When the Supreme Court was holding oral arguments last December in the case that brought about the end of Roe v. Wade, Justice Sonia Sotomayor addressed the familiar argument that the Constitution doesn't mention a right to privacy. That fact was a central argument in the court's majority opinion issued last month, per NPR. But there's a lot that's not mentioned in the Constitution, the justice said. In fact, "there is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means," Sotomayor pointed out. "And yet, she added, "what the Court did was reason from the structure of the Constitution that that’s what was intended."
The justice might have been mostly intending to say that rights, including the one to privacy, can exist without being clearly stated in the Constitution, but Joshua Zeitz writes in an opinion piece in Politico that the power of judicial review is in the same boat. "Both exist by strong implication," he says. Mostly, the court claimed that right for itself. Some framers did expect the Supreme Court, as well as lower federal courts, to exercise a veto on constitutional grounds over congressional and state acts, Zeitz writes. "But they did not intend this power to be unchecked or unlimited," he says.
The Constitution is all about checks and balances, and the other branches could move to limit the judiciary just as the courts limit the activities of the others. The Constitution didn't even design the court system, it left it to the other branches. So they can take steps to restrict the court on certain issues, Zeitz points out. Congress could pass a law denying the court authority over a new voting rights act, for example. "Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary," Zeitz writes. You can read the full piece here. (More US Supreme Court stories.)
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