Constitutional Law Outline
Fall 2011 – Professor Day
Judicial Review
Standards of Judicial Review
The Political Question Doctrine
Modes of Interpretation
Preemption
What are the main issues dealing with judicial review?
(1) Existence
(2) Exclusivity
(3) Extent
THE EXISTENCE OF JUDICAL REVIEW
Evaluative Criteria Marbury Madison(no JR) ______________
Textualism There is no text
Historical There is no history Federalist #78 (Checks & Balances)
Precedent There is no precedent
Policy Democratically inconsistent Check & Balance
General Notes on Judicial Review:
The Constitution contains no provision allowing the Supreme Court the power to review the constitutionality of Congressional acts.
The ability to invalidate state laws and federal laws as unconstitutional comes exclusively from Marbury v Madison.
The idea of judicial review was well known at the time the Constitution was ratified.
There was no consensus that the Court should be able to review the acts of Congress, but there was certainly no consensus that the Court could not.
The question was undecided until Marbury.
Although Marbury legitimated judicial review, the Supreme Court has generally used the power sparingly (except in the time of judicial activism from 1887-1937).
STANDARDS OF JUDICIAL REVIEW
There are three key standards of review that reappear constantly throughout Constitutional Law.
When a court reviews the constitutionality of government action, it is likely to be choosing from among one of these three standards of review:
(1) the rational basis standard;
(2) the strict scrutiny standard; and
(3) the middle-level review standard.
(1) Rational Basis
Of the three standards, the easiest one to satisfy is the “rational basis” standard.
When the court applies this “rational basis” standard, the court will uphold the governmental action so long as two requirements are met:
(1) Legitimate governmental objectives
First, the government must be pursuing a legitimate governmental objective
This is a very broad concept – practically any type of health, safety or “general welfare” goal will be found to be “legitimate.”
(2) Rational relation
Second, there has to be a “minimally rational relation” between the means chosen by the government and the state objective.
This requirement, too, is extremely easy to satisfy
Only if the government has acted in a completely “arbitrary and irrational” way will this rational link between means and end not be found.
See Karinger
(2) Strict Scrutiny
At the other end of the spectrum, the standard that is hardest to satisfy is the “strict scrutiny” standard of review.
This standard will only be satisfied if the governmental act satisfies two very tough requirements:
(1) Compelling governmental objective
First, the objective being pursued by the government must be “compelling” (not just “legitimate,” as for the “rational basis” standard); and
(2) Necessary means
Second, the means chosen by the government must be “necessary” to achieve that compelling end.
In other words, the “fit” between the means and the end must be extremely tight.
It is not enough that there is a “rational relation” between the means and the end, which is enough under the “rational basis” standard.
No less restrictive alternatives
In practice, this requirement that the means be “necessary” means that there must not be any less restrictive means that would accomplish the government’s objective just as well.
(3) Middle-level review
In between these two review standards is so-called “middle-level” review.
(1) “Important” objective
Here, the governmental objective has to be “important” (half way between “legitimate” and “compelling”).
(2) “Substantially related” means
And, the means chosen by the government must be “substantially related” to the important government objective. (This “substantially related” standard is half way between “rationally related” and “necessary”).
Consequences of choice
The court’s choice of one of these standards of review has two important consequences
(1) Burden of persuasion
First, the choice will make a big difference as to who has the burden of persuasion.
(1) Rational basis
Where the governmental action is subject to the “rational basis” standard, the individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional.
(2) Strict scrutiny
By contrast, if the court applies “strict scrutiny,” then the governmental body whose act is being attacked has the burden of persuading the court that its action is constitutional.
(3) Middle-level review
Where “middle level” scrutiny is used, it is not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the government.
(2) Effect on outcome
Second, the choice of review standard has a very powerful effect on the actual outcome.
Where the “rational basis” standard is applied, the governmental action will almost always be upheld.
Where “strict scrutiny” is used, the governmental action will almost always be struck down.
