The People Themselves: Popular Constitutionalism and Judicial Review.

Vol. 14 No.11 (November 2004), pp.916-926

THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW, by Larry D. Kramer. New York: Oxford University Press, 2004. 363pp. Hardback. $29.95 / £19.99. ISBN: 0-19-516918-2.

Reviewed by John Michael Eden, Duke University School of Law, Email: john.eden@law.duke.edu

and

John Paul Ryan, The Education, Public Policy, and Marketing Group, Inc. Email: johnpryan@ameritech.net

THE PEOPLE THEMSELVES (“People”) explores one of the most fundamental questions in constitutional theory: Which institution has the expertise and the responsibility to interpret the fundamental principles and commands embedded in the U.S. Constitution? The answer may seem obvious, even painfully so to most lawyers and legal academics, since MARBURY v. MADISON has a simple, unequivocal mandate: The Supreme Court not only has the expertise to evaluate the constitutionality of laws passed by the legislature, but it also has the responsibility to ‘say what the law is.’ On this received conception of judicial review the responsibility lies with the Supreme Court to decide which laws are consonant with the Constitution and which edicts run afoul of it. Clearly enough, it is conceivable that some jurists are more skilled than others in meeting this charge, and some are more prone to allow their own political and moral convictions influence their decisions unreasonably. Yet this received conception of judicial review holds that, despite the variance that can be expected in juridical skill among members of the Court, and notwithstanding the deleterious effects that personal convictions inevitably have on the evolution of jurisprudence, the Supreme Court is the institution dedicated to saying what the law is. This process inevitably requires not only excavating content that is already implicit in the Constitution but also teasing out the implications of its provisions, which often resist straightforward application to contemporary circumstances.

Larry Kramer, the recently appointed dean of Stanford Law School, finds the received view morally discomfiting in its own terms, anti-democratic at its core, and, perhaps most controversially, less historically defensible than one versed in constitutional history might initially suppose. For Kramer, the very notion that the Court, composed of nine elite members of society each of whom are appointed for life and are not as a pragmatic matter usually subject to impeachment or other forms of accountability, should be able to have a final and unalterable say on matters of fundamental concern is not only an idea that we ought to eschew today—it is also a notion that many of our forefathers dismissed as patently inconsistent with a commitment to democratic governance. Yet in addition to having been dismissed by our forefathers and castigated by many members of the early republic as poppycock, this doctrine of “judicial [*917] supremacy,” is, in Kramer’s view, vulnerable to at least three potentially deadly charges. First, it unreasonably elevates the decision making capacities of Justices on the Court, deceptively cementing into juridical practice an intuition about the cognitive talents of nine human beings that is probably false. Second, judicial supremacy lodges a form of political influence with nine unelected officials that is inconsistent with, and inferior to, earlier understandings of the role individual citizens should play in crafting constitutional culture generally and in giving content to specific constitutional principles. Third, the arguments usually offered for the necessity and appeal of judicial supremacy—including claims that the doctrine of supremacy is necessary to foster stability, consistency, and clarity in the Court’s decisions—typically either involve factual assumptions that are difficult to establish, or a blind insistence on the notion that the Court’s institutional independence effectively insulates it from the most insidious forms of self-interest and political favoritism.

Before tackling the main theses of PEOPLE, it is important to understand precisely what Kramer finds so indefensible about judicial supremacy and what kind of conception of the Court’s role in American political culture he thinks should supplant it. After considering how these two critical ideas are defined by Kramer, we will turn to a detailed examination of four weaknesses in PEOPLE’s principal thesis, and then carefully consider whether the book’s normative insights can be separated from a commitment to Kramer’s preferred conception of the Court’s role, which he calls “departmentalism” or “coordinate construction.” The main drift of this review is, in the end, quite simple: Although THE PEOPLE THEMSELVES does not convincingly make the case against what it misleadingly labels “judicial supremacy,” it successfully raises normative concerns about the relationship of a free people to its judicial institutions that deserve fuller attention and careful reflection.

