How courts strike down laws and where that power comes from

HostWe see these news stories all the time. A court strikes down a law, and suddenly a rule we have lived with for years just stops working. I have always wondered how a few people in robes can just hit a delete key on something the rest of the government agreed on. How does that power actually work?

GuestIt's a massive amount of power, but the first thing to know is that they don't actually erase the law. They don't go into a room with a red pen and cross it out of the big books. The law stays printed on the page. But the court tells every official and every cop that they can no longer use it. It makes the law go limp. It has no teeth anymore. Think of it like a rule your parents put on the fridge years ago. The paper is still there, but if everyone knows they won't back it up, the rule is basically dead.

HostSo it's a dead law walking. But I was looking through the Constitution, and I couldn't find the part that says the courts are allowed to do this. Did I miss a page?

GuestYou didn't miss a thing. That's the wild part. The power to throw out laws isn't written down in the original rulebook at all. The people who wrote the Constitution back in the seventeen-hundreds didn't clearly say the courts should've the final word. They mostly thought about courts as places to settle small fights between neighbors or deal with crimes. The idea that a judge could look at a law passed by the people we voted for and say "no" was a bit of a shock back then.

HostThat sounds like a bit of a cheat. If it's not in the rules, how did they get away with taking that much power for themselves?

GuestIt happened in a famous case called Marbury versus Madison. This was back in eighteen-oh-three, and the country was very young. There was a messy fight between the group leaving power and the group coming in. The guy leaving, John Adams, tried to pack the courts with his friends at the very last minute. But some of the paperwork didn't get sent out in time. When the new team took over, they said they weren't going to give those men their jobs. One of the guys who got left out sued. He went straight to the Supreme Court and said there was a law that forced the government to give him his job.

HostIt seems like a pretty clear fight. Did he get his job back?

GuestHe didn't, and that's where the head of the court, John Marshall, was very clever. He knew that if he ordered the President to give the man the job, the President would just say no. The court had no army and no way to make people listen. It would've made the court look weak and useless. So instead, Marshall wrote a decision that said the man should've the job, but the law he was using to ask for help actually broke the Constitution. Marshall argued that since the Constitution is the supreme law, any normal law that bumps into it has to lose. He said if two laws clash, someone has to pick a winner. Since the job of a judge is to say what the law is, the court gets to be the one to choose. By losing that one case, he won the right for the court to be the ultimate referee.

HostI see the logic, but it still feels wrong. We vote for the people who make the laws. We don't vote for the judges. How can a few people who aren't elected overrule the rest of us?

GuestThat's the big tension at the heart of the system. On one hand, you want the people to have their way. But on the other hand, the Constitution is the will of the people too. It's just our long-term will. If we all agreed on the big rules a long time ago, we shouldn't let a small group today break those rules just because they feel like it right now. The court acts like a hand-brake. It stops the government from doing things that the big rulebook says are off-limits. They're supposed to protect the rules we all agreed to stay under, even when those rules aren't popular.

HostOkay, so they're the hand-brake. But do they just sit around looking for laws to break? Can they just pull a law off a shelf and say this is bad, get rid of it?

GuestThey actually cannot. This is one of the main limits on their power. They have to wait for a real fight to come to them. Someone has to get hurt by the law, or be about to get hurt, and then they have to sue. If nobody brings a case, a bad law could stay on the books for a hundred years. They're a passive power. They can't go hunting for things to fix. They have to wait in their building for a case to walk through the door. And even then, they're usually careful. They would rather cut out one small, bad part of a law than kill the whole thing. It's more like surgery than a wrecking ball.

HostThen what happens? If the court says no, is that the end of the road?

GuestThere are a few ways back. Usually, the government will just write a new law that does the same thing but in a way that doesn't break the big rules. It's like a game of cat and mouse. Or, in very rare cases, the people can change the big rulebook itself. If you change the Constitution, the court has to follow the new version. But that's incredibly hard to do. It has only happened a few dozen times in our whole history.

GuestThe law doesn't vanish from the books, but it becomes a ghost that no cop can use and no judge will hear.

HostThe rulebook on the fridge stays the same, but the way we walk through the world changes because a referee finally blew the whistle.