By: Hyung Gyu (Leo) Sun   [7/15/22]

The process by which courts rule on the constitutionality of state or federal government’s actions is called judicial review. Judicial review by the U.S. Supreme Court creates the body of decisions that we deem as the law of the Land. That is, the Court adjudicates whether or not certain government actions or decisions are invalid because they violate certain provisions of the Constitution. Without this process of rendering the Constitution enforceable as law, the Constitution can merely be perceived as a listing of standard principles and ideals.

By its nature, judicial review can often act against the wishes of the majority. For example, when a state legislative branch passes a statute or takes an action and the Supreme Court subsequently rules the statute passed or the action taken by the state violates the Constitution, the ruling may be acting contrary to majoritarian sentiments. However, the Framers of the Constitution also recognized that leaving the majoritarian power unchecked may lead to tyranny of popular democracy. Against this backdrop, the Framers’ concern that elected representatives can disregard the core values under the Constitution (such as by not safeguarding individual rights against an unrestrained majority), the doctrine of judicial review came into existence and became an indispensable part of our constitutional system of government. But what happens if the Supreme Court fails to grasp the core values when reading the Constitution? Can such reading ever be challenged or rejected by the people?

(1) Amendment of the Constitution
People can express their disagreement with the Court’s reading of the Constitution by amending the Constitution. Amendments may be proposed either by Congress, through a joint resolution passed by a two-thirds vote, or by a convention called by Congress in response to applications from two-thirds of the state legislatures. To ratify the amendments, three-fourths of the state legislatures must approve them, or ratifying conventions in three-fourths of the states must approve them. These are difficult goals to accomplish, especially in the midst of the current atmosphere of politics, but are not impossible.

(2) “Court Packing”
A second way to disagree with the Court’s reading of the Constitution is through a majority political party’s exercise of its power to appoint or change the number of the Supreme Court Justices. Supreme Court Justices and all other federal court judges are appointed by the President with advice and consent of the Senate. If the President and the majority of the Senate belong to a same political party, they may fill judicial vacancies with future Justices that has views that the party believes is more in line with popular thinking, and is against the Court’s current reading of the Constitution. In addition, the Congress may vote to expand the Supreme Court from 9 to 12 Justices, leaving the President to appoint three new Justices with the aforementioned views.

(3) Continuous Opposition by the Public
When the Court rules on one occasion that certain actions by a state government are invalid, and if the super-majority of the public does not agree with such ruling, there is a good chance that other actions of the same nature (often with slightly different factual background) will continue to be introduced, enacted, enforced, and litigated at court, some of which will end up in the Supreme Court. This will lead the Court to revisit some issues that it previously held invalid and sometimes cause individual Justices to change their minds on them.

So the short answer to the question of whether the Supreme Court’s reading of the Constitution can ever be challenged is yes. But none of the methods above can be easily executed. Nor can they occur in a short span of time. This reiterates that the Court’s decisions, whether or not they are ultimately overturned in the future, leave a huge impact on the daily lives of the people for generations and that the Court exercises a huge authority in performing its functions. It also infers that, contrary to our common belief, the U.S.’s constitutional system of government does not, and also was not designed to, simply embrace majoritarian or “pure” democracy.

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