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Constitutional Law I
Wayne State University Law School
Rothchild, John A.


Judicial Review:

The judiciary act of 1789 ~ this act created lower federal courts as permitted by the constitution, but did not give them general jurisdiction in civil cases arising under federal law. Problem in Madison is section 13 of this act… Congress here granted the Supreme court the power to issue writs of mandamus, which is a right of original jurisdiction not recognized in the Constitution.

Judicial Review: Marbury v. Madison

Facts: Marbury and others were appointed as justices, their formal commissions were signed but not delivered. President Jefferson told Madison to withhold P’s commissions. P brought a writ of mandamus directly to the Supreme Court (under the act of 1789) against Madison, then secretary of state. (writ of mandamus is a summons given to a public official of the U.S.)

Issue: is the Supreme Court empowered to review acts of congress and void those that it finds “repugnant to the constitution”? YES!

Holding: P’s action was discharged because the Court does not have original jurisdiction, thus section 13 of the judiciary act is unconstitutional. The court reasoned that it was allowed to make this decision because judicial power extends to all cases arising under the constitution and the laws of the United States.

Important: The Court shall not decide a Constitutional issue if it can be decided on a non-constitutional question. However, it was allowable in Marbury because deciding the Constitutional issue first involved the merits of the case instead of jurisdiction which was the bigger issue*

In Cooper v. Aaron the Court reaffirmed that judicial review was fully constitutional. Prof. Discusses how most cases could however be decided either way involving constitutional issues.

Bush v. Gore: modern case involving the Court’s power of Judicial Review:

Facts: The court ordered a manual recount of ballots cast in the 2000 Florida presidential election because some of the machines did not record any selection for president. The Court held that the manual recount was allowed because the deadline for counting ballots had lapsed and remanding the case to lower Florida court for a constitutionally valid count would not be appropriate.

Dissent: the dissent believed the court should not have taken case nor ordered a Florida recount. According to the dissent, there was no fundament

Limitations on judicial power and review:

Advisory opinions: The court itself has imposed certain limits on the exercise of Federal jurisdiction no avoid nonessential interpretation of the Constitution. Thus no advisory opinions!

cases and controversies: the Constitution limits jurisdiction of all federal courts to “cases and controversies” requiring federal courts to deal only with real and substantial disputes.

STANDING: the plaintiff must have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon the court so largely depends for illumination of difficult constitutional issues. Personal stake must be a distinct palpable injury and not predicated on an injury that is common to all members of the public.


present and clearly identifiable injury
injury must have a fairly traceable causal connection