Rise of Judicial Power: Constitution and Marbury v Madison

The Constitution of the United States was ratified in 1787 and it established the powers of the federal government. Its intended purpose was to protect individual rights and liberties. It constructed the three branches of government that we know today: Executive, legislative and judicial. These branches created a separation of powers, in addition to check and balances. Originally, the judicial branch did not have much power when the constitution was written. It was not until the case of Marbury v Madison in 1803 that it actually established the judicial review. The judicial review is what gave the federal courts a great deal of power to void acts of Congress that they deemed violates the Constitution. After this case, the Supreme Court Justices

were able to use their interpretations on what the words and meaning of the document is. This is what gives a lot of power to the Justices because they can change laws and the way society operates. Not only does this affect the United States, but it also has impact on the rest of the world policies. This creation of the judicial review is arguably what makes the judicial branch the most powerful out of all three. It is apparent the framers wrote a strong document because it has lasted over 200 years with only 27 amendments. The original Framers did not specifically write how the Constitution was to be interpreted, or how decisions were to be decided in the years to come, which has led to Supreme Court Justices over the years battling on what the intended meaning is of the document is.

Every Justice has their own views and ideas on how cases are to be decided. The best approach to interpreting the Constitution is adopting the pragmatist approach, which is why it has lasted so many years. Opposite to originalism, where the Justices interpret the document by using the framers intended meaning at the time it was written, pragmatism follows the assumption that the Constitution is a living document; this means the interpretation of the document adapts to the growing and ever changing society. With this ideology, Justices may make decisions that do not follow the rulings on precedent cases; they also look at how their decisions will impact the current society, along with how the decision will affect future cases. Throughout Supreme Court history there have been a number of Justices that have used the pragmatic approach, including Justices Robert Jackson, Stephen Breyer, and Oliver

Holmes. This essay will show that there are a variety of Supreme Court cases where various Justices have used the pragmatic ideology in their decisions, while there have also been a number of decisions where the majority opinion went in the opposite direction of the pragmatist approach.
It must be noted that some of the most controversial decisions on cases in the United States have followed a pragmatic approach reach the decisions. For example, the outcome of Brown v Board of Education concluded that the “separate but equal doctrine” in the school system -first established by Plessy v Ferguson- violated the equal protection clause of the 14th amendment.
“In approaching this problem, we cannot turn the clock back to 1868, when the [14th] Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”

As one can clearly see from his excerpt of the ruling, Chief Justice Warren looked at the present times to see how the impact of the “separate but equal” doctrine had on society. He revealed how important quality education is for the success of the nation as a whole. He did not take into consideration what the original framers would have said, and the Supreme Court decided on what was best for the nation at the current/ near future time. The Supreme Court Justices knew that a number of southern states disagreed with this landmark ruling and they understood it would take time to be completely implanted in all schools. It was a big ruling that catapulted the US into the civil rights era. Constitutional interpretations such as originalism, would completely disagree with this ruling. Without this pragmatic approach on where society was heading, our current system on equality would look quite different today.
One case that used a pragmatist approach is Wickard v Fillburn. Roscoe Fillburn owned a wheat farm where he planted on more acres than the 1938 Agricultural Adjustment Act allowed him to legally plant. He planted enough not only to sell but to also provide for his family. After being fined or over production of wheat, Fillburn argued that Congress had violated the commerce clause since they were trying to regulate the planting if an on-farm consumption. Justice Jackson declares that the act is valid and that:
“Penalties do not depend upon whether any part of the wheat, either within or without the quota, is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess upon payment of the penalty, or except it is stored as required by the Act or delivered to the Secretary of Agriculture” (Epstein & Walker 2014; 441).

Even though the production of wheat cannot be regulated by commerce, it does have an indirect effect on it (commerce). If Congress did not regulate the production of wheat, than every farmer would grow as much as they could to make more money, but with this, the value of wheat would decrease, ultimately affecting the interstate commerce. Anything that affects the interstate commerce has a big impact on the nation as a whole. This thinking process by Justice Jackson is known as the aggregate effect test. Upon deciding this case, Jackson used the pragmatist approach to look at the possible effects and outcomes that this court decision may have on the future of farming, as well as the interstate commerce/economy. This ruling makes the most sense because it is what will help protect the nation as a whole from a potential economic downfall. Having a surplus of wheat would mean farmers would not be able to sell it all and end up losing money due to the high supply and low demand.
The majority opinion of Tarisoff v Regents of the University of California is a good case to examine because the majority decision follows a pragmatic approach. In this case, the Supreme Court ruled that mental health professionals owed a duty of care not only to the patient, but also to any known potential victims that the patient may target. Prior to this case, mental health care professionals only had a duty of care to the patients. This case arose when a student (Tatitana) was killed by her schoolmate, Poddar. Poddar had been seeing a therapist who he explicitly, and in detail, told how he was going to kill this girl. Soon after, Poddar ended up killing her and Tatiana’s family argued, “the defendants had a duty to use reasonable care to protect Tatiana”. The Supreme Court Justices agreed stating a “defendant owes a duty of care to all persons who are foreseeable endangered by his conduct, with respect to all risk which make the conduct unreasonably dangerous” (63- Chapter 3 common law). In this decision, the court did not indicate any precedent cases. These Justices decided what was right by using common sense and ruling what was in the best interest of the common people. Even though this case touches on a sticky situation of patient-doctor confidentiality, the Court concludes that public safety is more important. If this case were not decided with a pragmatic approach, there would certainly be no duty of care ruling for doctors to help/inform anyone aside from their patients.
There are a number of Supreme Court decisions where the courts ruled on a case where they did not think about what the future implications and policies would be associated with it.

This type of interpretation to cases can potentially be detrimental to whole of society. In some cases, the pragmatic dissenting opinion would be the most logical ruling because it would be the least harmful to the greatest number of people, since it would look at all of the potential outcomes when deciding on a case. One case in particular that corresponds with this is Lochner v New York. This case was ruling on if the New York Bake Shop Act- setting a maximum work hour limit for bakers- was in violation of liberty to contract. The majority rule of the Supreme Court ruled that this act was in fact unconstitutional because it violated the 14th amendments due process clause by interfering with right for an employer and employee -who are on equal footing- to negotiate and create their own contracts. The Court believed it is given liberty for an employee and employer to do this by themselves without interference. It was also concluded that the job of a baker had no heath risks or dangers involved, which is not true. This ruling is not following the fundamental beliefs of the Constitution because it is disregarding the protection of people in the bakery work force. The justices with the majority opinion overlook the problem that without any guidelines set in place, employers can take advantage of

employees with the liberty to contract, by telling them they have to work longer and more hours in order to keep their jobs, impacting their overall health. Before deciding, a pragmatic approach would involve looking at these problems and deciding an alternate ruling that would not involves potentially harming anyone. They would agree with the development of some type of act that puts restrictions on labor work laws because it would be in the best interest for the majority of the people. In Justice Oliver Wendell Holmes dissent he exercises a pragmatic approach by shedding light on some of these issues. He opened up with stating that in the decision for this case, the majority of justices “decided upon an economic theory which a large part of the country does not entertain (Epstein & Walker 2014; 628)”. Holmes believes that the justices were influenced by their likeness towards laissez faire economics. This type of belief does not focus on protecting people. In addition to this statement, he argued that the “14th amendment does not enact Mr. Herbert Spencer’s social statics”. This basically means that the 14th amendment does not include