What is perhaps the most lucid explanation of judicial supremacy comes quite late in PEOPLE, in the penultimate chapter entitled “Popular Constitutionalism, Circa 2004.” Judicial supremacy is “an ideological tenet whose whole purpose is to persuade ordinary citizens that, whatever they may think about Justices’ constitutional rulings, it is not their place to gainsay the Court. It is a device to deflect and dampen the energy of popular constitutionalism” (p.233). Two things deserve notice in this brief excerpt. First, judicial supremacy does not reflect a constitutional fact—that is, a state of affairs made necessary by the Constitution itself; rather judicial supremacy is an “ideology” that has the effect of persuading citizens that their energies, specifically their deliberative capacities, ought not to be turned to second guessing the Court. A ruse that encourages ordinary citizens to place their consciences in their pockets when particularly unsavory holdings are issued by the Court has a number of troubling consequences. In addition to affecting how Justices conceive of their own responsibilities and role in our constitutional structure, this ruse makes it exceedingly difficult for citizens to imagine and endorse legal arguments [*918] that run contrary to the Court’s caprice. As Kramer himself articulates this point, judicial supremacy “changes everything . . . and in ways that are subtle and pervasive and not seen only (or even mainly) in big, explosive confrontations about whether to obey a particular decision” (p.233). There is another, perhaps more helpful, way to put this: Even though constitutional scholars see the distinction between legal and moral analysis to be unstable and problematic in certain ways, PEOPLE goes much farther in suggesting that whatever differences there may be between ‘legal analysis’ as such and the type of moral and legal deliberation that ordinary citizens engage in, these differences in kind or degree do not justify imparting to all citizens an attitude of extreme ‘deference and submission’ to decisions made by human beings.

It is in light of these baleful features of judicial supremacy that PEOPLE advocates an approach to judicial review that restricts the authority of the Supreme Court. This approach Kramer calls “departmental” or “coordinate” construction. The main virtue of coordinate construction is that the authoritativeness of any particular decision depends “on reactions from the other branches and, through them, from the public” (p.252). While it is unclear precisely how individual citizens are supposed to make their preferences known so that the “other branches” can check particular decisions rendered by the Court, PEOPLE suggests that citizens in the early republic, meaning the period from about 1760 to 1840, “had both a right and a responsibility to act when the ordinary legal process failed,” provided that those very citizens continue to “profess loyalty to the government” and follow the ordinary laws the legitimacy of which was not currently in dispute (p.25).

In the early republic, of course, the local character of governance, including a far smaller population of just 4 million (in 1790), made forms of resistance considerably easier than they are today, since the rights to petition, pamphleteer, and even engage in certain forms of civil disobedience—including jury nullification—are more cumbersome, and on balance less effective, means of protesting the decisions of our highest court today. Nevertheless, Kramer insists, the self-understandings members of the early republic had of their role in “judicial governance” were considerably different from the views citizens share today. In this period ordinary citizens understood that all laws—especially laws that Kramer calls “fundamental,” that is, laws that touch on bedrock matters of moral, religious, or political concern such as abortion or euthanasia—had a certain type of prima facie authoritativeness. Citizens, to be sure, had a responsibility to comply with enacted laws. However, people living in the early republic believed themselves to be responsible for interpreting the content of enacted laws, and thus found it customary to “decide what [they thought] the law require[d] or command[ed]” (p.29). Thus Americans previously felt that it was their responsibility qua law-abiding citizens to make a distinction between recognizing the basic authority of the law, on the one hand, and the often difficult task of determining exactly what a particular law proscribes or requires, on the other. And so, when Kramer advocates coordinated construction, he is basically suggesting that (1) ordinary people need [*919] to reclaim this responsibility to interpret the law and (2) our conception of judicial review should make it possible for citizens to reclaim this duty and exercise it when they see fit. Precisely what this would entail is left open in PEOPLE, an issue to which we shall return shortly.

