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Conlaw I > Judicial Review > Flashcards

Judicial Review Flashcards

1
Q

Judicial Review

A

Process by which courts decide whether action of government officials comply with the Constitution

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2
Q

Stuart v. Laird

A
  • Issue = whether courts had power to invalidate laws
  • Challenging repeal of 1801 Judiciary Act which created 16 new federal appellate judges and reduced size of SC from 6 to 5 as soon as vacancy occurred
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3
Q

Marbury v. Madison

A
  • Re: appellate and original jurisdiction of Court
  • Holding: Judiciary Act had given jurisdiction in area not granted by Constitution = void
  • Issue: Nothing in Constitution expressly says court can invalidate/validate congressional statute by engaging in judicial review
  • Rule: Must be able to look at Constitution for interpretation of constitutionality
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4
Q

Extent of Judicial Power Clause

A

Art. III, Sec. 2, Clause 1-2

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5
Q

Extent of Judicial Power Clause

A

Art. III, Sec. 2, Clause 1-2

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6
Q

Marbury v. Madison: Marshall’s Arguments for Judicial Review

A
  1. Written Const. = supreme, cannot be changed or conflicted with by ordinary legislation (structuralism)
  2. Judicial power over cases arising under Const. in Article III
  3. Oath by members of judicial branch, bound by oath to support Const.
  4. Supremacy Clause in Article VI “in pursuance thereof” = allows judges to assess validity
  5. Constitutional provisions specially directed to courts (Article III, Sect. 3 as example)
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7
Q

Power to Review State Court Judgments

A
  • SC power to review final decisions of highest state courts on matters of federal law (arising under the Constitution)
  • No power to review state court decisions adjudicating only state law issue
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8
Q

Martin v. Hunter’s Lessee

A
  • SC has appellate review in state court cases if decision arises under federal law (granted by Art. III, Sec. 2, Clause 1-2)
  • Decisions thereof = binding to state courts
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9
Q

Martin v. Hunter’s Lessee: Story’s Arguments for Power to Review State Court Judgments

A
  1. Art. III = gives federal courts jurisdiction over all cases arising under federal law
  2. Supremacy clause = state judges are obliged to apply federal law as superior to state law
  3. Need for uniformity = all constitutional questions must have same answer
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10
Q

When may SC exercise jurisdiction?

A

SC may exercise only jurisdiction that is

  1. given by Article III AND
  2. validly limited by Congress
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11
Q

Original SC Jurisdiction

A
  • Limited to cases between states and those involving diplomats
  • Cannot be enlarged or restricted by Congress
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12
Q

Appellate SC Jurisdiction

A
  • All other cases within Article III

- With such exceptions and regulation as Congress makes

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13
Q

Adequate and Independent State Grounds Doctrine - TEST

A

SC will not review a question of federal law decided by state court if the decision of state court rests on state law ground that is

  1. Independent of federal law AND
  2. Adequate to support the judgment
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14
Q

Independent (Adequate and Independent State Grounds Doctrine)

A

If the resolution of the issue is not tied to federal issues in the case

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15
Q

Adequate (Adequate and Independent State Grounds Doctrine)

A

If the judgment would have been upheld even if the federal ground was reversed

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16
Q

Adequate and Independent State Grounds Doctrine - RATIONALE

A

If validity under state constitution is same regardless of federal constitutionality = SC ruling is unnecessary, becomes advisory opinion

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17
Q

State Constitutionalism

A

States may interpret their state constitution in way that federal courts do not

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18
Q

Michigan v. Long

A
  1. If you rely on state law to render an opinion, you must make that clear in opinion so federal courts won’t meddle
  2. Presumption against adequacy and independence of state grounds as basis of decision by state court
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19
Q

Counter-Majoritarian Role

A

Court functions as a brake upon politically accountable branches of government

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20
Q

Argument for Counter-Majoritarian Role

A
  1. Legislatures will manifest the will of the majority, which may be intolerant of politically and socially unpopular minorities
  2. Federal judiciary is relatively immune to majoritarian pressure = better equipped to decide whether legislation is constitutional
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21
Q

Argument Against Counter-Majoritarian Role

A
  1. Carried out by unelected and politically unaccountable judges
  2. Is a repudiation of the fundament principle of a representative democracy (rule of our elected representatives)
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22
Q

Methods of Constitutional Interpretation

A
  1. Textualism
  2. Originalism
    - Original Intent
    - Original Meaning
  3. Structuralism (Prudential Arguments)
  4. Precedent (Doctrinal Arguments)
  5. Moral Reasoning & Philosophy
  6. History & Tradition
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23
Q

