Judicial Review Flashcards
What is Judicial Review?
Power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.
Where does the power of Judicial Review come from?
The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the structure, provisions, and history of the Constitution.
Writs of Assistance Case (Feb. 1761)
Writs of Assistance were arbitrary search warrants to enforce Navigation Acts and stop smuggling. James Otis was the Boston AG prosecuting smugglers but then decided it was unconstitutional and began defending the smugglers.
Otis argued: “A man’s house is his castle;…” The writ if it were legal, would “totally annihilate this privilege.”
Issue: Was writ unconstitutional and void?
Holding: No, writs renewed but it was politically important for the revolution. John Adams said this is what really moved him to protect American rights.
Results: state & federal protections – 4th Amendment
Forming the Federal Judiciary
Article 3 of Constitution:
Created true judicial independence (new development)
Established supreme court and option for inferior courts
Gave life tenure of judges with good behavior
Appointed by President, confirmed by Senate
Lord Cooke said they have all the training and will make precedents.
Article 6 of Constitution:
US Constitution is supreme law of land
Judges in all the states are bound by it
Federal was called Confederal in founders’ day
All judges & officers must take oath to support it.
Federalists & The Judiciary
Federalist# 78
o Judiciary will be the least dangerous to the political rights of the Constitution.
o When the Warren court made it’s decision, it was up to the Federal government to act on it. National Guard sent by pres.
Judicial Review power
• Independence of courts essential
• No ex-post facto laws preserved by justices
• Their duty is declare bad laws contrary to constitution void
• Without them having these powers, rights would “amount to nothing”
Limits on Judicial Review
• Justices do not have arbitrary discretion because they are bound by “strict rules and precedents”
• They have “duty in every particular case”
• Must consider precedents and constitutional principles
• They must have integrity and requisite knowledge
• Temporary duration would discourage the best characters
Antifederalists & The Judiciary
Brutus# 11
- Life Tenure & Impeachment
- Judges will make their own interpretation
- SOP of powers isolates the Supreme Court to do what they want.
- No automatic Supreme Court hearing on appeals
- With independence comes power
Brutus #12
- SCRT will define the Constitution’s Spirit & Intent
- No real federalism – Unitary Government
- Courts will expound powers of government
- Latitude over every department
- Private justice
- Internal & local affairs
- Federalism will go away: example is new healthcare law
- This has happened with the Marshall, Warren courts
Marbury vs. Madison (1803) – Applied Judicial Review to SCRT
Case Facts
Facts
• Turbulent political times
• Six Circuit Courts
• 5 SCRT Justices
• Diversity Jurisdiction – Law & Equity
• Federalists strengthen court
• Threat to Federal Common Law?
• Means the Federal courts can all kinds of cases that states would normally handle
• US vs. Hudson & Goodwin, 1812-Ruled No Federal Common Law
• Organic Act of 1801: 42 new JOPs, Jefferson lower to 30. Marbury was one of those JOP.
• Judiciary Act of 1801: lowered to SCRT to 5 justices so Jefferson can’t appoint another one.
• Judiciary Act of 1802: Repealed new circuit courts & 16 circuit judges who were already, kept 6 but brought back circuit riding, why? – To keep judges in touch with the people.
• 1 SCRT justice & DJ per circuit court
• Divided opinion could be repealed by SCRT
• Amendatory Act 1802 changed session from semi-annual to annually – a 4 week term and put SCRT justices on circuit twice a year. SCRT can only meet once.
• Stuart vs. Laird (1803), upheld 1802 Judiciary Act, Marshall court ignore the life tenure conflict.
• William Marbury & 3 JOPs file suit: TJ had ordered Madison to withhold their commissions though signed and sealed- TJ argued that they weren’t valid cause not delivered “Not Consummated” and SOP. Marbury just wanted his commission via Writ of Mandamus from SCRT in Original Jurisdiction, which is a court order for a government official to perform their duty they have to do. Marshall orders a preliminary writ.
• Marshall said the Judiciary Act of 1789 that congress pas
• What is the argument for why Marshall should have recused himself? Because Marshall was the old Sec. State and had to deliver those commissions.
Marbury vs. Madison (1803) - Main Issue:
Is Marbury entitled to a SCRT issued Writ of Mandamus to deliver commissions?
Has the applicant a right to the commission he demands?
• Finding: Madison broke law
If he has the right, and it’s been violated, do the laws give him a remedy?
• Yes, he was appointed and had a legal right to the commission & a remedy at law.
• Refusal to deliver is a clear violation of law.
• Marshall approaches by making a premise and then bringing it to a conclusion.
• Remedy is mandamus issuing from court, but SCRT doesn’t have original jurisdiction so the writ is denied and case is dismissed.
• Marshall did this because SCRT didn’t have power based on Article 3, didn’t give original jurisdiction for writ of mandamus and therefore congress gave unconstitutional power to SCRT.
Marbury vs. Madison (1803) - SCRT Ruling
Main Issue: is Marbury entitled?
Holding: • Yes he was entitled • Marbury had a legal right • Madison was subject to section 13 • But SCRT can’t perform section 13 act because congress gave us unconstitutional power and if they wanted to expand power it should have been by an amendment to constitution.
By the SCRT ruling they set the legal precedent (no higher court existed to reverse it) was set that SCRT could do Judicial Review.
Marshall should have never ruled and violated the constitution, because he used a power he didn’t have to make a precedent.
Which part of the Constitution is he referencing?
o Article 3: Court’s jurisdiction
o Article 6: Judge takes an oath, supremacy that the rule must be discharge
o Court wins on a negative
Marbury vs. Madison (1803) -
Who should interpret the Constitution?
o Jefferson said if it’s a political issue, courts have no say.
o Written Constitutions are fundamental law
o Consequently every government legislature that makes acts contrary to constitution are void.
o Marshall did exactly what Robert Yates predicted.
o Marshall said it’s the duty of the judicial dept. to say what law is. You must challenge the premise. Marshall’s premise was key to ruling.
o Province and duty of court to say what law is.
o If they have case that a law is contrary to the constitution the court must decide.
o Court should decide all cases under the constitution
o Departmental theory is that each branch determines their constitutional duties.
How to get a case into federal court?
- Diversity Jurisdiction
- Federal question is involved
Reasons for denial:
o Case lacks adverseness (real controversy)
o Parties lack standing (right to seek remedy for real harm)
o Issues are not ripe (injury has not yet happened)
o Issues are moot (facts or law no longer indicate injury)
Major Powers of the Court
- Writ Habeas Corpus – the court says bring the person before the court to see why that person has been detained.
- Write of Mandamus – the court orders a government official to duty their assigned duty. (Marbury vs. Madison)
- Injunction – Court can order something be done or not be done. Must be within the law and jurisdiction.
- Contempt of Court Power – can’t disrespect the court, can’t interfere with the court, can’t disobey and you can’t disrupt court.
- Judicial Review – court interprets if law is constitutional and what the constitution means.
Court Decisions or Opinions
- Decisions are (opinions): Majority decisions is binding law
- Types of Opinions:
Majority Opinion
• Concurring opinion (other judges can agree)
Minority Opinion
• Dissenting opinion (judges can together write it)
Unanimous Opinion
Per Curium
• Unsigned, brief decision in the name of the court
• Usually unanimous & not controversial
• Use to not hear
Marshall’s Frame of Interpretation
Too view the Constitution too narrow or strictly will cripple the government. If language is inadequate, look at the context of the document or structure for implied meaning (Is it grouped with limits or grouped with powers granted)
