The judicial review process Flashcards
Define judicial review
The power of the SC to declare acts of congress, executive actions, or acts or actions of the state governments unconstitutional and thereby null and void
How was judicial review ‘found’
In the 1803 Marbury vs Madison case, as this was the first time the SC had declared an act of congress unconstitutional
Why did the power of judicial review need to be found in the Marbury v Madison case?
Because it is not enumerated in the constitution
Why was the 1810 Fletcher vs Peck case significant?
Because it was the first time that the SC had found a state law unconstitutional
What can the SC use judicial review to do to the constitution?
Update the meaning of the words in it
Give some examples of how the SC can update the meaning of the words in the constitution to make sure it stays relevant
- The SC can decide what the 8th amendment means when it forbids ‘cruel and unusual’ punishment
- They can decide how the first amendment right to free speech applies to the internet
How does former Chief Justice Charles Evan Hughes summarise the idea that SC justices have massive control over what the constitution is and means?
‘We are under a constitution, but the constitution is what the judges say it is’
What has the SC used judicial review to involve itself in a wide range of?
Political issues
What does the SC use judicial review to act as the guarantor of?
Civil rights and civil liberties
Define civil rights
Positive actions by the government to protect people from discriminatory or arbitrary actions from government or people
Define civil liberties
Those liberties, mostly set out in the constitution, that protect, people, property and expression from arbitrary state interference
Why does judicial review give the SC great political importance?
Because many of the issues it deals with will be the key political issues of the day, the matters over which parties disagree and elections are fought
How does Mark Shields highlight the political importance granted to the SC by JR?
He says that the only thing that separates the two parties is abortion, and it is the SC through JR that decides upon the constitutionality of abortion
List some of the politically contentious issues the SC has handed down landmark decisions on in recent years
The rights of racial minorities, capital punishment, gun control and freedom of speech
Give a 21st century case that indicates the political importance of the SC
Bush vs Gore (2000)
Why was Bush v Gore so politically significant?
Five weeks after the 2000 presidential election, the SC ruled that the manual recount scheme created by the Florida state SC was unconstitutional because it violated the equal protection clause of the 14th amendment. The court also ruled that because of the time constraints, ‘any recount seeking to meet the deadline for the vote count will be unconstitutional’. The court was seen by someone to be effectively handing the presidency to GWB
Give a recent case that has demonstrated the political importance of the SC
Trump vs Hawaii (2018)
How was Trump vs Hawaii politically significant?
The SC ruled by 5-4 that a Trump administration executive order curbing immigration was constitutional, much to the annoyance of the Ds
What kind of body does JR turn the SC into?
A quasi legislative body
Why can the SC be called a quasi legislative body?
Because there decisions almost have the same effect as a law being passed by congress
Give an example of an SC ruling holding more value than congressional legislation on the issue?
When the 1973 Roe v Wade case stated that women do have the constitutional right to choose to have an abortion
What has the SC been described as due to the quasi legislative power granted to it by JR?
The third chamber of the legislature
