Book used: Constitutional Law, 16th Edition, 2007. Sullivan and Gunther. Foundation Press.
Chief Justice Marshall wrote in Marbury vs. Madison (1803), “…and act of the legislature, repugnant to the constitution, is void” (7). Judicial review provides the Supreme Court the power to invalidate a law passed by Congress and the Executive—the elected representatives of the people. The Supreme Court justices are not accountable to the other branches of government and are not elected by the people, but keep their position until they decide to resign, die or are removed. Thus, what prevents judicial hubris and judicial tyranny from destroying the laws created by the representatives that were elected by the people through judicial review? In short, just as the Supreme Court asserted its right to judicial review, it also initiated its own restraint policies through standing, its refusal to intervene in political questions, and the ashwander rules.
The Supreme Court denies a hearing to nearly all of the cases sought by litigants and prevents a myriad of other litigants from attempting to seek redress from the Supreme Court through self-imposed restraints; such as the lack if standing. Standing restrictions on constitutional adjudication require that litigants have “suffered an ‘injury [injury] in fact’—an invasion of a legally-protected interest… connection [causation] between the injury…traceable to the challenged action of the defendant, and… the injury will be redressed [remedy]” (33). These are the stamps of standing and if one of the stamps is not met, then the Court denies itself the opportunity to hear the case.
The Supreme Court also limits its authority through “prudential limits on (1) third-party standing, (2) generalized grievances, and (3) suits outside a law’s zone of interest” (43). Third party standing generally denies parties the occasion to be heard before the Supreme Court because they are not directly injured. Craig v. Boren (1976) was an exception to the self-imposed court restraint because the economic interest that affected his ability to provide the injured party was a commodity; in his case, beer.
The Court will not hear a case if there was no demonstrable injury, such as bodily or economic harm; though intangible injuries, such as vote dilution or an aesthetic offense, may be allowed—especially since the court did not initiate this limitation on its power until 1970 (41). For example, Justice Scalia said in Lujan v. Defenders of Wildlife (1992), “There are no facts alleged to show that damage to the species will produce imminent injury to plaintiffs” (Dr. Fino).
Redressability, or the Supreme Court’s foresight to provide a remedy for the plaintiff, limits the Court’s power from tyranny. In Allen v. Wright (1984), the Court decided that the tax exemption alternatives to public schools was “excessively generalized” and the Majority Opinion of O’Connor described the possible remedy as “entirely speculative” (Dr Fino). The Court decided that it could not know whether or not the remedy to change IRS policy might [in fact] alter private schools financing in order to redress discrimination. Justice Scalia said of redressability (Lujan v. Defenders of Wildlife, 1992), “There is no assurance that the threat of withdrawing US funds will cause the projects to be terminated” (Dr. Fino).
Standing also requires that injury be neither moot, because the injured would no longer be afforded a remedy; or ripe, in order to prevent precipitated adjudication. Roe v. Wade (1973) was determined by the Court as not moot even though she was no longer pregnant because the substance of her cause affected women that were currently pregnant and would be pregnant in the future and would seek an [illegal] abortion. Thus, Row v. Wade was not moot because “it could truly be ‘capable of repetition, yet evading review’.” Ripeness or “anticipatory relief” may be illuminated in Laird v. Tatum (1972), since he sought protection from illegal surveillance, but had not yet been harmed [Injury] by the law, and so was denied an opportunity before the Court (48).
Threshold requirements restrict the court’s power because it chooses to limit the possible merits of a case in favor of self-restraint. The Court denies the Executive and Congress opinions on laws that they might enact as a restraint against entanglement between the three equal branches of government. For example, the Supreme Court denied President Washington legal advice regarding American neutrality concerning the war between France and England. The Supreme Court, in this manner, denied itself the power to be consulted on political matters in order to preserve checks and balances. The Supreme Court, therefore, is the last guardian of the people against possible tyranny of government against the people of the United States.
A significant decision by the Court to engage a possible justiciable political question was Baker v. Carr (1962). This case was political in nature because it sought to redress the injury of malapportioned legislatures that harmed the representation of the voters. The Tennessee State Legislature ignored a State constitutional obligation to reapportion the districts for appropriate representation and the plaintiff intelligently brought suit under the 14th Amendment. The Supreme Court decided that this case was not a political question because it did not interfere with the other branches of government, and concluded that it did violate the fourteenth amendment.
Finally, the Court avoids political tyranny and judicial hubris by adhering to Justice Brandeis’ afterthought recommendation with respect to judicial restraint as a result of the Ashwander v. Tennessee Valley Authority decision (1936). To summarize, the Supreme Court will not anticipate the constitutionality of a law before utterly necessary. The case must have precise facts. The State Supreme Courts should be respected unless unmistakably out-of-order. And cases should not be permitted if they lack personal or property rights. These recommendations, again, are self-imposed by the Court on the Court..
Thus, the U.S. Supreme Court is not likely to engage judicial tyranny or judicial hubris because of the above mentioned restraints it places upon itself. Due to these self-imposed rules, it has rarely usurped the power of Congress or the Executive. And when it has done so, such as Brown v. Board of Education (1954), it was generally necessary to protect the people from their government, because the government had usurped freedom from the people.
Political Pipeline 