The judiciary has thus claimed not only the power to act as the final interpreter of the Constitution, but also the right, independently of the Constitution, to interpret the political system under which we live, and make all legislative acts conform to its interpretation of that system. According to this doctrine the courts are the final judges of what constitutes republican government and need not base their power to annul a legislative act on anything contained in the Constitution itself. If we accept this view of the matter, legislation must conform not only to the Constitution as interpreted by the judiciary, but to the political and ethical views of the latter as well. The President and Congress derive their authority from the Constitution, but the judiciary claims, as we have seen, a control over legislation not conferred by the Constitution itself. Yet, while laying claim to powers that would make it supreme, the judicial branch of our Federal government has, as a rule, been careful to avoid any open collision, or struggle for supremacy, with the other branches of the government. It has retained the sympathy and approval of the conservative classes by carefully guarding the rights of property and, by declining to interfere with the political discretion of Congress or the President, it has largely escaped the hostile criticism which any open and avowed attempt to thwart the plans of the dominant party would surely evoke. But in thus limiting its own authority, the Supreme Court has attempted to make a distinction between judicial and political powers which does not appear to have any very substantial basis. The essential marks of a judicial power, Judge Cooley tells us, are "that it can be exercised only in a litigated case; that its direct force is spent in determining the rights of the parties to that case; and that unless and until a case has arisen for judicial determination, it can not be invoked at all."[92]
"The power given to the Supreme Court," he says, "to construe the Constitution, to enforce its provisions, to preserve its limitations, and guard its prohibitions, is not political power, but is judicial power alone because it is power exercisable by that court only in the discharge of the judicial function of hearing and deciding causes in their nature cognizable by courts of law and equity."[93]
In the first place it is to be observed that judicial power as thus defined is practically co-extensive with that of the legislature, since scarcely an exercise of legislative authority could be mentioned which would not affect the rights of persons or of property and which could not, therefore, be made the subject of a judicial controversy.
In the second place, it must be remembered that the Federal judiciary in assuming the exclusive right to interpret the Constitution has taken into its keeping a power which, as we have seen, was not judicial in character when the Constitution was adopted, and is not even now considered judicial in any other important country. In declaring a legislative act null and void it is exercising a power which every sovereign law-making body possesses, the power to defeat any proposed legislation by withholding its assent. The mere fact that our Supreme Judges and our legal writers generally have with practical unanimity called it a judicial power does not make it such. That it is in reality a legislative and not a judicial power is amply confirmed by the uniform and time-honored practice of all other nations, even including England, whose institutions until a century and a quarter ago were our own.
There is, however, no difficulty in understanding why those who framed the Constitution and controlled its interpretation exhausted the arsenal of logic in trying to prove that it was a judicial power. This was merely a part of their plan to make the Supreme Court practically a branch of the Federal legislature and thereby secure an effective check on public opinion. As the power could not be expressly given without disclosing too clearly the purpose of the Convention, it was necessary that it should be implied. And it could be held to be implied only by showing that it was a natural, usual and, under the circumstances, proper power for the judiciary to exercise. Unless it could be established, then, that it was essentially a judicial function and not a political or legislative power, its assumption by the Supreme Court could not be defended on any constitutional grounds. This explains the persistent and untiring efforts to convince the American people that the power to set aside an act of Congress is purely judicial—efforts which, though supported by the weight of American authority, are far from convincing.
The Supreme Court has, it is true, time and again expressly disclaimed all right to exercise legislative or political power; yet under the pretext that the authority to annul legislation is purely judicial, it has made use of a power that necessarily involves the exercise of political discretion. The statement, then, that it is the settled policy of this body not to interfere with the political powers of the other departments can not be taken literally, since under the accepted interpretation of the Constitution it has the power to, and as a matter of fact does interfere, whenever it declares an act of Congress null and void.
It would be a mistake, then, to suppose that the Federal judiciary has suffered any loss of influence through its voluntary relinquishment of the veto power in the case of political questions. This self-imposed restriction on its authority merely affords it a convenient means of placing beyond its jurisdiction measures which it may neither wish to approve nor condemn. And since the court must decide what are and what are not political questions, it may enlarge or narrow the scope and meaning of the word political to suit its purposes. As a matter of fact, then, the power which it appears to have voluntarily surrendered, it still largely retains.
Upon the whole, the Supreme Court has been remarkably fortunate in escaping hostile criticism. Very rarely have its decisions and policy been attacked by any organized party. In the platform of the Republican party of 1860 the strong pro-slavery attitude of the court was, it is true, severely denounced. But from that time until 1896 no party dared to raise its voice in criticism of the Federal judiciary. Both the Democratic and the Populist platforms of the latter date, however, condemned the Income Tax decision and government by injunction. The Democratic platform also hinted at the possible reorganization of the Supreme Court—the means employed by the Republican party to secure a reversal of the Legal Tender decision of 1869.
This comparative freedom from criticism which the Supreme Court has enjoyed until recent years does not indicate that its decisions have always been such as to command the respect and approval of all classes. It has from the beginning had the full confidence of the wealthy and conservative, who have seen in it the means of protecting vested interests against the assaults of democracy. That the Supreme Court has largely justified their expectations is shown by the character of its decisions.
During the first one hundred years of its history two hundred and one cases were decided in which an act of Congress, a provision of a state constitution or a state statute, was held to be repugnant to the Constitution or the laws of the United States, in whole or in part. Twenty of these involved the constitutionality of an act of Congress. One hundred and eighty-one related to the Constitution or the statute of a state. In fifty-seven instances the law in question was annulled by the Supreme Court on the ground that it impaired the obligation of contracts. In many other cases the judicial veto was interposed to prevent what the court considered an unconstitutional exercise of the power to regulate or tax the business or property of corporations.[94]