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The Supreme Court engages in judicial interpretation in the course of exercising its power of judicial review—that is, its power to strike down acts of government that violate the Constitution, the supreme law of the land. To decide whether an act violates the Constitution, the Court must, of course, interpret relevant constitutional language. For example, weighing the constitutionality of a law providing for the death penalty in serious criminal cases requires the Court to determine what is meant by the Eighth Amendment’s ban on “cruel and unusual” punishment. Even if the Court determines that the death penalty itself is not cruel and unusual, other questions may arise: Is it cruel and unusual to execute children or the mentally disabled? Answers to such questions may change over time as the national consensus evolves and membership of the Court changes, even if the Constitution itself is not formally amended.

Judicial review is an important way of enforcing the rule of law—the idea that government is limited in its actions by the nation’s constitution. Despite this vital function, judicial review was not a power specifically granted by the Constitution. Rather, it was established by the Supreme Court in the 1803 case Marbury v. Madison⁴⁹ (see Chapter 14).

Ambiguous constitutional language complicates the task of judicial interpretation. For example, the Fourth Amendment bans “unreasonable searches and seizures,” but what exactly does that mean? Judges disagree not only about what the word unreasonable means but also about what constitutes a search (for instance, is a wiretap a search?). Similar difficulties extend to many of the most important clauses of the Constitution.

Even seemingly straightforward clauses, such as the First Amendment command that Congress shall make no law abridging freedom of speech, can lead to widely divergent interpretations. What, exactly, does constitutionally protected speech entail? Is every verbal utterance protected (including libel, obscenity, false advertising, and verbal threats to assassinate the president or overthrow the government)? Is speech even limited to verbal utterances, or does the First Amendment also protect symbolic speech, such as burning an American flag? And if it protects symbolic speech, what does that entail? (For more on interpretations of protected speech, see Chapter 4.)

Some argue that this ability of the Court to adjust its interpretation without the long and difficult process of constitutional amendment is a good thing. The ambiguity—and therefore the flexibility—of the Constitution allows phrases such as cruel and unusual punishment and unreasonable searches and seizures to evolve over time to comport with changing societal values and technological advances. This flexibility, they say, has helped the Constitution to endure. Others, however, fear that judges will exploit that flexibility and use it to “legislate from the bench.” Why, they ask, should unelected judges be allowed to pick which interpretation of ambiguous clauses is correct? Won’t their choices be based on their personal values and ideological predilections? Shouldn’t such ambiguities be resolved by legislators who are accountable to voters? Those who favor judicial interpretation say no because they fear the “tyranny of the majority” and believe judges will be more dispassionate guardians of constitutional principle and minority rights precisely because they are unelected (and thus independent). This debate will be discussed in more detail in Chapter 14.