Judicial Review Pros And Cons
MIDTERM EXAMINATION 1) Judicial Review It is often agreed that the chief "weapon" of a Court is the power of judicial review. In the United States Constitution there is no specific mention of such a power yet few would seriously contend that no such power exists. What are the sources of the U.S. Court's power of judicial review? The principle of judicial review is rooted in the supremacy of the U.S. Constitution over all other laws in the United States. If the Constitution says something like “Congress shall make no law abridging the freedom of speech”, and Congress passes a law that does, the Court exercising the power of judicial review determines that the Congressional act is an unconstitutional violation and must be voided.
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How was judicial review explained and justified by those that devised the American Republic in the 1780's?
Judicial review has several meanings. It may refer to review by judges of governmental officials to determine whether the governmental officers are acting within their official capacity of exceeding their powers. Secondly there is a judicial review for the federal systems for policing the powers that have been distributed between the states and the central government. Third, there is the judicial review that may mean the power of the courts to invalidate or refuse to enforce statues, treaties, or executive orders that may violate or are unauthorized by the constitutional law. There is no explicit grant of this power to the Courts in the Constitution, however it is implied in the document but nowhere are the Courts given the power to invalidate a law passed by a legislature. The power in reality is
counter-majoritarian.
c) How did the U.S. Supreme Court legitimate the use of judicial review? ie. how did its use gain acceptance of the people and the other branches of government? The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison in 1803. Marbury is significant less for the issue that it settled (between Marbury and Madison) than for the fact that Chief Justice John Marshall used Marbury to provide a rationale for judicial review then exercised it striking down provisions in the Judiciary Act of 1789 because in the Court’s opinion, it contradicted Article III of the Constitution. Marbury stands as the first precedent for the power of judicial review. Few critics today argue against the Court’s power that is deeply ingrained in the American legal system and accepted by the majority of the people and other branches of our government.
d) Many people look to the Court's exercise of judicial review to protect minority rights. Explain. The Constitution is not self-enforcing and a political party in power cannot be trusted to respect the rights that the Constitution affirms for all, majority and minority alike. The Court uses judicial review to make sure that all people are treated equally under the law. A great example is in the decision that reversed state laws that segregated white and black children in public schools in Brown v. Board of Education. Another example would be in the Roe v. Wade case where the court struck down state laws that criminalized abortion. These cases reflected a majority position that repressed members of a class who were in the minority. The Constitution protects all citizens’ speech, religious freedom and other fundamental rights. As shocking as this may seem, majorities have oppressed minorities and denied them their fundamental rights. The Court has intrepid the Constitution and exerted the power of judicial review to protect the rights of those in the minority. The Courts truly are the protectors of minority rights and historically citizens seek federal remedies under the U.S. Constitution and its Bill of Rights as their best hope for relief. e) Scholars and politicians still debate the limits of judicial review. What are the competing viewpoints? Although there is no explicit grant of judicial review, scholars and politicians still debate its limits because the fact is, the US Supreme Court is now the definitive arbitrator of whether a state or federal law violates the Constitution. This is because many people view the concept that appointed judges can overrule the other two branches of government, but not vice versa, seems absurd, due to the politics often associated with court decisions. Whether you are for something or against something, one of the first things that the news will focus on is the political party that appointed the majority of the judges. This results with the strengthening of the argument that judges are in effect super legislators who can strike down laws and even create new laws, without ever having electoral accountability. Because of this, if the majority of the court is conservative, those type of cases will be championed before the court. Consequently, if the majority of the court is liberal, cases more in line with public policy such as issues of welfare, prisoners’ rights, and criminal procedure will be before the court.
2) Judicial Federalism
Political scientists study and dissect the unique divisions of law-making authority between the national government as a centralized power source, and the fifty state governments as local law makers, but we also care about and study national vs. state power-sharing in judicial decision-making as well. Just as the U.S. Constitution delegates certain powers to the Congress, it likewise assigns certain jurisdiction to the national courts.
a) What jurisdiction does the U.S. Constitution assign/delegate to the U.S. Supreme Court?... To the lower ("inferior") U.S. Courts? The US Constitution, through Article III, establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress. “The judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” The judicial power is extended to all cases under the Constitution and Laws of the United States and in all cases affecting ambassadors, other public Ministers and Consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction is where two or more states will go to settle controversies and cases to which the United States is a party. This means that the express implication of specifying the powers of the national judiciary was to actually limit its jurisdiction to those types of cases, leaving the rest to state courts. The lower (“inferior”) US Courts received their authority from Congress within Article I, section 8 of the Constitution, with the power to “constitute Tribunals inferior to the Supreme Court.”
