Spring 2016- Professor Rensberger
CHAPTER 1- ISSUES IN JUDICIAL REVIEW
I. Judicial Review
[A] Origins of the Judicial Review Power
Marbury v. Madison
Change of political dominance in the White House – changing of Presidents.
Election of 1800- Federalists in power. John Adams was President. Turning over office to Thomas Jefferson.
Marbury- justice of peace for DC. Had commission signed by Adams and sealed by Marshall. Marbury never received his commission. Jefferson told Madison to stop delivering them.
John Marshall (new SC Chief Justice) Adam’s Secretary of State
Madison – Jefferson’s Secretary of State
Remedy for Mandamus- an official is not performing his/her duty required by office.
1) does Marbury have a right to the commission?
2) If he has that right and it has been violated, do the laws afford him a remedy?
3) If they afford him a remedy, is it a mandamus issuing from this court?
Court — IF you have a right there is a remedy.
Maybe there is not a remedy bc this a mere political act.
Now the question is there a right to a mandamus?
Judicial Review over the executive. So Marshall (SC) can decide to grant the mandamus and make the President do something.
Remedy is mandamus
The issue is whether Supreme Court has original jurisdiction.
Why can’t the SC have original jurisdiction? à ART. III (creates judicial branch, establishes SC)
Do we follow statute or constitution? Art. III says it’s X. It’s not X. What do we do?
Case is all about judicial review. Strikes down constitution = unconstitutional.
Courts are here to step in to check on majortarism. Minorities need protection on majorities.
1) constitution are hard to make
– unchanging; “permanent”; suppose to be fixed.
Court is there to keep fixed anchor on Constitution amongst political changes
2) “Written” constitution à more fixed; not subject to legislative change
3) Legislative Omnipotence (legislature would just take over)
4) Court gotta be a Court – Judicial Branch duty to say what the law is. Nature of being a court.
Broad view- special duty in judiciary to review law
Narrow view- review law Defensively
Bennett v. Spear
Klamath Irrigation Project.
No evidence of fish are being hurt.
Lower courts- no standing bc they are not in the “Zone of Interest”
1) Art III. Case/Controversy if no case/controversy – no standing
2) “Prudential” Standing requirements
Zone of Interests
– Ps protected/regulation not in zone if not protection/regulation
ESA “any person”
1) Injury in Fact
– judicially cognizable- something you legally have a right to have
– concrete and particularized
– actual or imminent
(sometimes have to invest/shell out $$ to show injury)
– traceable to the action you are complaining of
3) Redressable by a win
– if you win you get some release from that
protects over regulation. Standing over Administrative Procedure Act.
Hard to line up and predict the cases.
Warth v. Seldin- discrimination based on property size. Court no standing. No showing that even if there were low income housing, they would be willing to buy it. It would be low enough for your low income. Harder to show casual connection.
Lujan v. Defenders of Wildlife- do the Ps have standing? Visited the Nile crocodiles in Egypt and plan to go again one day if the habitat is not destroyed. Court destroyed standing. Vague someday plan to go to Egypt is not actual or imminent. Doesn’t meet test for Injury in Fact.
Quality Advocacy- people have a stake in litigation. People will argue better à Court benefits by getting a better quality of briefs. Protects peoples whose right at our stake.
SOP (Separation of Powers) concern. Can’t do
n an unlawful manner.
Wallet Injury: fails for taxpayer standing. Not an injury to your tax bill that is traceable or redressable.
Psychic Injury: it fails here too because it is not an actual injury. Not unique or particularized to this plaintiff. Not the right kind of concrete or particularized injury.
Can’t logically limit Flast. Either take it to its logical limits or overrule it.
Dissent: should be no difference between executive and legislature when it comes to standing. Injury here is judicially cognizable.
What if you’re saying the state is violating? Do you then have taxpayer standing. Applies equally the same to federal, but the distinction in the Arizona v. Winn case (pg 59) is that it’s a tax credit not taxing/spending.
(b) STATUTORY STANDING
Trafficante v. Metropolitan Life Ins. Co. all persons aggrieved can sue. Legally recognized cause of action. Standing can be expanded by Congress by giving rights to people.
Lujan case put a limit on that expansion. Any person may sue for a violation of the statute. Asserting right of the govt to follow procedures. There is really a public interest, not a private interest. Congress can only provide standing by giving you a right to sue for something to have standing. (psychic injury) Can confer standing on someone that has a concrete or particularized injury.
(c) THIRD PARTY STANDING
Has to violate your rights but there is an exception. You can attack a statute via the Overbreadth Doctrine. Allows you to assert the rights of someone else.