(For instance, the Supreme Court applies strict scrutiny to any classification based on race, and has upheld only one such strictly scrutinized racial classification in the last 50 years.)
Where middle-level scrutiny is used, there is roughly a 50-50 chance that the governmental action will be struck down.
Exam Tip:
So when you are writing an exam answer, you have to concentrate exceptionally hard on choosing the correct standard of review.
Once you’ve determined that a particular standard would be applied, then you might as well go further and make a prediction about the outcome: if you’ve decided that “rational basis” applies, you might write something like, “Therefore, the court will almost certainly uphold the governmental action.”
If you have chosen strict scrutiny, you should write something like, “Therefore, the governmental action is very likely to be struck down.”
When used
Here is a quick overview of the entire body of Constitutional Law, to see where each of these review standards gets used:
(1) Rational basis
Here are the main places where the “rational basis” standard is applied (and therefore, the places where it’s very hard for the person attacking the governmental action to get it struck down on constitutional grounds):
(1) Dormant Commerce Clause
First, the “rational basis” test is the main test to determine whether a state regulation that affects interstate commerce violates the “Dormant Commerce Clause”
The state regulation has to pursue a legitimate state end, and be rationally related to that end.
(But there is a second test that will be looked at in greater detail later: the state’s interest in enforcing its regulation must also outweigh any burden imposed on interstate commerce, and any discrimination against interstate commerce.)
(2) Substantive due process
Next comes substantive due process
So long as no “fundamental right” is affected, the test for determining whether a governmental act violates substantive due process is, again, “rational basis.”
In other words, if the state is pursuing a legitimate objective, and using means that are rationally related to that objective, the state will not be found to have violated the substantive Due Process Clause.
Therefore, the vast bulk of economic regulations (since
” regulation.
THE SUPREME COURT’S AUTHORITY AND THE FEDERAL JUDICIAL POWER
The Marbury principle
Under Marbury v. Madison, it is the Supreme Court, not Congress, which has the authority and duty to declare a congressional statute unconstitutional if the Court thinks it violates the Constitution.
Supreme Court review of state court decision
The Supreme Court may review state court opinions, but only to the extent that the decision was decided based on federal law.
(1) “Independent and adequate state grounds”
Even if there is a federal question in the state court case, the Supreme Court may not review the case if there is an “independent and adequate” state ground for the state court’s decision.
That is, if the same result would be reached even had the state court made a different decision on the federal question; the Supreme Court may not decide the case.
This is because its opinion would in effect be an “advisory” one.
(2) Violations of state and federal constitutions:
If a state action violates the same clause of both state and federal constitutions (e.g., the Equal Protection Clause of each), the state court decision may or may not be based on an “independent” state ground.
If the state court is saying, “This state action would violate our state constitution whether or not it violated the federal constitution,” that’s “independent.”
But if the state court is saying, “Based on our reading of the constitutional provision (which we think has the same meaning under both the state and federal constitutions), this state action violates both constitutions,” this is not “independent,” so the Supreme Court may review the state court decision.
(3) Review limited to decisions of highest state court
Federal statutes limit Supreme Court review to decisions of the highest state court available.
However, this does not mean that the top-ranking state court must have ruled on the merits of the case in order for the Supreme Court to review it.
All that is required is that the case be heard by the highest state court available to the petitioner.
Example:
A state trial court finds a particular state statute to be valid under the federal Equal Protection Clause.
An intermediate appellate court in the state affirms; the highest state court refuses to hear an appeal from the affirmance.
As a matter of both the federal judicial power and federal statutes, the Supreme Court may hear this case, because the intermediate appellate court was the highest court “available” to the petitioner.)
(4) Federal judicial power
Article III, Section 2 sets out the federal judicial power.
This includes, among other things:
(a) cases arising under the Constitution or the “laws of the U.S.” (I.e., cases posing a “federal question”);
(b) cases of admiralty;
(c) cases between two or more states;
(d) cases between citizens of different states; and
(e) cases between a state or its citizens and a foreign country or foreign citizen.