A careful assessment of the history of American judiciary reveals that the Supreme Court has played a significant role in helping move the nation toward progress. It also has to be admitted that the Supreme Court has at times been a barrier to progress, mainly because of its preoccupation with the technical aspects of constitutional law and the anxiety to protect the prevailing legal system. To its credit, the Supreme Court has handed many landmark judgments for American civil society including such verdicts as those in Rowe v. Wade (pertaining to abortion), Brown v. Board of Education (relating to racial segregation in schools), and more recently Lawrence v. Texas (dealing with homosexuality), etc.
But the Supreme Court is not, and has not been instituted to be, the fundamental agent of social change. This role lies with the citizens of the nation and herein lays the conflict. As Mark Tushnet alludes in his article, the political nature of nominations to the Supreme Court makes it a more democratic enterprise. Much of the criticism about the Supreme Court had centered on its overwhelming authority to negate, annul or significantly modify legislations passed by the House of Representatives, apparently undermining the power and effectiveness of democratic processes. The situation is made worse by the history of conservative bias on part of Supreme Court judges.
It is in light of these deficiencies that Mark Tushnet had proposed the End Judicial Review Amendment (EJRA) to the Constitution of the United States, in effect taking the constitution away from the Courts. Yet, at this juncture it is a matter of mere speculation how effective the hypothetical EJRA will be in making the Supreme Court a more direct participant in social progress.
In spite of the Supreme Court partaking in social progress, the thrust for changing status quo has always been from below, in the form of populist movements. In light of this fact, more legislative authority for the Congress and its member representatives, would lead to the empowerment of democracy, although it might at times undermine tenets of constitution. In my opinion, the best solution to this quandary lies in striking a balance between the executive and judicial branches of government. This would entail, what could be termed as “weak” judicial review procedures, which help point out how new legislations deviate or fulfill constitutional principles without affecting their validity as laws.
Some European nations already have in place such “weak” judicial review systems, although their applicability to the United States is open to debate. There are also reports that this sort of judicial review is not all that effective in promoting progressive social change. While Mark Tushnet’s proposed EJRA might be too radical a measure, the aforementioned compromise solution, wherein the judiciary assumes the role of “consultants” rather than “ultimate decision makers” is well worth a trial, for in spite of so much progress over the course of the nation’s short history, many glaring social disparities and injustices still ask questions of its citizens.