judicial review Flashcards
Judicial Review
the Supreme Court has the final authority to review the constitutionality of government acts
The Supreme Court can review
Constitutionality of legislation, the executive branch, and decisions from state and federal courts
Art. III, §2 (Judiciary Original & Appellate Jurisdiction) gives the SC the judicial power to review:
- All cases in law and equity arising under the Constitution
- Laws of the U.S., and treaties made under their authority
- Controversies to which the U.S. shall be a party
Natural law
i. Idea that there are higher levels of law that are supreme
ii. The idea of a hierarchy
iii. Divinely ordained law higher than man-made law, inherent in human nature and discoverable by human reasoning, ex: Ten Commandments; more important than other laws –> hierarchy of laws
Due Process of the Law
i. Idea of being the law of the land
ii. Government has to follow the law of the constitution
iii. The idea is to have a limited government and everyone (including president and government agencies) must abide by the law of the constitution
iv. Originally from section 39 in Magna Carta that said that the King is bound by the law of the land; now, ours is “a government of laws, not of men” –> procedural law, government is limited
Fundamental Law
i. The idea that fundamental law is written down and taken serious.
ii. Government is limited and the written constitution is what limits the government
iii. Basic rules of government, social contract should be written; laws are so important that they should be written; *Constitution = social compact (agreement between citizens and their government)
Marbury v. Madison Holding
The US Supreme Court (and the judiciary) have the final authority in interpreting the US Constitution, therefore, Supreme Court decisions are “the law of the land” and are binding on state officials and legislatures
Marbury v. Madison Rules
-The people established a government of limited power, so Congress must not be the only reviewer of constitutionality of their own laws, otherwise there is the potential for unlimited power.
-If congress has an act that contradicts the constitution or provides more power to courts or anyone else that goes beyond what the constitution allows, then the court has the authority to review the act and deem it unconstitutional.
Cooper v. Aaron Rules
- The Supreme Court is not limited to reviewing state court’s decisions; federal courts also have authority to review constitutionality of state laws and the actions of state officials.
- Court decisions interpreting the constitution becomes supreme law that all states must abide on whether they disagree or not.
- State officials and state legislatures are bound by orders of the United States Supreme Court based on its interpretation of the United States Constitution.
- The US Supreme Court has appellate jurisdiction to review state court decisions.
Cooper v. Aaron holding
The interpretation of the 14th amendment by the Supreme Court in Brown is the supreme law, and article 6 of the constitution (supremacy clause) makes it of binding effect
Martin v. Hunter’s Lesse Rules
- The SC has appellate jurisdiction over state courts when reviewing federal questions
- The clause in controversy was the provision of the treaty that said there would be no more confiscation, the Treaty of 1783. Because a treaty is federal law, there was a federal question, and therefore there were grounds for the court to hear an appeal over this controversy.
Michigan v. Long
- The Supreme Court can review (decide) a case from the State court when the State court referred to the state constitution in its opinion but otherwise relied on federal law.
- SCOTUS respects the independence of state courts so they try to avoid deciding issues of state law. But, when a state court decision seems to rest on federal law or interwoven with federal law and when the adequacy and independence of any state law ground is not clear, the Supreme court will assume the state court relied on the federal law.
- States cannot interpret Const. differently than the Court would. And while states can afford its citizens greater protection than the minimum required by the Constitution under its own laws or constitution, it cannot do so if it would conflict or undermine federal laws or Const.
Main limitations of Judicial Review
- Statutes
- Exceptions Clause
- Advisory Opinions
- Political Questions
§1251 Original Jurisdiction
- The SC shall have original and exclusive jurisdiction of all controversies between two or more states; only time SC is acting like a trial court
- The SC shall have original, but not exclusive, jurisdiction of:
-All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties
-All controversies between the US and a state
-All actions or proceedings by a state against the citizens of another state or against aliens
§1254 courts of appeals; certiorari; certified questions
-Cases in courts of appeals can be reviewed by SCOTUS by the following methods:
-Writ of certiorari by petition from either party
-Certification of questions on law by courts of appeals
-Most appeals are discretionary (when a party in a suit loses and appeals, they write to the SC and request a writ of certiorari); for civil or criminal procedures before or after rendition of judgment
§1257 State Courts; Certiorari
- Final judgments or decrees from the highest court of the state can be reviewed by the SC by writ of certiorari when the validity of a treaty or statute of the US is in question or where the validity of a statute of the state is questionably unconstitutional.
- SC must take these cases; do not vote
- Applies today. This is the equivalent of section 25 of the Judiciary act in Martin v. Hunter
What’s the difference between a review of certiorari and appeal?
-Review of certiorari is discretionary, at least four justices must vote; If 4 judges think a case needs review, cert is granted.
-Appeal review is mandatory, but the court does not have to grant plenary (complete) review in every situation
Ex Parte McCardle
Although the Supreme Court’s appellate jurisdiction is derived from Article III of the Constitution, it is ultimately conferred “with such exceptions and under such regulations as Congress shall make” as outlined in the Exceptions clause of Article III, Section 2. Here, Congress had previously affirmed the Supreme Court’s exercise of appellate jurisdiction over habeas corpus actions in its 1867 Act, but repealed that provision of the act in 1868. By doing so, Congress exercised its constitutional right to limit Supreme Court jurisdiction. Thus, the Supreme Court had no jurisdiction to consider McCardle’s petition for a writ of habeas corpus.
Advisory Opinions
Judicial power is limited to cases & controversies, can not give legal advice. (You cannot just go to court to challenge the constitutionally of an act. You actually have to be harmed by it so it can be a case or controversy.)
Muskrat v. US Holding and Rules
This case is not an actual controversy, the Court’s ruling would be an advisory opinion, and unconstiutional
Political Questions
The court cannot decide political questions, they’re for congress to decide. If it’s a political question, it’s non-justiciable.
6 factors to determine if there is a Political Question
- A constitutional commitment of the issue to a coordinate branch
- A lack of judicially-manageable standards
- An initial policy determination calling for non-judicial discretion
- The impossibility of deciding the case without disrespecting the other branches
- An unusual need to adhere to the political question already made
- The potential for embarrassment from multiple conflicting pronouncements by the different branches
- If any of these 6 factors are met, its a political question
Baker v. Carr Facts
TN legislature failed to reapportion its voting districts since 1901. P claims failure to reapportion is a violation of their equal protection right, D claims its non-justiciable because its a political question
Baker v. Carr Holding
Not a political question b/c had to do w/ the violation of 14th amendment rights, not congress or the president. The issue in this case was whether a state in violation of its own constitutional requirement for reapportionment was a justiciable matter or whether it was a political question that deprived the court the subject matter jurisdiction