b) How does a case that commences as a state court case come to the U.S. Supreme Court? In order for a case that commences as a state court case to reach the US Supreme Court, it must involve an issue of federal law or otherwise fall within the jurisdiction of federal courts. If the case only involves matters (generally speaking) of an issue of state law or parties within a state, then it will most likely be settled within the state court system. If the case is one that may be heard by the US Supreme Court then you must file a lawsuit with your state or federal court. The trial judge will then hear the evidence and legal arguments from each side before making a decision. If the judge decides the case against you, you would then appeal to the next higher court. When you have appealed as far as possible, you can then consider appealing to the US Supreme Court. To appeal to the US Supreme Court you would prepare a "petition for certiorari." This is an important document that the Court will read and decide whether or not to hear a case and includes an account of the case, facts, and the legal issues. Upon review, the justices then make a final decision. If they decide to hear a case, they will issue a "writ of certiorari."
Chances of having a case get before the US Supreme Court are very slim. They hear about 80 cases a year, but receive nearly 10,000 petitions for certiorari.
c) What happens when both state law and national law (including Constitutional provisions) apply and are part of a state court's determination? Is it reviewable by the U.S. Supreme Court? When there is a conflict between state and federal law, and both apply, it is reviewable by the US Supreme Court. An example of this is the case of Texas v. Johnson, where a citizen of Texas was convicted of violating a Texas state law banning burning of the US flag. After his conviction of burning the flag, Johnson appealed his case to the US Supreme Court on the grounds that his right to free speech, a right guaranteed by the constitution was being violated by the Texas law. The Supreme Court ruled in Johnson’s favor and declared the Texas law in violation of the First Amendment striking down that law. d) What criteria does the U.S. Supreme Court use to determine whether to review a state court decision and how has that changed over time? The US Supreme Court has Constitutional Jurisdiction of the National Courts but Federal courts and state courts practice a kind of mutual respect for each other’s interpretation of law. This mutual respect is referred to as “Comity.” Federal courts practice the principle of “adequate and independent state grounds” whereas the Federal Court could look at a case and determine that even if there is an issue which is covered in the U.S. Constitution, the case may best be decided based upon the state’s own laws and its state constitution. The rational is that there are in fact “adequate and independent state grounds” and the Federal Court need not involve itself.
How was judicial review explained and justified by those that devised the American Republic in the 1780's?
Judicial review has several meanings. It may refer to review by judges of governmental officials to determine whether the governmental officers are acting within their official capacity of exceeding their powers. Secondly there is a judicial review for the federal systems for policing the powers that have been distributed between the states and the central government. Third, there is the judicial review that may mean the power of the courts to invalidate or refuse to enforce statues, treaties, or executive orders that may violate or are unauthorized by the constitutional law. There is no explicit grant of this power to the Courts in the Constitution, however it is implied in the document but nowhere are the Courts given the power to invalidate a law passed by a legislature. The power in reality is
counter-majoritarian.
c) How did the U.S. Supreme Court legitimate the use of judicial review? ie. how did its use gain acceptance of the people and the other branches of government? The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison in 1803. Marbury is significant less for the issue that it settled (between Marbury and Madison) than for the fact that Chief Justice John Marshall used Marbury to provide a rationale for judicial review then exercised it striking down provisions in the Judiciary Act of 1789 because in the Court’s opinion, it contradicted Article III of the Constitution. Marbury stands as the first precedent for the power of judicial review. Few critics today argue against the Court’s power that is deeply ingrained in the American legal system and accepted by the majority of the people and other branches of our government.
