THE JUDICIARY
POWER OF JUDICIAL REVIEW
I. Marbury v. Madison (1803)
A. In his final days in office, President Adams attempted to fill government posts with Federalists. Marbury was nominated to be a Justice of the Peace for the District of Columbia. The Senate advised and consented, the President signed the commission, and the Secretary of State affixed the seal of the United States. The commission was not delivered before Adams left office. When Jefferson became President, he refused to deliver such commissions, leading Marbury and others to petition the Supreme Court for writs of mandamus to Secretary of State Madison. The Judiciary Act of 1789 authorized the judicial courts to “issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the U.S.”. This clearly applied to the Secretary of State. However, Article III of the Constitution provided original jurisdiction to the Supreme Court only in cases affecting ambassadors, other public ministers and consuls, and where a state is a party. In all other cases, the Supreme Court has appellate jurisdiction. If Congress was allowed to redistribute this jurisdiction, as under the Judiciary Act of 1789, then Article III would be form without substance. To enable the Supreme Court to issue a writ of mandamus in such cases, therefore, would be an unconstitutional exercise of original jurisdiction. The case was dismissed for lack of jurisdiction and the law was declared unconstitutional.
B. “Popular Sovereignty” is Marshall’s reason for why the Constitution is superior
1. “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.”
2. “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”
C. “Case and controversy” of Article III à Judges must decide on cases that come before them à Judges must apply laws à Judges are allowed to interpret/expound upon laws
1. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” (NOWHERE DOES IT SAY “EXCLUSIVE PROVINCE AND DUTY”)
D. Holding versus Dicta
1. Holding = “Section 13 of the Judiciary Act of 1789 conflicts with Article 3 of the U.S. Constitution. Since the Constitution is superior, Section 13 is unconstitutional.”
2. Dicta – The Supreme Court has the power to review acts of Congress.
E. Opinions on Judicial Review Over Acts of Congress
1. Constitutional Convention – Council of Revision proposal would have had justices join with president to veto legislation was rejected because “that point will come before judges in their proper character.”
2. Federalist No. 78 (Hamilton) – The courts are the intermediary between the Congress and the people, meant to keep the former within its limited authority. When a statute conflicts with the constitution, judges should be guided by the latter, as it is fundamental law. However, judges should never exercise their “will”, only their “judgment”, or else the consequence would be unelected judges substituting their preferences in place of the preferences of elected officials.
F. Opinions on Judicial Power Over the President
1. Jefferson letter to Abigail Adams – Explaining pardons of Republicans’ convictions under the Sedition Acts. “Nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them.” Both the Executive and the Judiciary interpret the Constitution in their own sphere.
2. Andrew Jackson – Shortly before veto of the bank recharter bill, “John Marshall has made his decision. Now let him enforce it.”
3. Lincoln speech during Senate campaign versus Douglas – In response to Dred Scott, Lincoln promises not to resort to mob violence to oppose the decision, but rather to work within the government to reverse it.
4. Lincoln’s first inaugural – If the people lay down because of Supreme Court decisions, they will have “ceased to be their own rulers” and will have abdicated their power to “an eminent tribunal”.
5. FDR letter to Cong. Hill – Urging the latter to pass a New Deal bill and allow the “court, in an orderly fashion, to decide the ultimate question of constitutionality.”
II. Cooper v. Aaron (1958)
A. Following the Br
the Constitution gives power to another branch, either directly or through something like the “guarantee clause”, or because disagreement between branches would cause the US embarrassment), because there is no judicially manageable standard to apply, or because a decision would require the exercise of nonjudicial discretion. This case did not present any of these issues – it was an issue of “equal protection”. Where the State is acting in a way inconsistent with the US Constitution, it is the duty of the Supreme Court as the ultimate interpreter of the constitution.
D. Powell v. McCormack (1969)
The Supreme Court found a controversy between a member of the House and the Speaker, regarding whether the Speaker and the House itself had the sole authority to judge the qualifications of its members, justiciable because the Speaker was trying to add additional qualifications to those set out in the Constitution for members of the House.
E. Goldwater v. Carter (1979)
The Court holds a suit brought by a Senator against the President, regarding whether the President had the power to terminate treaties without the Senate’s consent, non-justiciable because foreign relations are an executive privilege.
F. Nixon v. U.S. (1993)
A federal judge convicted of several crimes claims that his subsequent impeachment by the Senate was unconstitutional because only a committee of the Senate received testimony. A majority of the Court holds that the issue is non-justiciable because the Constitution gives “sole” power over impeachment to the Senate (sole is very rarely used in the Constitution), because the definition of the word “try” eludes a judicially manageable standard, and because the Senate followed the mandates of Article I, Section III, Clause 6. Several members concur but state that the Senate’s power over impeachment might be justiciable in some situations if the process undermines the justice of the result.