Document Type

Book Review

Publication Date

1980

Abstract

Imagine a cold morning early in February. Slowly sipping coffee in an effort to awaken fully, you are reading through the Supreme Court advance sheets. You come across the following brief opinion:

PER CURIAM. Fisher v. Rye Co., No. 81-1, and First Savings Bank v. Smith, No. 81-2. These petitions for certiorari have been consolidated for disposition in a single opin-ion. No. 81-1 challenges an Executive Order that, in an effort to combat gender-based discrimination, requires government contractors to adopt affirmative action programs. No argument is made that the Executive Order is authorized by statute. Concluding that the President's order could not be embraced by any inherent residuum of "emergency" presidential authority, cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), the courts below held that the Executive Order was an impermissible assertion of legislative power. In No. 81-2, petitioner, a state-chartered institution, asserts the invalidity of a federal statute prohibiting discrimination on the basis of marital status in the issuance of mortgages and other loans. Relying upon our decision in Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964), and, more fundamentally, upon the principles set forth in M'Culloch v. Maryland, 17 U. S. (4 Wheat.) 316 (1819), the courts below sustained the statute as a rational exercise of the power to regulate interstate commerce.

The petitions are granted, the judgments vacated, and the cases remanded with directions to dismiss the complaints for want of jurisdiction. We hold that these separation of powers and federalism claims present non-justiciable political questions.

The central function of the courts established by Article III, and particularly of this Court, is to vindicate individual liberties. History teaches that these liberties are not adequately secured by our majoritarian political process. But these liberties are not sharply implicated by either federalism or separation of powers challenges, since it is conceded that some governmental unit could impose the challenged restriction. Essentially, therefore, the challenges in both cases are based on conflicting assertions of political power between governmental actors. The constitutional structure thus ordains that such claims be adjusted in the political process, which, we are satisfied, adequately protects both the interests of the States and of Congress. Moreover, history teaches that judicial intervention in these areas necessarily weakens this Court's ability to discharge its principal role of vindicating individual liberties. See generally, J. Choper, Judicial Review and the National Political Process (198o).

M'Culloch v. Maryland, supra, and its progeny are no longer authoritative insofar as they assume the justiciability of federalism issues. Our prior cases dealing with presidential claims of constitutional authority are similarly disapproved to the extent that they depend on the justiciability of such claims. Of course, the courts remain free to adjudicate cases in which the sole issue is one of statutory construction: where the President's sole reliance is upon statutory authority or where the President is alleged to have acted in a manner prohibited by statute and he concedes that such a prohibition would be valid.

By the time you had read this imaginary opinion, your need for coffee would, in all probability, have vanished. The opinion's startling and intriguing thesis is the core of Professor Choper's complex and fascinating, but ultimately frustrating, Judicial Review and the National Political Process.

Comments

Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court by Jesse H. Choper, Chicago: The University of Chicago Press, 1980, pp. xviii, 494, $28.50.

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