There are essentially four weaknesses in Kramer’s argument, each of which shall be independently addressed. The first weakness of THE PEOPLE THEMSELVES is that it is doubtful that the historical picture Kramer paints of the early republic is sound for the particular purposes for which it is offered. The second chapter, appropriately subtitled “The Origins of Judicial Review,” marks the true beginning of Kramer’s story. The story begins with a fascinating and sustained examination of how early Americans understood the relationship between constitutional principles and effective political governance, specifically of how the Constitution should be given content and justified. One particularly common method of breathing life into the Constitution that we take for granted today was less accepted during the founding. Since “[i]t was the legislature’s delegated responsibility to decide whether a proposed law was constitutionally authorized, subject to oversight by the people,” it naturally followed that allowing jurists to ascertain what the law was turned out to be inconsistent with the prevailing public understanding of judicial review. This thread is taken up again in Chapter Three, where we are given to understand that the Founders “expected constitutional limits to be enforced through politics and by the people rather than in courts” (p.91). This appears to be an eminently reasonable theory from the standpoint of the early republic, since the “whole point” of the American Revolution, Kramer suggests, was to “affirm the principles of popular sovereignty and the customary constitution” (p.49). Such principles apparently could not have been affirmed had the founders, and the populace they faithfully represented, entrusted the interpretation of the Constitution to mere judges.

Nevertheless, the appeal of this construal of the founding period is illusory for two reasons. The “people” present at the founding, the early architects of popular sovereignty in the States, were certainly a very homogenous lot, small in numbers and consisting exclusively of the landed gentry. These folks had elite educations, refined tastes, and what must have been recognized even at the time as uncommonly sophisticated views about political economy and democratic governance. This is not to say at all that the founders were out of touch with the people, or that the ruling class at the time of the founding intended to create and implement political institutions that the ordinary citizen would find alien or oppressive. Calling attention to the social status of the founders is meant to make one simple, though easily overlooked, point: Our founding fathers were not an inclusive group comprised of men and women, rich and poor, or white and black—but were rather an exclusive group with exclusive interests. And so, the contention, made confidently by Kramer toward the end of the third chapter, that the “ideal of depending on judges to stop a legislature that abused its power never even occurred” to the “Founding generation” is particularly misleading. Insofar as the [*920] founding generation itself consisted of elites—individual members of which would be highly unlikely to want protection against the actions of a legislative branch naturally suited to serve their interests—it is of no real moment that a judicial review was not a favored method of checking the power of legislatures. After all, elites are generally not in favor of voluntarily ceding their own power. Therefore, the inability or unwillingness of the founders to fully imagine or appreciate the theory of judicial review with which we are now familiar does not in and of itself count against that theory.

But there is a deeper reason than this for remaining skeptical of the relevance of the historical evidence presented in PEOPLE. In a limited sense, officials in each of the three branches of government function as stand-ins for ordinary citizens. Elected representatives in theory and in practice represent the interests of their constituents, presumably in most cases by supporting economic and social policies that will benefit constituents in the aggregate; non-elected officials, including judges, indirectly have responsibilities to represent the interests of ordinary citizens in the sense that they must respect constitutional and administrative constraints limiting their powers and privileges in executing their particular offices; and even Presidents in an important sense represent the public’s interests, by doing what is best for the polity over the long term. What we have learned through the experience of governing is that, to work well and to work fairly, constitutional democracy requires that the interests of the public be protected in different ways by the three branches. Of course, Kramer thinks that a democratic theory worth the name would belie this notion, on the theory that the founders assumed that constitutional limits could only be enforced through appropriately political means. The key term here is “appropriately political,” and the specious assumption made in PEOPLE with respect to this term is that we still believe what the framers may have believed about its scope—namely that “appropriately political” means of enforcing the constitution simply are legislative means, and nothing else.

In other words, the democratic theory that animates much of the historical analysis Kramer endeavors actually undermines the conclusions he endorses. Kramer insists that recognizing the legitimacy of “judicial supremacy” is tantamount to a forfeiture of our commitment to democratic governance, a feature of his view that becomes clearest when he considers the dominant theory of judicial review prior to MARBURY: “Courts exercising judicial review in the 1790s made no special claims of special or exclusive responsibility for interpreting the Constitution. They justified their refusal to enforce laws as a ‘political-legal’ act on behalf of the people, a responsibility required by their position as the people’s faithful agents” (p.98). The claim lurking behind this description of judicial practice is that we used to understand quite well that democratic politics requires a very thin, even toothless form of judicial review, whereas now we have somehow lost this sensibility.

