The Power of Judicial Review

Chapter 1

The Power of Judicial Review

The Supreme Court’s status as the final arbiter of the Constitution’s meaning is established not by constitutional text but by the Court’s interpretation of it. The usual starting point for any discussion of judicial review is Marbury v. Madison (1803). This case arose from President Jefferson’s refusal to deliver the commission of a judge appointed by President Adams. Although the Court did not require the President to deliver the commission in this case, it declared the power to do so. More than a century and a half later, President Richard Nixon confronted the Court with a claim that raised similar issues with respect to the judiciary’s power over the presidency. This case concerned whether the President, on the basis of executive privilege, was immune from having to participate in the criminal justice process. In United States v. Nixon (1974), the Court determined that the President was accountable to the judicial process and ordered him to comply with an order compelling production of evidence in a criminal proceeding.

United States v. Nixon

Citation: 418 U.S. 683.

Issue: Whether executive privilege enables the President to resist a judicial order directing him to provide evidence in a criminal proceeding.

Year of Decision: 1974.

Outcome: It is the role of the judiciary to determine whether the executive privilege claim or needs of the criminal justice process should prevail.

Author of Opinion: Chief Justice Warren Burger.

Vote: 8-0.

The power of judicial review was established as a general proposition early in the nation’s history. Its specific implications have been developed, however, through subsequent case law. In the 1950s, for instance, some states challenged the Court’s authority to order desegregation of public schools. Citing Marbury v. Madison (1803), the Court in Cooper v. Aaron (1957) reaffirmed that it had “the power to say what the law is” and ordered the implementation of desegregation. The Cooper decision established the Court’s constitutional authority in relationship not only to the federal government but also to the states.

The next significant constitutional challenge to the scope of judicial review arose in circumstances that, like those in Marbury, concerned the President and the Court. It arose following a politically inspired burglary of Democratic Party national headquarters during the 1972 presidential election campaign. Two years later, in the course of a special prosecutor’s investigation, a grand jury indicted several executive aides and advisers and named President Nixon as an unindicted coconspirator. The district court, at the special prosecutor’s request, subpoenaed documents and tapes relating to conversations between the President and his aides and advisers. Although providing edited transcripts of those conversations, the President moved to quash the subpoena on grounds the tapes and other materials were protected by executive privilege. After the district court rejected the President’s arguments, the controversy was presented to the Supreme Court.

The Constitution does not mention executive privilege in specific terms. President Nixon argued, however, that it was implicit in executive power. Without such protection, he maintained that it would be impossible for policy makers in the executive branch to engage in open and frank discussion. The Court agreed with the President, as evidenced by its observation that “government . . . needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning.” Without the ability to keep internal communications confidential, members of the executive branch would be chilled in their discourse. If the risk of public disclosure had to be assumed, they would be less willing to assume the intellectual risks necessary for dynamic and fully reasoned policy making. Although not disagreeing with this premise, the Court ruled against the President with respect to his conceptualization of the privilege and its applicability in this case. Specifically, it rejected the contentions that (1) his claim was beyond the scope of judicial review and (2) executive privilege was an absolute barrier to the Court.

In rejecting the argument that the privilege claim was beyond its power of review, the Court restated the central premise of Marbury v. Madison—that the judiciary has the ultimate power to decide “what the law is.” From the Court’s perspective, “an absolute, unqualified privilege” would undermine significantly the “primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” Such an impediment “would plainly conflict with the function of the courts” under the Constitution. The Court, however, made a significant allowance for the presidency by finding that a presidential claim of confidentiality is presumptively privileged. What this determination means is that the chief executive could prevail upon a claim of privilege when a court finds that the interest of confidentiality outweighs the interests of the criminal justice system.