Select Page

Constitutional Law I
Santa Clara University School of Law
Steinman, Edward H.

Chapter 1: The Nature and Sources of the Supreme Court’s Authority
I. Judicial review = the doctrine that the courts have the power to invalidate governmental action which is repugnant to the constitution. “It is emphatically the province and the duty of the judicial department to say what the law is.” Marbury v. Madison.
1.     Justifications for the doctrine:
a.      Constitutional texts (Marbury):
                                                              i.      Art. I, sec. 9, cl. 3: Congress cannot pass Bills of Attainder and Ex Post Facto Laws. If, nevertheless, Congress passes such laws the people shall be “victims” and the courts are the ones to protect them. Marbury.
                                                            ii.      Art. I, sec. 9, cl. 5: Congress cannot lay tax/duty on articles exported from states;
                                                          iii.      Art. II, sec. 2: President has the power to appoint ambassadors, other public ministers and consuls, USSC judges, and al other officers of the U.S.
                                                         iv.      Art. III, sec. 1;
                                                           v.      Art. III, sec. 2, cl. 1;
                                                         vi.      Art. III, sec. 2, cl. 2;
                                                       vii.      Art. III, sec. 3 (treason): language addressed particularly to the courts.
                                                     viii.      Art. VI, cl. 2: supreme law;
                                                         ix.      Art. VI, cl. 3: oath of office;
                                                           x.      5th Amendment.
b.     Checks and balances theory: judicial review of congressional action is justified because Congress has the power to check the Court:
                                                              i.      Can amend the Constitution (weak);
                                                            ii.      Gives consent to the President’s appointment of USSC judges;
                                                          iii.      Passes statutes giving USSC jurisdiction;
                                                         iv.      Impeachment power extends over USSC justices.
c.     Practical considerations: courts need to keep the government from foundering; otherwise we would not exist (Hand). “If we don’t have the power to review, that is the end of the Constitution.” (Marshall in Marbury).
2.     Rules of the doctrine:
a.      USSC has the power to review acts of Congress for their constitutionality. Marbury v. Madison (Act of Congress giving USSC appellate J over Marbury’s case held unconstitutional).
b.     USSC has the power to review acts of the federal executive for constitutionality.
c.     USSC has the power, based on the Supremacy Clause, to review acts of state governments for conflicts with federal law. In particular, USSC has appellate jurisdiction, granted by an Act of Congress, over state court decisions based on federal law.[1] Rule: USSC cannot review state court decisions based on dispositive adequate and independent state grounds even though the decision may also rest on an erroneously decided fe

=> restraint from conflict with others.
                                                            ii.      The legislature can change the statute in question making the USSC’s decision useless.
                                                          iii.      Practical considerations: image of the court; is it possible to the court to decide the case (get the information, interfere too much with other branches, etc.)
b.     Grounds for avoidance:
                                                              i.      Political question: the doctrine is constitutionally based on the distinction between “case” (which gives rise to judicial power under Art. III, sec. 2, cl. 1) and “political act.” However, the constitutional support of the doctrine is unclear. The doctrine is rarely used because the court, after finding a political question, cannot decide the case on other grounds and the party cannot get judicial redress (that distinguishes the doctrine from all the other grounds for avoidance!). Baker v. Carr contains reference to three theories re political questions:
[1] USSC will defer to decisions of state law by lower federal judges and will defer even more to state-law decisions by state courts.
[2] NB: state law can give more rights than federal law and will not be held repugnant to federal law in that case!