Assuming we have lost this sensibility, do we want to reclaim it? Kramer overlooks that our post-MARBURY [*921] experiences with the Supreme Court have in fact enlarged our understanding of what democratic politics can consist in; even if “democratic politics” used to connote exclusively legislative acts, popular initiatives, and various forms of voting, we now think of politics as a broad umbrella undoubtedly wide enough to cover the workings and the decisions of the Supreme Court. And it is precisely because we give wide berth to the meaning of politics that we also are much more receptive to the idea that unelected officials, particularly members of the Supreme Court, should be allowed to interpret the law even if according this privilege to those Justices comes with a stiff price in some circumstances. Judges are actors in the play of democratic governance by our lights, even if our forefathers would have found such a notion unimaginable or indefensible. To be sure, our contemporary understanding does suggest one crucial difference between Supreme Court Justices and ordinary citizens: Justices must make peace with the Constitution first, and with their own consciences, not to mention the public’s passions, second.

The second flaw in PEOPLE is that coordinate construction (also “popular constitutionalism”) could rob individuals of the full panoply of rights and protections granted under the Fourteenth Amendment and the Constitution more generally. But why exactly would popular constitutionalism have this effect? To answer this question we must revisit Kramer’s conception of popular constitutionalism, with an eye to identifying precisely those elements within it that threaten to undermine the ability of marginalized groups to petition for redress when their civil rights are abrogated. As Kramer has noted elsewhere, under popular constitutionalism, “the role of the people is not confined to acts of constitution making, but includes active and ongoing control over the interpretation and enforcement of constitutional law” (Kramer 2004, 959). He never tells the reader what the exact scope of the public’s control over interpretation should be, or how enforcement of the public’s mandate could be executed without misadventures or violence. But it is possible to cobble together a basic picture of what he has in mind. The scope of the public’s power of review would not necessarily extend to every type of Supreme Court decision, but only to what Lincoln called “vital questions affecting the whole people.” There is no definition in PEOPLE of what a vital question is, and this in and of itself is no fault of Kramer’s, for the very meaning of “vital question” would necessarily be up to the people to decide in a given epoch. That said, the basic notion is clear: Questions of a technical nature are not likely to be considered “vital,” since they will not elicit the ire or dismay of the general public. Therefore, the Court should not have final say on questions of a non-technical nature touching on basic principle because judges are no better at answering these questions than ordinary individuals.

Kramer does appear to endorse a version of popular constitutionalism that would require the judiciary, particularly the Supreme Court, to defer to other branches of government once those branches intervened to invalidate or nullify a decision. In addition to these ex post invalidation powers, the other branches of government are encouraged [*922] to avail themselves of already existing formal control mechanisms, including removing jurisdiction from the courts and withholding funds indispensable to the courts’ continued operation (pp.232–33), actions that the Congress has either actually taken or threatened from time to time. Generally speaking, then, popular constitutionalism would allow the meaning of constitutional protections—due process, equal protection and scores of other rights—to be determined directly by elected officials, and thus indirectly by the people. The deep problem with this is that “the people”—the majority—are sometimes hostile to the civil rights of minority groups. Consider Leandro Andrade, a resident of California who received a life sentence for stealing $153 worth of videotapes under the state’s three-strikes law. The three-strikes law was originally enacted by California’s legislature, and then reauthorized through a state-wide referendum. As Erwin Chemerinsky, the attorney who represented Andrade, perceptively notes, the “people of California, wittingly or not, were implicitly limiting the reach of due process and sanctioning a life sentence for shoplifting” (Chemerinsky 2004, 1013). And, according to Chemerinsky, although Andrade lost in the Supreme Court by 5–4, under the view of popular constitutionalism Kramer espouses Andrade “would have had no chance at all” (Chemerinsky 2004, 1013). Chemerinsky is technically wrong: Under popular constitutionalism Andrade would have had a chance, since he could certainly bring an appeal before the nation’s highest court. However, Chemerinsky is absolutely correct that “there is no right to meaningful constitutional review” under Kramer’s theory (Chemerinsky 2004, 1013). After all, had the Court decided in Andrade’s favor, thereby rendering California’s three strikes law unconstitutional, the California legislature and courts would be free to ignore the Court’s ruling. Judicial review would be a joke, and, for marginalized citizens like Andrade, a very cruel joke.