d) Many people look to the Court's exercise of judicial review to protect minority rights. Explain. The Constitution is not self-enforcing and a political party in power cannot be trusted to respect the rights that the Constitution affirms for all, majority and minority alike. The Court uses judicial review to make sure that all people are treated equally under the law. A great example is in the decision that reversed state laws that segregated white and black children in public schools in Brown v. Board of Education. Another example would be in the Roe v. Wade case where the court struck down state laws that criminalized abortion. These cases reflected a majority position that repressed members of a class who were in the minority. The Constitution protects all citizens’ speech, religious freedom and other fundamental rights. As shocking as this may seem, majorities have oppressed minorities and denied them their fundamental rights. The Court has intrepid the Constitution and exerted the power of judicial review to protect the rights of those in the minority. The Courts truly are the protectors of minority rights and historically citizens seek federal remedies under the U.S. Constitution and its Bill of Rights as their best hope for relief. e) Scholars and politicians still debate the limits of judicial review. What are the competing viewpoints? Although there is no explicit grant of judicial review, scholars and politicians still debate its limits because the fact is, the US Supreme Court is now the definitive arbitrator of whether a state or federal law violates the Constitution. This is because many people view the concept that appointed judges can overrule the other two branches of government, but not vice versa, seems absurd, due to the politics often associated with court decisions. Whether you are for something or against something, one of the first things that the news will focus on is the political party that appointed the majority of the judges. This results with the strengthening of the argument that judges are in effect super legislators who can strike down laws and even create new laws, without ever having electoral accountability. Because of this, if the majority of the court is conservative, those type of cases will be championed before the court. Consequently, if the majority of the court is liberal, cases more in line with public policy such as issues of welfare, prisoners’ rights, and criminal procedure will be before the court.
2) Judicial Federalism
Political scientists study and dissect the unique divisions of law-making authority between the national government as a centralized power source, and the fifty state governments as local law makers, but we also care about and study national vs. state power-sharing in judicial decision-making as well. Just as the U.S. Constitution delegates certain powers to the Congress, it likewise assigns certain jurisdiction to the national courts.
a) What jurisdiction does the U.S. Constitution assign/delegate to the U.S. Supreme Court?... To the lower ("inferior") U.S. Courts? The US Constitution, through Article III, establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress. “The judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” The judicial power is extended to all cases under the Constitution and Laws of the United States and in all cases affecting ambassadors, other public Ministers and Consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction is where two or more states will go to settle controversies and cases to which the United States is a party. This means that the express implication of specifying the powers of the national judiciary was to actually limit its jurisdiction to those types of cases, leaving the rest to state courts. The lower (“inferior”) US Courts received their authority from Congress within Article I, section 8 of the Constitution, with the power to “constitute Tribunals inferior to the Supreme Court.”
b) How does a case that commences as a state court case come to the U.S. Supreme Court? In order for a case that commences as a state court case to reach the US Supreme Court, it must involve an issue of federal law or otherwise fall within the jurisdiction of federal courts. If the case only involves matters (generally speaking) of an issue of state law or parties within a state, then it will most likely be settled within the state court system. If the case is one that may be heard by the US Supreme Court then you must file a lawsuit with your state or federal court. The trial judge will then hear the evidence and legal arguments from each side before making a decision. If the judge decides the case against you, you would then appeal to the next higher court. When you have appealed as far as possible, you can then consider appealing to the US Supreme Court. To appeal to the US Supreme Court you would prepare a "petition for certiorari." This is an important document that the Court will read and decide whether or not to hear a case and includes an account of the case, facts, and the legal issues. Upon review, the justices then make a final decision. If they decide to hear a case, they will issue a "writ of certiorari."
Chances of having a case get before the US Supreme Court are very slim. They hear about 80 cases a year, but receive nearly 10,000 petitions for certiorari.
c) What happens when both state law and national law (including Constitutional provisions) apply and are part of a state court's determination? Is it reviewable by the U.S. Supreme Court? When there is a conflict between state and federal law, and both apply, it is reviewable by the US Supreme Court. An example of this is the case of Texas v. Johnson, where a citizen of Texas was convicted of violating a Texas state law banning burning of the US flag. After his conviction of burning the flag, Johnson appealed his case to the US Supreme Court on the grounds that his right to free speech, a right guaranteed by the constitution was being violated by the Texas law. The Supreme Court ruled in Johnson’s favor and declared the Texas law in violation of the First Amendment striking down that law. d) What criteria does the U.S. Supreme Court use to determine whether to review a state court decision and how has that changed over time? The US Supreme Court has Constitutional Jurisdiction of the National Courts but Federal courts and state courts practice a kind of mutual respect for each other’s interpretation of law. This mutual respect is referred to as “Comity.” Federal courts practice the principle of “adequate and independent state grounds” whereas the Federal Court could look at a case and determine that even if there is an issue which is covered in the U.S. Constitution, the case may best be decided based upon the state’s own laws and its state constitution. The rational is that there are in fact “adequate and independent state grounds” and the Federal Court need not involve itself.