
 [31:36–32:24]
 So, well, here's a potential counterpoint to this. One of the keys in a democratic system is deliberation. That's why you have a representative institution — to deliberate. Does the Supreme Court undermine both the national deliberative process — neighbor to neighbor — and the congressional deliberative process by doing things like nationalizing same-sex marriage or overturning Roe v. Wade? Roe v. Wade is the first example, actually, of cutting short this really important abortion debate — mm-hmm — and just making a decision. And now, there is no path for a national deliberation on this issue. It's been cut short by nine people. Is that actually deeply democratic? Does it undermine the deliberative system? Is it better? Maybe it produces better results.

Matthew Brogdon
 [32:24–34:20]
 I'm not sure. Yeah. The response to this is that the deliberation we get publicly is not better because the Supreme Court has weighed in. I mean, the argument for it is — you sort of hear this — the most intelligent conversations and sort of calm, civil conversations we have on these steeply divisive issues happen in courtrooms, right? We let the lawyers argue about it, and let the judges ask them questions. And then the judges argue amongst themselves and give us well-reasoned, written opinions on it. And that's so much more reasonable than what would happen out in the hurly-burly of, you know, public debate.

If you look at — I think it was, was it Sheldon Molen? — or someone who wrote the famous article back in the '90s sort of disputing this. There's a famous essay on deliberative democracy that points out: yeah, but it actually hasn't made the public debate on abortion, for example, more reasonable or more deliberative. In fact, we're all arguing over what the 14th Amendment means — right? — and the role of judges, instead of arguing over what's at issue, which is: what’s the status of this being growing in the womb? Does it deserve legal protection? And what is the power of its mother over its life?

Those are fundamental moral and policy issues that the law needs to settle. But we don't argue over that. Instead, we argue over the fine points of substantive due process and how to enforce the 14th Amendment — which are all sort of secondary legal issues — instead of talking about primary policy questions. So that's a species, or like an example, of how the Court weighing in can actually sort of hyper-legalize our debate over things, and leave us arguing over legal technicalities and interpretive methods — you know, living constitutionalism versus originalism — instead of arguing over what's important.

So, you know, there's a pretty strong case that the Court’s undermining democratic deliberation.

Savannah Eccles Johnston
 [34:20–34:31]
 It's hard to pinpoint the cases where the Court should stay out of it and allow public deliberation, and the cases where the Court should, in fact, weigh in.

Matthew Brogdon
 [34:31–34:39]
 Yeah. When should they stay out? They should stay out — well, they should weigh in when the Constitution demands an outcome, and they should stay out when it doesn't.

Savannah Eccles Johnston
 [34:39–34:42]
 And that’s a very hard thing — to figure out what that means.

Matthew Brogdon
 [34:42–34:45]
 So now we're back to arguing over what the Constitution means.

Savannah Eccles Johnston
 [34:45–35:31]
 That's right. But this brings us back to what we said at the beginning, which is: we’re only going to talk about one check — one weapon — that the Supreme Court has against the other two branches. And it's because it is their chief weapon, and it is what makes them both a co-equal and fantastically powerful branch of government. And also, it's their greatest danger to that institution because it exposes them to, sometimes, democratic ire, to a lot of political controversy — drags them into maybe political debates they didn’t intend to be in — and sometimes death threats, if you're Brett Kavanaugh.

So judicial review is everything that the Supreme Court hinges on — both good and bad. But you could also argue — I mean, it's the Framers, that the Constitution dragged the judges into this.

Matthew Brogdon
 [35:31–38:16]
 Yeah. To, in order to make sure states didn't violate the Constitution, they wrote a Supremacy Clause and said state judges should do this — should make sure states don't violate the Constitution. So they threw it into the judicial process.

And then they wrote in Article III that the judicial power extends to cases arising under this Constitution — sort of where we started — which wasn’t originally there. Originally, it said the judicial power shall extend to cases arising under the laws of the United States. Right? And then they added the Constitution.

And then they had a little debate about: is it a good idea to give the judges a role deciding constitutional meaning? You know, the biggest dissenter from this actually was James Madison. Madison thought judges would not be up to the task of deciding these momentous constitutional questions — because constitutional questions are the most important political questions in our political order, right?

And so Madison thought: you actually need political institutions to do some of this. And so instead, he suggested, if you want to make sure states don't do unconstitutional stuff, make the states send their laws to Congress first, and then Congress can veto any state law they think is unconstitutional. That was Madison’s solution. He proposed it at the Convention.

And then he actually said: instead of having the Supreme Court decide whether federal laws are unconstitutional or not — or just having the president veto them — let’s put them together. Let's take the president and the judges and put them on a Council of Revision together, and Congress will send their laws to them. And they'll sit as like a little miniature third body of the legislature that can look at the law, revise it if they think it needs revision, and send it back over to the legislature.

Madison thought you should get the judges involved there so that they can actually be involved in the making of laws upfront and improve them. But of course, people at the Convention objected and said, yeah, but the question of the constitutionality of laws is going to come before the judges in their judicial capacity already. So they said: well, we’ve got judicial review — why do we need to get the judges involved in the veto?

And Madison all throughout thought judges are not strong enough to do this job. You're asking courts to do a thing that they're not really up to doing. They’re not very well constituted to settle constitutional questions for the polity. And so, you need to get political institutions to try to answer those questions.

And we picked judicial review instead of the political institutions — and the rest of the world has largely followed us, by the way. In the 20th century — you know, for a long time, people thought: that’s crazy — Americans let judges decide these questions. And then, eventually, with the explosion of written constitutions in the 20th century, the rest of the world went: yeah, I gotta enforce ‘em somehow. I guess courts, right?

Savannah Eccles Johnston:
 [38:16 – 38:32]
 But this will be perpetually controversial, and it's something that will consistently test the— as Madison would say—the power, the integrity of the Court to handle these big constitutional questions. So, did we make the right choice between judicial review and the political selection?

Matthew Brogdon:
 [38:32 – 39:09]
 I actually think it works quite well. I know this sounded all very critical throughout, but I think the system of constitutional law has worked fairly well. Obviously, the Court makes mistakes at times. I think we've corrected a fair number of those through constitutional amendment, and the Court corrects itself from time to time. And—but— I also think, and we didn't really get around to this, that the, you know, the judges are not really final. I mean, when they've really tried to run crossways of the public's judgment, the political branches find ways to limit the capacity of the Court to really follow through on that.

Savannah Eccles Johnston:
 [39:09 – 39:12]
 So, judicial review is a supreme power, but not a final power.

Matthew Brogdon:
 [39:12 – 39:28]
 Yeah, I think that's a good way to put it. You know, it's just like the President's power to wage war is supreme—as Commander in Chief, nobody else can go command the armed forces. On the other hand, it's also not final. There are ways to put a stop to it, which occasionally happens.

Savannah Eccles Johnston:
 [39:28 – 39:38]
 So I think—and by the way, I think that is the core theme of this Checks and Balances season—is that none of these powers are final. The other two branches—ultimately, the people—always have a say.

Matthew Brogdon:
 [39:38 – 39:42]
 Yeah, that's right.

Matthew Brogdon:
 [39:42 – 40:01]
 The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self-government that shapes every part of our civic life—from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document.

Matthew Brogdon:
 [40:01 – 40:25]
 This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's civic thought and leadership initiative.