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Constitutional Law I
University of California, Hastings School of Law
Faigman, David L.

Constitutional Law Faigman Spring 2014
Justiciability/Judicial Review
A.   The Basics of Judicial Review
                         I.      Judicial Review of the Coordinate Branches
                                      i.      What It Is- Judicial review empowers the judicial branch to review the decisions and acts of other branches to determine their constitutionality.
                                    ii.      Source of Law- The Federalist Papers, Article III, Section 2, Cl. 2 of the Constitution, and federal common law.
                                  iii.      The Rule of Marbury- Marbury teaches us that it is the province of the judiciary to say what the law is. This means that the judicial branch interprets the Constitution, and has the authority to review decisions and actions of other branches.
                                  iv.      The Review/Discretion Distinction- In Marbury, Marshall distinguishes between review of Executive Branch actions, and interfering with the Executive’s political discretion. He suggests that, where the Judiciary will infringe on the political discretion of the Executive, judicial review is inappropriate.
                                    v.      Concerns with Judicial Review- There is an argument that, with a written Constitution, there is less need for definitive interpretations. In addition, judicial review is an intrusive process, and may be distinguished from the Court’s interpretation and application of the law, creating separation of powers concerns.
                      II.      Judicial Review of State Court Judgments
                                      i.      What It Is- The Supreme Court’s original jurisdiction gives it authority of judicial review over state court judgments.
                                    ii.      Source of Law- The Supremacy Clause (U.S. Const. Art. VI), Article III, § 2, cl. 2 of the Constitution, § 25 of the Judiciary Act of 1789 and the federal common law.
                                  iii.      Rule of Martin v. Hunter’s Lessee- The Framers anticipated federal issues would come up in state court, and gave the Supreme Court original jurisdiction over all cases and controversies. This jurisdiction extends to state courts, to preserve the uniformity of decisions.
                                  iv.      Application; Cohens v. Virginia- SCOTUS appellate jurisdiction over state court judgments has been upheld, with SCOTUS questioning the independence of state court judges, and their ability to interpret the Constitution.
                   III.      Judicial Review & The Other Branches
                                      i.      What It Is- This subsection addresses the other branches and entities of government, and assesses on whom Supreme Court decisions are binding.
                                    ii.      State Executive Branch Officials- Cooper tells us that the Supremacy Clause and Article III confers authority upon the Supreme Court to bind state Executive Branch officials to the holdings of its decisions.
                                  iii.      Congress- Dickerson tells us that Congress is bound by Supreme Court decisions and, as it only exercises supervisory authority over the Court, may not invalidate constitutional decisions legislatively. Congress is bound by the Court.
                                  iv.      The Executive Branch- While the logic of judicial review indicates that that Executive Branch officials should be bound by the decisions of the Court, presidents have often declined to follow SCOTUS dictates.
B.   Limits on Judicial Review & Jurisdiction
                         I.       Justiciability in General
                                      i.      Definition- Justiciability allows a court to hear, or prevents the court from hearing specific cases. The justiciability doctrines presented in this part of the outline serve to limit the Court’s power.
                                    ii.      Constitutional & Prudential Requirements- While some justiciability doctrines (ex. Standing) come from the Court’s interpretation of Art. III, § 2, others (PQD) are simply a reflection of prudential limits the Court has placed on itself to ensure effective administration of the Court system, and to keep the Court from decisions it should not rule on.
                                  iii.      Policies Underlying Justiciability- Separation of powers is the ultimate concern of justiciability. We don’t want the Court to become superior to other branches. Justiciability also conserves judicial resources by limited the cases the Court is able to hear, improves the quality of judicial decisions by limiting the Judiciary’s workload, and promotes fairness.
                                  iv.      Advisory Opinions- Generally, the Court will not issue advisory opinions to the other branches of government. This began during the Washington Administration. The court will not hear a case unless there is an actual case or controversy. See Rescue Army v. Municipal Court, and the standing section of this outline.
                      II.      Congressional/Political Limits on the Court
                                      i.      What It Is- Congress may set limits on Supreme Court jurisdiction, and make exceptions to the Court’s appellate jurisdiction. However, Congress may not overturn Supreme Court decisions via legislation.
                                    ii.      Source of Law- Art. III and federal common law.
                                  iii.      Court Stripping- Article III confers upon Congress the ability to supervise the Court’s jurisdiction. When it withdraws the Supreme Court’s jurisdiction as to a particular matter, the Supreme Court may not inquire into Congress’ authority, and may only examine it’s power to withdraw jurisdiction. See Ex Parte McCardle.
                                  iv.      Constitutional Amendment- Congress may amend nearly any provision of the Constitution to sup

t to effectively undo. PQD also gives the Court an avenue for preserving its legitimacy by not hearing these types of questions.
                                  iv.      The Six Factor Test- Where there is (1) a textually demonstrable constitutional commitment of an issue to a coordinate branch of government, (2) a lack of judicially discoverable or manageable standards for resolving the issue, (3) the impossibility of deciding an issue without disrespecting a coordinate branch, (4) the impossibility of deciding the issue without making a policy decision beyond the court’s discretion, (5) the unusual need for adherence to a political decision already made, and (6) a potential for embarrassment from multiple branches making pronouncements on the same issue, the question may present a nonjusticiable political question. Conduct a totality of circumstances analysis. See Baker v, Carr.
                                    v.      Traditional Applications- PQD is typically applied to (1) foreign affairs, (2) constitutional amendments, (3) impeachment cases, (4) cases under the Guarantee Clause and (5) gerrymandering.
                                  vi.      Distinguishing Legal Questions from PQD- Where there is a different legal avenue for the Court to hear a case, it may be heard. For example, in Baker and Bush v. Gore the Court heard gerrymandering and election challenges on Equal Protection grounds, though the six factor test suggests these issues should be nonjusticiable.
                                vii.      Examples of the Court Dealing with PQD
1.      Congressional Qualifications- Powell misused House funds, and the House refused to seat him. The Court ruled the question justiciable because Art. I § 5 displayed a textually demonstrable commitment which allowed the Court to hear cases on congressional qualifications, though not whether members met those qualifications. See Powell v. McCormack.
2.      Treaty Abrogation- Questions of the Senate’s role in treaty abrogation present nonjusticiable political questions because they involve foreign policy, are the responsibility of another branch, and have potential for embarrassment. See Goldwater v. Carter.
3.      Impeachment- There isn’t a textual commitment which allows the Court to review the validity of impeachment proceedings. In addition, the embarrassment, respect, and finality prongs are satisfied. See Nixon v. United States.