3 Tiers of Judicial Deference (Standard of Review)

A
  1. Minimal Scrutiny (Rational Basis Test)
  2. Intermediate Scrutiny (Important Purpose Test)
  3. Strict Scrutiny (Compelling Objective Test)
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24
Q

Rational Basis Test

A
  • MINIMAL SCRUTINY = presumption of validity
  • Challenger must prove law/action is
    1. Not rationally related to
    2. Legitimate government objective
  • Court may even make up government objective sometimes if not expressed/argued
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25
Q

Important Purpose Test

A
  • INTERMEDIATE SCRUTINY = some taint of presumptive invalidity but not quite enough to invoke strict scrutiny
  • Defender must prove actual purpose of statute or action is
    1. Important and
    2. Substantially related to the accomplishment of that actual purpose
  • Ex. Basis of sex
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26
Q

Compelling Objective Test

A
  • COMPELLING OBJECTIVE = Presumption of invalidity
  • Defender must prove law is
    1. Necessary to
    2. Accomplish a compelling government objective and
    3. Narrowly tailored to do so
    4. By the least restrictive means
  • Ex. Race
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27
Q

Judicial Restraint

A
  1. Court should not intervene if legislation can be upheld

2. Politics is a war = legislature should get what it wants since it won the way

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28
Q

Representation Reinforcement Theory

A
  1. Need to protect ability to change the system

2. Intervene only when market is systemically malfunctioning, doesn’t try to produce substantive results

29
Q

Systemic Malfunction - DEFINITION

A

Occurs when process is undeserving of trust

30
Q

Systemic Malfunction - EXAMPLES

A
  1. “Ins” are choking off channels of political change to ensure they stay in power and that “outs” stay out
  2. Representatives behold to effective majority are systemically disadvantaging some minority our of pure hostility or prejudice, thus denying this minority protections afforded to other groups
31
Q

Limiting Scope of Judicial Review: Direct Political Controls

A
  1. Amendment
  2. Appointment
  3. Impeachment
32
Q

Doctrines Limiting Scope of Judicial Review

A
  1. Direct Political Controls
  2. Congressional Power to Control Jurisdiction of Courts
  3. Justiciability
33
Q

Congressional power to limit jurisdiction of all courts

A

Article III gives Congress

  1. Considerable (but not unlimited) discretion to control federal jurisdiction
  2. Power to eliminate federal courts once they have been created
34
Q

Exceptions to and Regulations of Supreme Court Appellate Jurisdiction

A

Congressional power to limit jurisdiction of all courts:

  1. Power to make exceptions and regulations to SC appellate jurisdiction
  2. Power to establish inferior courts (implies authority to limit jurisdiction of lower federal courts)
35
Q

Ex parte McCardle

A
  • Issue = May Congress withdraw jurisdiction from the United States Supreme Court after jurisdiction has been given?
  • Holding = Although the United States Supreme Court’s appellate jurisdiction is derived from Article III of the Constitution, it is conferred subject to whatever exceptions and regulations Congress chooses to make
36
Q

Limitations on Congressional Control of the Jurisdiction of Inferior Federal Courts

A
  1. Cannot violate constitutional provisions (like original jurisdictions)
  2. Cannot take away jurisdiction from state courts
  3. Cannot be used to impair court’s power or essential function
  4. Cannot add original jurisdiction of SC
  5. Can only withdraw jurisdiction (when it dislikes results of courts’ decisions) if withdrawal is not in substance a command to decide in a prescribed way
37
Q

Justiciability - DEFINITION

A

The quality or state of being appropriate or suitable for adjudication by the court

38
Q

Justiciability - LIMITATION

A
  • Self-imposed limitation by Court

- Jurisdiction over only cases and controversies

39
Q

Justiciability - PURPOSE

A

Ensure that court will not intrude into areas of other branches and will work in areas capable of resolution

40
Q

Justiciability - DOCTRINES

A
  1. Advisory opinions
  2. Standing
  3. Ripeness
  4. Mootness
  5. Adequate and independent state grounds
  6. Political questions
41
Q

Advisory Opinion - DOCTRINE

A
  • Prohibition against advisory opinions
  • Requires:
    1. Actual dispute between adverse parties and
    2. Likelihood that judicial intervention for prevailing party with have some effect
42
Q

Advisory Opinion - DEFINITION

A

Decision on a hypothetical situation or abstract problem (as opposed to concrete controversy)

43
Q

Standing - CONSTITUTIONAL SOURCE

A

Article III, Sec. 2, Clause 1 = case or controversy requirement

44
Q

Standing - REQUIREMENTS

A
  1. Injury in fact
  2. Causation
  3. Redressability
  4. Satisfy prudential standing rules
45
Q

