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Constitutional Law I
Rutgers University, Newark School of Law
Weiner, Mark S.

I. Judicial Review: The nature and sources of the Supreme Court’s Authority
A. Supreme Court
1. Established by Art III, Section 1: judicial power “shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
2. Art III, Sec 2: US Supreme Court has appellate jurisdiction of various listed “cases and controversies” (review these before exam)
i. Congress cannot abridge or enlarge the Court’s original jurisdiction [Marbury].
3. Art III, Sec 2: gives US Supreme Court original jurisdiction over only one group of cases: “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party
B. Judicial Review: Marbury v. Madison
1. Judicial (appellate) review permitted of acts by other members of government, depending on the nature of the act.
i. strictly political acts permitted by Constitution may not be reviewed; i.e., discretionary acts (e.g., Art II, sec 2.2-2.3)
a. “political questions” are not reviewable
ii. where a duty is assigned by law and individual rights depend on performance of that duty, it is reviewable
2. the Court decides the rights of individuals and may not inquire how the
executive or executive officers perform duties in which they have discretion
3. Congress gave US Supreme Court power to issue writs of mandamus to any courts or persons holding office under authority of US (Judiciary Act, 1789) if the Court has appellate jurisdiction over the issue
i. this act ruled unconstitutional by Marbury; the Constitution must always trump a void law
ii. had Marbury brought the case in a lower federal court and then appealed to Court, the Court, by Marshall’s logic, could have issued mandamus.
4. How does Marshall legitimize declaring a law unconstitutional?
i. Constitution is superior to legislation and cannot be changed by ordinary legislative acts
ii. does it follow that the Court is the sole interpreter of laws?

C. The Legitimacy of Judicial Review
1. As judicial review is not explicit in the Constitution, there is debate as to whether it should exist
i. historical precedent seems lacking for the most part (13ff)
ii. idea of popular sovereignty replacing legislative sovereignty in
late 18th c, may have something to do with it
iii. development of written constitutions also contributes
2. The Constitutional Convention
i. arguments for and against judicial review were made
3. Federalist Papers, #78 by Alexander Hamilton
i. supports the notion of judicial review because:
a. courts are an intermediary body between the people and
the legislature to keep the legislature within the limits of its assigned authority
4. Judicial Review and the Judicial Role: Hand vs. Wechsler
i. Hand: no constitutional authority to review decisions of the
Congress; such review was inconsistent with separation of powers
a. the use of judicial review was merely a pragmatic step to
help a fledgling govt survive
ii. Wechsler: Supremacy Clause (Art VI) and Art III clearly
legitimates the power of judicial review
a. therefore, courts must review all constitutional questions,
not just some of them, so as to maintain “neutrality”; should use a system to decide which cases to review
5. Judicial Review and Democracy
i. does an unelected court have the right to review decisions made by those elected by the people?
ii. counter-majoritarian, but our system is structurally leery of direct democracy
D. The Authoritativeness of Supreme Court Decisions
1. Are judicial interpretations binding on executive branch?
i. in some cases, the executive can pardon those he feels were
convicted by an unfair law
ii. perhaps each decision should only redound to the instant case,
and not be considered broadly unconstitutional
2. Scope of Interpretive Autonomy of the Govt Branches
i. where is the boundary between legitimate disagreement and
improper defiance?
3. Cooper v. Aaron, 358 US 1 (1958): a broad view of judicial authority
i. held that court interpretations are “supreme in the exposition of the law of the Constitution”
ii. argued that Marbury declared the basic principle that the federal
judiciary is supreme in the exposition of the law of the Constitution.
a. seems to expand the Marbury holding? (p. 9: Marshall seems to argue that judicial review was limited to specific cases)
iii. Cooper held that the federal Court and Constitution could be binding upon a state governor; a federalism issue
iv. if the Court’s decisions are indeed binding, then how come it is permitted to change its mind?
4. Dickerson v. United States, 384 US 436 (2000)
i. held that while Congress may overrule the Court using an Art V
amendment, it may not do so with a mere statute
ii. Dissent: if the statute contradicts merely the Court opinion but not the Constitution itself, then this expands the judicial review power and is antidemocratic.
5. Overruling US Supreme Court with Art V Amendment
i. Cooper and Dickerson appear to say that neither Congress nor the states can overrule the Court on constitutional law (except through use of Amendment)
ii. Amendment power rarely used because:
a. supermajority difficult to get
b. politicians are no longer in the mood to do it
c. US Supreme Court has been willing to make “new
readings” of the Constitution, typically in response to changes in public opinion

II. Constitutional and Prudential Limits on Constitutional Adjudication: (i.e., who may take a case to court to have the issue decided?)
A. The Nonjusticiability of Political Questions
1. Marbury : 2 strands of thought emerge
i. constitutional: expressly disavowed the Court’s ability to question Constitutionally established discretionary powers

of standing
c. must arise neither too soon nor too late
i. mootness and ripeness
2. The Rule against Advisory Opinions
a. against checks and balances concept
b. also imprudent
c. policy: the need for judicial restraint
i. a Constitutional issue should not be adjudicated except under “strict necessity” (i.e., the ruling is unavoidable)3
ii. that is, opinion will not be determined:
a. in nonadversary proceedings
b. in broader terms beyond what is necessary for the
instant case
c. if party fails to show injury from the statute
d. if a construction of the statute is possible by which the question may be avoided
3. Standing: whether litigant is entitled to have the court decide the merits of the dispute or of particular issues
a. standing is a jurisdictional issue
i. that is, if there is no standing, then the court lacks subject matter jurisdiction
ii. moreover, like subject matter jurisdiction, standing can be challenged at any time in the process and can be raised sua sponte
iii. standing issues normally only arise when the gov’t is being sued
b. Art III requires that a party seeking a decision from Court must:
i. injury-in-fact: show that he personally has suffered some actual or threatened injury4 as a result of the putatively illegal conduct of the defendant or a statutorily-created injury (injury should be concrete
1 Group of voters sued Tennessee in federal court to have federal govt force the state to reapportion voting districts. Court majority holds there is no political question and Guranty Clause is not implicated in the case.
2 In class hypo: What happens if you bring a challenge based on the Guaranty Clause (Art IV, § 4) in state court rather than federal court? Would the state court have to throw it out the way the federal court would? If the issue is truly that of separation of powers, then it seems the State court could handle the issue. [I add: but is this true, since there could never be any review of the state court’s decision by the federal judiciary.] 3 The “strict necessity” formulation comes from a 1947 decision. Wise says: under the Warren court, US Supreme Court began to reach out and adjudicate a broader range of cases.
4 aka, “a cognizable legal interest.” Also, harm may be indirect, but this makes it difficult to prove standing (p. 51)