Normsbarry v. Madison: Why Congress Must Codify Judicial Review Before It's Too Late

For nearly 250 years, American democracy has relied on what basically amounts to a gentleman’s agreement - a tradition, not a law. That tradition is called judicial review, the idea that the courts get the final say on whether a law is constitutional. It’s not written in the Constitution. 

Yes, I know - judicial review has legal precedent. But precedent doesn’t mean much unless people accept that it does. That’s because it’s normative - a widely accepted practice, but not a codified legal requirement.

If precedent actually mattered - if it wasn’t just a norm - Roe v. Wade would still be the law of the land. If precedent were truly binding, no court case would ever be overturned. The reason they can be is simple: what is considered "normal" changes over time.

On any given day, at any given time, a group of nine unelected people can decide what is or isn’t worthy of being upheld as precedent.

It’s all made up.

And while I agree that the courts would never willingly give up their power, we have to ask: if precedent is just a tradition and not codified law, why shouldn’t the executive branch decide precedent is meaningless?

Why do the courts get to be arbitrary, but the executive branch doesn’t? Is there a clear, cut-and-dry rule in the Constitution about who gets to wield arbitrary power?

No one voted on it. The Supreme Court gave itself this power in 1803 with Marbury v. Madison, and ever since, presidents and Congress have played along.

Until now.

Because here’s the truth: Judicial review is just a norm. A strong one, sure. A long-lasting one, yes. But at the end of the day, it’s still just a tradition.

Norms Can Be Broken. Laws Have Consequences.

That’s the difference. If a president ignores a norm, it sparks outrage, media debates, maybe a few stern letters from Congress - but no one stops them. If a president breaks the law, though, that’s a crisis everyone understands.

Right now, there is no actual law that forces a president to follow a Supreme Court ruling. No statute in the books says, “If the Supreme Court strikes something down, the president must obey.” We’ve just assumed it would always be that way.

And that’s a problem. Because Trump thrives in gray areas.

• If a Supreme Court ruling goes against him, what stops him from saying, “Who cares? They’re not in the Constitution. Let them enforce it.”

• If Congress does nothing, what happens next?

• If the courts lose their power, who decides what the law is? The president? His hand-picked DOJ? The military?

This isn’t abstract anymore. It’s real.

Congress Must Codify Judicial Review Now

There’s only one way to fix this: Congress must pass a law that explicitly states judicial review is binding, and that the executive branch is legally required to follow Supreme Court rulings.

Is it redundant? Maybe. Judicial review has held up for two centuries. But history shows that when democracy starts to fail, norms collapse first - then laws. And when a president ignores a Supreme Court ruling and gets away with it, it’s not just a crisis.

It’s the end of the rule of law.

If We Don’t Codify It, We’re Daring Trump to Break It

Let’s be real: Trump’s allies in Congress won’t pass this law. They want him unchecked. They want the courts to be meaningless when they stand in his way. But forcing this debate puts them on record - they either stand for the rule of law or they don’t.

And if they refuse? That tells us everything.

Because Trump isn’t the last threat to democracy. If judicial review collapses, the next authoritarian will be even smarter. (Just imagine the brainiac, Neo-Nazi ticket of JD Vance and Josh Hawley). Even more prepared. And next time, we might not even have the chance to fight back.

Congress must act now. Before it’s too late.

We're not just in a postmodern era, we're in the post-normative era. For better or worse, tradition is dead.

Lord knows we all hope that they will just back down and not have the balls to do what they seem to be about to do. 

But do you think that's going to happen? Let me know in the comments below.