Injury in fact

A

Invasion of legally protected interest that is

  1. Concrete and particularized (not general/abstract) and
  2. Actual or imminent (not conjectural/hypothetical)
46
Q

Causation

A

Caused by or fairly traceable to defendant’s action complained of

47
Q

Redressability

A

Must be likely (as opposed to merely speculative) that the injury will be redressed by a favorable decision

48
Q

Parens Patriae Standing - DEFINITION

A

State standing in for its citizens to protect quasi-sovereign interest

49
Q

Parens Patriae Standing - REQUIREMENTS

A
  1. Must express quasi-sovereign interest in one of these two categories:
    A. In the health and well-being (physical and economic) or its residents in general = suit against private party or another state
    B. In not being discriminatorily denied its rightful status within the federal system = suit against federal government
  2. Injury to substantial segment of its population
  3. Causation
  4. Redressability
50
Q

When has Flast v. Cohen been used successfully?

A

Only been used successfully for challenges to congressional use of taxing/spending power under the Establishment Clause
(which is designed to limit Congress’ ability to tax and spend for purposes of promoting or furthering religions)

51
Q

When has Flast v. Cohen been used successfully?

A

Only been used successfully for challenges to congressional use of taxing/spending power under the Establishment Clause
(which is designed to limit Congress’ ability to tax and spend for purposes of promoting or furthering religions)

52
Q

When has Flast v. Cohen been used successfully?

A

Only been used successfully for challenges to congressional use of taxing/spending power under the Establishment Clause
(which is designed to limit Congress’ ability to tax and spend for purposes of promoting or furthering religions)

53
Q

Prudential Standing Rules

A
  1. Third Party Standing

2. Zone of Interests

54
Q

3P Standing - RULE

A

Cannot assert the rights of a 3rd party but instead must assert his or her own rights and interests

55
Q

3P Standing - EXCEPTION

A
  1. Substantial or special relationship exists between P and 3P
  2. Congruent interest AND
  3. Circumstances render it impracticable or impossible for 3P to advance her own interests
56
Q

Relationship Requirement (3P Standing)

A

Claimant’s rights are so inextricably connected to 3P rights that vindication of one right will necessarily vindicate the other

57
Q

Zone of Interests Requirement

A

P’s injury is of a type that law invoked was meant to protect against (falls within zone of interests protected by law invoked)

58
Q

Organizational Standing

A

When an organization (unincorporated association) asserts interests of people who they claims to represent (members) it must establish:

  1. Members would have standing to sue independently
  2. Interests asserted are germane to association’s purpose AND
  3. Neither the claim asserted nor the relief requested requires the member’s participation in the suit
59
Q

Ripeness - DOCTRINE

A

Excludes from judicial review matters that are premature for adjudication (not ripe = brought too early)

60
Q

Ripeness - ANALYSIS

A

Ripe if

  1. Specific harm for which P is seeking redress has already befallen P OR
  2. P is faced with a specific present harm OR
  3. P is under threat of a specific future harm
61
Q

Mootness - DOCTRINE

A

Excludes from judicial review matters that are expire (moot = brought too late)

62
Q

Mootness - EXCEPTIONS

A
  1. Capable of repetition yet evading review
  2. Class action suits
  3. Voluntary cessation
  4. Continuing collateral consequence
63
Q

Mootness - ANALYSIS

A

Moot if

- Controversy is resolved after case is filed but before outcome of case has been decided

64
Q

Capable of Repetition Yet Evading Review (Mootness)

A
  1. Life of controversy is too short to be fully litigated prior to its termination AND
  2. There’s a reasonable expectation P will be again subjected to same problem
65
Q

Class Action Suits (Mootness)

A

If claim has been properly certified as class action, even if case becomes moot as it related to named P, case itself will not be moot

66
Q

Voluntary Cessation (Mootness)

A
  • D voluntarily, but not permanently, changed his conduct before case is decided
  • Voluntary cessation moots a case only if it’s absolutely clear that wrongful behavior could not be reasonably expected to reoccur
  • Burden on party asserting mootness = high hurdle
67
Q

Continuing Collateral Consequence (Mootness)

A

Secondary or collateral injury/consequences may survive after P’s primary injury has been resolved

68
Q

Political Question Doctrine - ANALYSIS

A

Baker v. Carr Factors

  • at least one must be present
  • listed in descending order of importance and certainty
    1. Textually demonstrable constitutional commitment of that power to another branch
    2. Lack of judicial discretion and manageable principles for resolution
    3. Impossibility of deciding without making policy decision not suitable for judicial discretion
    4. Lack of respect for other branches in undertaking
    5. Unusual need for unquestioning adherence
    6. Potential for embarrassment for differing pronouncements of the issue by different branches of government

Conlaw I (2 decks)

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