Judicial Review
I. Introduction
Judicial Review has come to be the power of the Supreme Court and the federal judiciary to consider and overturn any congressional and state legislation derived inconsistent with the Constitution, Bill of Rights, or Federal Law.
A. Sources of the power of judicial review (pp. 1-15)
Marbury v. Madison, (1803), pp. 3-10
Opinion by: Chief Justice Marshall
Procedural History: Marbury sued for writ of mandamus, demanding a public official to do something. Began in the Supreme Court.
Facts: At the close of his administration, John Adams made last-minute judicial appointments, including appointing Marbury as a justice of peace. The appointments were not delivered on time, however, and the Jefferson administration refused to honor them. Marbury asked the Supreme Court to make Jefferson’s Secretary of State, James Madison, honor the appointments. Marshall was Adam’s Secretary of State.
Argument: Marbury is relying on § 13 of the Judiciary Act of 1789, which says the Supreme Court has power to issue Writ of Mandamus.
Issues: According to the court,
(1) Does Marbury have a right to his commission as a justice of peace?
(2) If so, does he have a legal remedy for the violation of that right?
(3) If so, is the correct remedy a writ of mandamus by the Supreme Court ordering his commission?
Holding:
(1) Yes, he has a right to the commission.
(2) Yes, there is a legal remedy.
(3) No, the court cannot issue writ of mandamus.
Reasoning:
(1) Marbury has a right to his commission, because his appointment was effected when Adams signed it and his commission was effected when the Secretary of State sealed it. Although, Marshall does not say what the authority is to say a commission is complete.
(2) Marbury’s right to his commission is a legal right rather than a political right, and therefore he is entitled to a legal remedy. Normally, a writ of mandamus would be appropriate. If an act affects an individual then there is a legal right. It is the court who will tell which type.
(3) The Supreme Court, however, may not issue a writ of mandamus directing the President to deliver Marbury’s commission. Although § 13 of the Judiciary Act of 1789 authorizes the Supreme Court to issue writs of mandamus to executive officers, this conflicts with the Constitution’s enumeration of the Court’s original jurisdiction (Art. III., § 2), and thus the statute is void.
Judgment: No writ of mandamus for Marbury. The remedy that he sought, through the law, was inconsistent with the constitution.
Significance: This case establishes the power of judicial review. Nothing in the Constitution establishes Judicial Review. Judicial Review is Judge-made. When there is a conflict the courts will decide if there is a conflict and if there is then the constitution trumps.
B. Legitimacy of Judicial review (pp. 15-21)
Judicial Review is undemocratic in two ways:
1. Congress composed of people we elected, passes a law, which is then invalidated by 12 people that are unelected and are tenured for life. No recourse for what they do.
2. Counter majoritarian difficulty – Through Judicial Review, courts can suppress the will of a current majority, because presumably the legislature that made law is the will of the current majority. The will of the past old majority overrides the will of the current majority.
The constitution isn’t meant to be a majority will. It’s for the protection of those whom are minorities. Countermajoritarian is a good thing.
C. Authoritativeness of Supreme Court Decisions (pp. 21-31)
Why would the court be the appropriate branch to decide whether a law is constitutional or not?
Expertise
Not elected – purposely removed from the political process, don’t have to worry about decisions being unpopular. Can make the hard decisions.
Judges have a neutral position naturally.
Courts are bound by precedent. C
mbarrassment due to conflicting pronouncements from various branches
o Don’t want to undermine decision already made by legislature
* In notes following Baker v. Carr
· Powell v. McCormack p. 39
o Facts: The case arose from a challenge to the refusal of the House in 1967 to seat Rep. Powell based upon a finding that Powell took House funds and reported false information to a House committee of foreign expenditures.
o Issue: Whether the House or the Supreme Court has the right to decide Powell’s seating.
§ McCormack argued that:
· (1) Article I, §5 states, “Each House shall be the judge of the qualifications of its own members,” constitutes a textual commitment of the issue to another branch. And,
· (2) Judicial resolution of the issue would yield a “potentially embarrassing confrontation between coordinate branches.”
· (3) Therefore the controversy was nonjusticiable.
§ Powell argued that he met all the formal requirements of age, citizenship, and residence.
§ Chief Justice Warren held:
· (1) Article I, §5 was “at most a ‘textually demonstrable commitment’ to Congress” to judge only the qualifications expressed in the Constitution. Therefore the “political question” doctrine did not bar adjudication of Powell’s claim.
· (2) Alleged conflict that may be caused by adjudication is not reason for the court to avoid their Constitutional responsibility.
· (3) It is the responsibility of the Supreme Court to act as ultimate interpreter of the Constitution.
· Goldwater v. Carter p. 40
o Whether president has authority to terminate a treaty without the participation of the Senate.
o Both are stated in the constitution as a duty. Art. 2 Pres. has power to make treaties with consent of the Senate. Does not state about terminating a treaty.
The constitution is silent on who terminates a treaty. Issue #1 is out.
