US Supreme Court: Agent of the People Justifies Judicial Review

• Federal courts, including the Supreme Court, are properly conceptualized as faithful agents of "We the People," not of Congress.
• This distinction serves as a fundamental justification for the judiciary's power of judicial review.
• The concept of courts as agents of the people is a prominent feature of modern textualism.
• Then-Judge Amy Coney Barrett and Justice Antonin Scalia both articulated this judicial philosophy.
• Justice Neil Gorsuch, joined by Justice Samuel Alito, recently defended the major questions doctrine, a canon of interpretation.

This crucial distinction provides the underlying justification for the judiciary's power of judicial review, a mechanism through which courts assess the constitutionality of legislative and executive actions.

The third branch of government, comprising the Supreme Court and other federal courts, is fundamentally understood as a faithful agent of "We the People." This conceptualization stands in direct contrast to the idea that these judicial bodies serve primarily as agents of Congress. This crucial distinction provides the underlying justification for the judiciary's power of judicial review, a mechanism through which courts assess the constitutionality of legislative and executive actions. While judicial review has been an acknowledged and integral component of the Supreme Court's authority for over two centuries, its legitimacy and application have recently become subjects of renewed debate and scrutiny. The judiciary's role as an agent of the people underscores its responsibility to uphold the Constitution as the supreme law, reflecting the will of the populace rather than merely enforcing the directives of a co-equal branch of government. This separation of powers judicial role is central to maintaining governmental checks and balances.

The notion of federal courts acting as faithful agents of "We the People" is a prominent feature within the modern textualism Supreme Court approach, though it is not exclusively limited to this interpretive school. In 2017, then-Judge Amy Coney Barrett articulated this judicial philosophy, explaining that the textualist commitment to interpreting laws from the perspective of an ordinary reader can be understood through this lens of faithful agency. She posited that courts, under this framework, are seen as agents of the people rather than agents of Congress. To support her view, Justice Amy Coney Barrett judicial philosophy drew upon the insights of Justice Antonin Scalia, who similarly characterized courts as agents of the people. Scalia notably did not believe that a commitment to legislative supremacy inherently cast courts in the role of Congress's agents, reinforcing the idea of an independent judiciary accountable to the populace.

This conceptualization of the Supreme Court as agent of the people informs the application of various interpretive methodologies. For instance, Justice Neil Gorsuch recently defended the major questions doctrine, a significant canon of interpretation, in an opinion that was joined by Justice Samuel Alito. This defense highlights how specific legal doctrines are employed within the broader framework of judicial fidelity to the public. Such interpretive tools are crucial for federal courts faithful agents to ensure that legislative enactments align with constitutional principles and the presumed intent of the people, rather than merely deferring to congressional authority. The judicial review justification, therefore, is not just about checking power, but about ensuring that power is exercised in a manner consistent with the foundational principles established by the people, thereby upholding the separation of powers judicial role. This approach is vital for anticipating judicial outcomes and framing legal arguments effectively.

Lawyers should understand the Supreme Court's conceptualization of itself as an agent of the people, and its reliance on interpretive methodologies like modern textualism and the major questions doctrine, to better anticipate judicial outcomes and frame legal arguments, particularly when challenging legislative or agency actions.

Source: Information derived from a column on the judiciary's role.