I. Judicial Review and Constitutional Structure
A. The Origins and Theory of Judicial Review
1. Judicial Review
1. The process by which courts decide whether actions of government officials comply w/ Constitution
2. Marbury v. Madison: The Establishment of Judicial Review
1. Facts: Outgoing President Adams had appointed Marbury a justice of the peace but the commission had not been delivered to him. Incoming Pres. Jefferson’s Sec. of State Madison, refused to deliver the Commission and Marbury filed suit in the S.C. under Section 13 of the 1789 Judiciary Act, seeking a writ of Mandamus to compel Madison to deliver his commission.
a. Marbury had a right to his commission because it was complete upon the signing by the President
i. Opponents contend delivery was necessary
b. Marbury had a judicially enforceable remedy because the very essence of civil liberty was for courts to provide a remedy for every wrong. Marshall then admitted that the political acts of the President and his cabinet within their lawful discretion are not reviewable by courts.
c. Marbury was not entitled to mandamus from the S.C. because Art. III. Only gives the Court original jurisdiction of cases involving foreign diplomats or between 2 states.
i. Held that when a statute and the Constitution conflict- the constitution as a higher law prevails and it is emphatically the province and duty of the judiciary to say what the law is
ii. Congress could not expand the jurisdiction created under Art. III. And thus S.C. lacked jurisdiction over Marbury’s suit.
d. Marbury’s 5 Jusitifications for Judicial review
i. It is a necessary inference from a written constitution – empty and foolish act to write a constitution if it has no meaning
ii. It is a necessary aspect to the judicial role of interpreting law
iii. It is implied from the command of the Supremacy Clause that the Constitution is the Supreme Law of the Land and is to be binding on state courts
iv. It is implied from the fact that Art III gives the federal courts jurisdiction over all cases arising under the Constitution
v. It is implied in the fact that judges take an oath to support and uphold the Constitution
3. Arguments for Utility of Judicial Review
1. Countermajoritarian Role
a. Constitutional rights are intended to protect political minorities so Congress cannot be thus trusted- but judges are insulated from majoritarian pressure.
a. If each branch of the federal govt is equally free to determine the meaning of the Constitution- there will never be any settled meaning
4. Arguments Against the Utility of Judicial Review
a. Federal judges are unelected an are not politically accountable. To vest final authority over the meaning of the Constitution in such people is a repudiation of the principle of democratic self governance.
2. Entrenched Error
a. Judicial Review means that it is very difficult to correct mistaken judicial interpretations of the Constitution.
i. Court must change its mind or
ii. Impeachment or
iii. Constitutional amendment
5. Judicial Exclusivity in Constitutional Interpretation?
a. Cooper v. Aaron
i. Facts: AK refused to desegregate its schools in compliance with Brown.
ii. Holding: Court’s power is exclusive when the other contender is a state.
iii. Analysis: The constitution is the supreme law of the land and judges are the supreme law of the land.
B. The Power to Review State Court Judgments
1. Martin v. Hunter’s Lessee
1. Issue: Does the appellate power of the S.C. extend to court of appeals of VA?
2. Holding: Section 25 of the 1789 Judiciary Act was valid and the Court can review the federal constitutional decisions of a state’s highest court.
3. Story’s Argument was grounded in 3 rationales
i. Article III- grants the Court appellate jurisdiction over all cases arising under the Constitution that grant must include those cases that arise from the state courts. The failure of Art. III to distinguish between constitutional cases originating in fed. Court and state court indicates that the Court has appellate review over constitutional cases coming from state courts
ii. No state sovereignty over constitutional interpretation- The union is a charter of government for a single nation and the Constitution abrogates state sovereignty in a number of important ways and the Supremacy clause clearly indicates that state judges are bound by the Constitution.
iii. Need for uniformity- A system in which each state’s highest court coulf interpret the Constitution differently would provide 50 different Constitutions.
C. The Adequate and Independent State Grounds Doctrine
· Sometimes S.C. adheres to principle that it will not review judgments of state courts that rest on adequate and independent state grounds
2. Michigan v. Long
1. Facts: During routine traffic stop, sheriff deputies searched Long’s car and found a large quantity of MJ.
2. Holding: The court presumes that in state court cases presenting both federal and state law issues, the state court relied on fed. Law for its decision unless the state court includes in its opinion a plain statement of its reliance on state law as the sole ground for its decision.
3. Bush v. Gore
1. Facts: Court voided FL S.C.’s order of manual recount in the 2000 pres. election
2. Rule: Art II. “Each state shall appoint, in such manner as the legislature thereof may direct, electors for President and Vice President.”
3. Holding: The FL S.C.’s interpretation of the Fl election laws distorted them beyond what a fair reading required in violation of Article II.
1. Legislative Power in FL is subject to judicial review pursuant to Article V of the FL constitution and Article II of the Federal Constitution doesn’t free the state legislature from the constraints in the state constitution
2. Fl. S. C. concluded that counting every legal vote was the overwhelming concern of the FL legislature when it enacted the State’s Election Code
3. A State may organize itself as it sees fit and doesn’t need us to protect one org
implement that meaning
F. The Uneven Nature – Judicial Review: Tiered Review & the Unequal Status of Cons. Claims
1. Minimal Scrutiny: The Constitutional “Default” Level of Review
1. Rational Basis
a. challenger has the burden of proving that the law, regulation, or executive act is not rationally related to a legitimate government objective
b. deferential to the political branches of government
i. courts generally accept any hypothetical objective as the gov’s goal
2. Strict Scrutiny
a. Defender of government action has the burden of proving that the law is necessary to accomplish a compelling government objective
i. Classification based on race
3. Intermediate Scrutiny
a. Defender of government action has the burden of proving that the actual purpose of the statute or action is important and that the statute or action is substantially related to the accomplishment of that actual purpose
i. Classification based on sex
II. Doctrines Limiting the Scope of Judicial Review
A. Direct Political Controls: Amendments, Appointment, and Impeachment
1. Amendment- constitution is not easily amended
a. Noncontemporaneaous Ratification
i. Most amendment are ratified shortly after their proposal and stipulate a time period
ii. Glaring Exception- 25th Amendment which bars increases in congressional pay until a general election has first occurred
iii. Court has hinted that ratification by a product of contemporaneous action be implied.
b. Convention Calls
i. Never had 2/3 of the states unite in a call for such a convention
c. Rescission Before Ratification
i. Political question- congress decides whether to give effect to a purported rescission
d. “Unconstitutional” Amendments
i. Article V. forbids elimination of the state’s elimination the state’s equal representation in the senate except by consent of an affected state
1. Presidents try to influence the Court’s constitutional decisions by their power to appoint justives
1. Article I section 3 gives the Senate the sole power to try all impeachments and stipulates that conviction and removal from office occurs if 2/3 of the senators present and voting concur in the House’s articles of impeachment
B. Congressional Power to Control the Jurisdiction of the Federal Courts
· Article III gives Congress considerable but not unlimited discretion to control the jurisdiction of the fed. Courts