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Constitutional Law I
University of Illinois School of Law
Pfander, James E.

Judicial Review
Review of Executive & Legislative Branches
Marbury v. Madison
Rejects the Congressional expansion of the Supreme Court’s original jurisdiction
Asserts power of the Supreme Court to oversee the Constitutionality of BOTH legislature and executive branches
Rests on:
Tripartite structure of the Government
“How else can we guarantee that Congress acts within the Constitution?”
Article III, § 2 – “arising under the Constitution”
But this may just mean that the Court can hear state law issues
Supremacy Clause
Laws made “in pursuance” of the Constitution will be the supreme law
But everyone takes oath to uphold the Constitution
Limits on Judicial Review
Review of state court decisions
Martin v. Hunter’s Lessee
Virginia Court of Appeals “declined” to comply with the Supreme Court’s mandate in a case that turned on the supremacy of a treaty versus a state action
Court upheld the appellate review of state decisions involving federal law in the Supreme Court
Constitution creates Supreme Court and gives it appellate jurisdiction, allows Congress to create inferior federal courts
Since Congress could have declined to create such courts, the Constitution must have contemplated the Supreme Court’s power to review state decisions as part of its appellate jurisdiction
Adequate and Independent Grounds Doctrine: Court cannot issue advisory opinions, so where its analysis of federal law would be moot because the decision below has sufficient grounding in the state court’s interpretation of state law (which the Supreme Court cannot review), the Supreme Court cannot hear the case.
But sometimes it can. For example:
If the enforcement of the federal right rests on the state court’s interpretation of its own law (Indiana ex rel. Anderson v. Brand)
If it is not absolutely clear from the state opinion that the decision rests on independent state grounds (Michigan v. Long)
Before this case, the Supreme Court remanded unclear cases for clarification.
Federal Appellate Power
Court’s original jurisdiction is set by Article III, Congress cannot change (Marbury)
But appellate review can be limited by “Exceptions Clause” of Art. III
Ex parte McCardle
After argument in the Court, but before decision, law relied on for habeas appeal was repealed; Court dismissed suit
Apparently accepted literal reading of the exceptions clause, but explicitly retained jurisdiction over habeas peti

e to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various departments of one question
Court held that enforcement of state laws on reapportionment was not a political question (as an equal protection issue)
Court is split on whether political gerrymandering charges are justiciable – casebook says yes
Luther v. Borden
Question of whether a government meets the “republican form of government” clause is political question
Powell v. McCormack
House refuses to seat – Art 1 § 5 allows House to “judge qualifications” of its members, but Court says that it does not allow House to add qualifications
Not a political question, because “judge qualifications” is not a commitment to the House of the issue of what those qualifications should actually be.
Nixon v. US
Federal judge impeached, appeals procedure
Political question, because Constitution gives Senate the sole power to try impeachments