The third weakness in Kramer’s analysis concerns not the impact of coordinate construction on civil rights, but rather the distinct—but certainly related—question of how to ensure that contemporary courts remain equipped to identify systematically the defective aspects of extant law. There are limits, after all, to the degree of expertise and deliberation that informs modern congressional legislation. Notwithstanding the amount of information legislators have at their fingertips, as well as the resources they have to evaluate the short and long term impact of legislation, law-making is not a perfect science and unconstitutional laws are bound to be passed from time to time—despite the fact that many lawmakers today are lawyers. With this in mind, it is important to design a form of judicial review that is more—not less—likely to provide an efficient way of identifying new laws that directly abrogate or indirectly undermine the individual liberties guaranteed under the Constitution.

We have already encountered Kramer’s preferred model of judicial review: The Supreme Court shall render decisions and even make some headway in interpreting the Constitution, but in some under-described sense the citizenry (the majority, special interest groups, or who exactly?) shall indirectly have a final say in contexts where another branch of [*923] government intervenes to nullify the Court’s action. It is easy to see how this would lead to a less, not more, efficient scheme for identifying unconstitutional laws. Disgruntled parties would be less likely to bring civil rights litigation under a system of popular constitutionalism. What is particularly disconcerting is that the vulnerability of a minority is exacerbated under popular constitutionalism: The more vulnerable the minority, the less likely the majority will sympathize, and the less likely the majority will sympathize, the less likely it is that the legislative or executive branches will respect a decision protecting minority interests rendered by the Court. There would be, in other words, an inverse relationship between the urgency of constitutional protection and its probable achievement. This is especially true when the Court has considered “vital questions” that affect the entire nation and about which there is fierce disagreement. Thus, if we hold, as we should, that there are constitutional protections whose content does not completely depend upon the attitudes of the majority, and if we believe that there should be an efficient way of preserving those protections, then the form of judicial review we currently enjoy is preferable to popular constitutionalism.

The fourth and final weakness is theoretical: Even if it were true that judicial supremacy was a very radical innovation at the time it emerged and began to seduce the popular imagination, one can still insist that what Kramer pejoratively calls judicial supremacy makes considerably more sense than the form of popular constitutionalism advanced in PEOPLE. There are numerous ways of developing this theoretical critique, but the most compelling approach is to begin with what John Rawls has called the fact of “reasonable pluralism”—that is, the fact that we live in a social context in which reasonable people disagree on a wide range of social, economic and religious questions. We differ on abortion, euthanasia, stem-cell research, and innumerable public policy questions. Living in such a context requires cooperation and agreement if society is to function efficiently and with an acceptable modicum of stability. Reasonable pluralism requires that procedures be developed to facilitate consensus among large groups of people who often vehemently disagree with each other.

With this general sketch of reasonable pluralism in mind, consider the received view of judicial review in contrast with the version advocated in PEOPLE. While our current model allocates the responsibility of interpreting Constitutional protections to an elaborate system of federal courts, popular constitutionalism leaves that complex and costly system in place and then allows—through under-described procedures and practices—the public to nullify the solutions arrived at through those procedures. Thus, instead of encouraging political consensus via adjudication about matters of constitutional moment, Kramer’s model of review allows political majorities to dismantle and destroy whatever fragile stasis constitutional adjudication achieves. Because Kramer is so convinced that we are currently living under a judicial oligopoly, a system in which unelected tyrants get to decide, whimsically or with cold calculation, which constitutional provisions deserve [*924] protection and which shall be relegated to the trash heap, he fails to take note of the stabilizing effect of final, binding decisions on political consensus. Of course, he recognizes all too well the tendency for public opinion to sway the Justices, but he remains blissfully unaware of what should be all too obvious: Constitutional adjudication functions in part as a mechanism that solidifies political consensus on “vital questions.” It does so not by soliciting the counsel of transitory public opinion, which is itself periodically self-interested, impulsive and unreflective, but rather by carefully weighing the burdens of legislation on all people, whether they live in privilege or privation, against the benefits that would accrue to all were the law left as it is. Political consensus is not moral consensus, of course, and we are no more bound to believe morally what the Supreme Court asserts legally than we are to accept the legitimacy of a President’s policies on the basis of his sound mandate to hold office. In a time marked by substantial disagreement, we sometimes, though surely not always, need the Court to usher in consensus—even if that consensus is only tentative and subject to further judicial development and revision.

