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Constitutional Law I
University of Alabama School of Law
Krotoszynski, Ronald J.

Constitutional Law


Spring 2015

Judicial Review

CITE: Art III §2

· Court’s ability to review laws and declare Unconstitutional NOT in Constitution

o BUT several key decisions By Supreme Court have established Judicial Review…

When fed laws possibly Unconstitutional, Supreme Court may review AND declare such law invalid

· Marbury v. Madison “Judicial Review”………………………(Marshall)[4-0]

***Rule: Supreme Court can review federal laws AND declare them invalid IF Unconstitutional***

State laws are ALSO reviewable by Supreme Court based on Constitutional grounds

· Martin v. Hunter’s Lessee “Over State Courts”………………(Story)[7-0]

o Court held b/c federal laws are “supreme law of land”, states’ laws are ALSO subject to judicial review

***Rule: Supreme Court has judicial review over state laws***

CITE: Art. VI §2… Supremacy clause

Supreme Court can review state criminal convictions when Constitutionality is in question

· Cohens v. VA “Lottery Tickets”………………………………(Marshall)[6-0]

***Rule: Supreme Court has appellate jurisdiction of criminal convictions IF Constitutionality is in question

· Can even declare actions of state officials Unconstitutional

o Ex. Arkansas refusing to desegregate schools (Cooper v. Aaron)***

BUT, Supreme Court does NOT have unlimited jurisdiction over state court rulings

· Michigan v. Long “Adequate & Independent”……….(O’Connor)[6-3]

o Supreme Court affirmed personal police searches of suspects w/o probable cause

o Here, D’s car was searched w/o him in it AND marijuana was found

o Court held b/c opinion relied heavily on federal law AND did NOT say anything to the contrary, it could be reviewed

***Rule: Supreme Court will NOT review state law IF there is an “Adequate & Independent grounds”…AKA NO advisory opinions

· IF state court rules on 2 Constitutional grounds: 1 federal & 1 state… Court can NOT review IF state ground is “Adequate AND Independent”

o MUST be “plain statement” to that effect***


· IF state constitution ground is copying OR based on federal Constitution… can STILL be reviewed by Supreme Court

*Modern Supreme Court jurisdiction is almost ENTIRELY from discretionary “writs of certiorari”

EXCEPTION to writ requirement

· Cases decided solely on state law… AKA “Adequate & Independent”

Congressional Control over Supreme Court Jurisdiction

While Congress can NOT limit/extend Original jurisdiction of Supreme Court as enumerated…

· Congress can give Supreme Court further appellate jurisdiction through statutes

· CITE: Art. III §2… Exceptions clause

BUT… Congress can ALSO take away such appellate jurisdiction

· Ex Parte McCardle “Changing Appellate Jurisdiction”….(Chase)[8-0]

o Court held b/c Congress has control of appellate jurisdiction, free to repeal it

***Rule: Congress can extend AND repeal appellate jurisdiction to Supreme Court

· “W/ such exceptions as Congress shall make”***

BUT Congress can NOT create Unconstitutional appellate jurisdictions

· US v. Klein “Prez Pardons”……………………………………………(Chase)[7-2]

***Rule: Congress can NOT create jurisdictions to determine outcome OR facts… Unconstitutional***

Justiciability: Ability of potential case to be heard in Fed court

· For federal courts to hear… MUST be Art III “case & controversy”

o MUST be matter in which…

§ Actual dispute w/ legal relations of adverse parties

§ Judiciary can provide effective relief

Thus, federal courts can NOT issue “Advisory Opinions”

· Flast v. Cohen “NO Advisory Opinions”…………… (Warren)[8-1]

***Rule: Federal courts can NOT issue advisory opinions

· BUT… federal courts can STILL order declaratory relief***

*States CAN issue advisory opinions IF they wish

*Parties can raise Constitutional issues in 6 ways…

1. IF statute is basis of claim OR defense in suit between individuals

2. IF state OR federal brings civil suit based on statute

3. IF government has criminal proceedings based on statute

4. IF party damaged by government action claims it was Unconstitutional

5. IF persons held in official custody VIA Habeus Corpus

6. IF seeking injunction for Unconstitutionality

Elements of Justiciability… SRMP

· Standing

· Ripeness

· Mootness

· Political Questions


· 3 Elements

o Injury in Fact

§ Can be actual OR imminent

ú IF TOO abstract AND unfamiliar to courts… LESS likely to find standing

o Causation

§ MUST be causal link between injury AND adverse party’s conduct

o Redressability

§ Party MUST benefit from remedy sought

ú Limits remedies sought by parties

*Party initiating suit has burden of showing 3 elements

Does this issue implicate separation of powers?

o 2) Does Constitution commit resolution of this issue to EITHER Prez OR Congress?

§ IF YES to BOTH… Political Question

Supreme Court has offered factors to consider in determining IF issue is Political Question

· Baker v. Carr “What’s a Political Question?”……..(Brennan)[3-3-2]

***Rule: 2 Categories w/ 6 Types of Political Q cases

· Separation of Powers

o 1) “Textually demonstrable constitutional commitment”

o 2) Taking of case would show lack of Respect for branches

o 3) Unusual need for unquestioning adherence to decision

o 4) Potential for embarrassment

· Judiciary Limitations

o 5) Lack of judicially discoverable AND manageable standards

o 6) Impossibility of deciding w/o initial policy decision***

THUS, sometimes, Supreme Court can make judicial decisions regarding other branches’ powers

· Powell v. McCormack “Excluded Representative”……..(Warren)[8-1]

o Representative P was elected as House Rep

o BUT P was excluded from swearing in AND sitting in session

o Court held b/c P was “excluded” NOT “expelled”, judicial branch could rule on issue

***Rule: Congress has exclusive power over expulsion proceedings… BUT NOT “exclusions”***

BUT, certain aspects of other branches can NOT be reviewed by Supreme Court

· Nixon v. US “NO Impeachment Reviews”……………..(Rehnquist)[9-0]

o P was federal judge convicted of perjury AND impeached

o P appealed to Supreme Court

o Court held b/c power to impeach is express to Senate, judicial can NEVER review

*Souter Concurrence: may be able to review IF actions exceed Constitutional authority

***Rule: When power is specifically reserved for another branch, Judicial can NOT rule on it

· Judicial can ALSO NOT touch…

o Amendment ratifications

o President’s power to end treaties

o Foreign Affairs

o Guaranty clause under Art IV***