It may appear that popular constitutionalism ought not to be taken seriously, but that could not be farther from the truth. THE PEOPLE THEMSELVES certainly is a serious, provocative meditation on what kind of legitimacy the Supreme Court ought to have in a constitutional democracy. PEOPLE is also a book that raises the stakes with respect to a host of questions about the comparative deliberative capacities of ordinary citizens and their leaders. Kramer forces us to take seriously the possibility that Supreme Court Justices are no better than we are at deciding matters of fundamental moral and political concern. And as we have seen, he also provides a number of appealing arguments as to why contemporary assumptions about the Court’s special competence include distortions that, were they to remain unchecked, will eventually undermine the collective commitment Americans share to establishing a society of free and equal persons. We are, after all, a people who believe in self-governance, a people committed to the idea that critical political decisions should not—as a general matter—be allocated exclusively to the elite. With Kramer, then, we should be comfortable admitting that in a very important sense the Constitution is, in Franklin D. Roosevelt’s words, “a layman’s instrument of government” (Roosevelt 1937). More importantly, we should thank Kramer for forcing us to take a hard look at the undeniable social costs of judicial review. Our current form of judicial review requires us to subrogate the moral urge to say what we think about matters of constitutional principle to members of the Supreme Court, which essentially gives Justices the power and license to render legal decisions often at variance with our moral intuitions. We can still say what we think, but our words alone will not have the legal impact Kramer wishes they would.

But this stimulating book does leave much to be desired as an inquiry into what shape constitutional jurisprudence should take today, for its principal thesis both downplays the degree to which support for civil liberties waxes and wanes over time and too skeptical of [*925] need for an independent judicial branch unfettered by political micromanagement. In the final analysis, Kramer’s plea for popular constitutionalism reflects contemporary politics. At a time when the Supreme Court is held in comparatively high regard by the American people, the Court has been under fire from legal and social science scholars for numerous decisions that promote conservative values and politics, including the resolution of the 2000 presidential election in BUSH v. GORE (see e.g., Keck 2004). Despite some protestations to the contrary (pp.223-224), Kramer is unlikely to have made such a critique of the Court in the 1960s, in the shadow of BROWN v. BOARD OF EDUCATION and its progeny—a set of decisions that only segregationists resisted with verve.

This is not to suggest that Kramer’s theory is incapable of deftly explaining why the public often accepts as legitimate whatever the Court says the law is. In fact, the opposite is true: PEOPLE begins and ends with the idea that an authentic republican citizenship requires meaningful, consistent engagement with democratic politics—which for Kramer means a firm commitment to viewing the Constitution as a document ‘the People’ have the capacity and the responsibility to interpret for themselves (p.228). This theory is consistent with what most readers will probably ruminate on as they turn the pages of PEOPLE: Don’t most Americans care more deeply about the heated policy issues of the day than abstract constitutional principles like judicial review, the role of the three branches of government, federalism, and the like? Perhaps so. To his credit Kramer points out, as any astute political theorist would, that the consistency of Supreme Court jurisprudence with popular political sentiment does not imply that the Court should have—as a matter of constitutional principle—the last word. Kramer is absolutely right that the citizenry may merely be caught in a state of lethargy—citizens do not protest what the Supreme Court pronounces because they do not feel qualified to do so. But even so, PEOPLE fails to explain how popular constitutionalism could possibly allow Justices, individuals with life tenure and irreducible compensation, to craft law that preserves often unpopular civil liberties but nevertheless can be summarily rejected by an unsatisfied public.

REFERENCES:

Chemerinsky, Erwin. 2004. “In Defense of Judicial Review: A Reply to Professor Kramer.” 92 CALIFORNIA LAW REVIEW 1013-1026.

Keck, Thomas M. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: The University of Chicago Press.

Kramer, Larry D. 2004. “Popular Constitutionalism, Circa 2003.” 92 CALIFORNIA LAW REVIEW 959-1012.

Roosevelt, Franklin D. 1937. “Address on Constitution Day, Washington, D.C.” (Sept. 17, 1937). In Samuel I. Rosenman (ed), 6 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 359, 362–63, 365. New York: Macmillan (1941). [*926]

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

BUSH v. GORE, 531 US 98 (2000).

MARBURY v. MADISON, 5 US 137 (1803).

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