I. Judicial Review
1. Nature and Scope of Judicial Review
· Marbury v. Madison(1803) Assertion of Judicial Review Power
o Judicial Review: the court may determine the constitutionality of the acts of other branches of government.
o The court could have decided that Judicial Review wasn’t authorized by the Constitution because
Judicial review is not expressly provided for in the Constitution
Judicial review is inconsistent with electorally accountable democracy in that it unelected and thus unaccountable federal judges to invalidate laws enacted by Congress and actions taken by the President
Judicial review is inconsistent with the fundamental constitutional principal of separation of powers and equality of the branches in that it would make the judicial branch superior to the other branches.
The court held, however, that judicial review was authorized by the Constitution. Reasons:
It is the constitutional function of the judiciary to interpret and apply the Constitution (“it is emphatically the province and duty of the judicial dept. to say what the law is.”)
§ This does not depend on their ability to enforce the judgment. When the president does not comply with a judicial order (i.e. Nixon), the remedy is impeachment.
The constitution imposes many limitations on the exercise of powers by the federal government, relating both to the what powers are granted to the federal government by the Constitution and to the limitation on governmental power that are designed to protect the individual rights contained in the Bill of Rights and other provisions of the Constitution.
Since the Court is performing the judicial function by judicial review, in the same manner as Congress and the President perform their functions under the Constitution, judicial review is not inconsistent with separation of powers and the equality of the branches.
Principles of Constitutional adjudication applied in Marbury. The Court doesn’t always follow these principles. The Supreme Court can disregard them in a particular case, but the lower courts must follow them.
Where it is possible to do so, a case should be decided on non-constitutional grounds rather than on constitutional grounds.
Where is it possible to do so, a statute should be interpreted so as to avoid a serious question as to its constitutionality.
Where a court cannot avoid deciding a constitutional question, it should base its decision on the narrowest possible constitutional grounds.
§ The court in Citizens United could have interpreted the statute so as to avoid the federal constitutional question (they could have found that the documentary didn’t violate the statute) and could have decided the case on different grounds (e.g. the statute was unconstitutional as applied to non-profit corporations). However, the court made a sweeping decision and held that the 1st Amendment protected the right of corporations and labor unions to use their own funds to support or oppose candidates for public office, and in the process overruling a prior decision, which the Court is typically reluctant to do.
Interpretivism- the judges should confine themselves to enforcing norms that are clearly stated or clearly implicit in the written Constitution (use the original intent of the framers).
Noninterpretivism- courts should go beyond those sets of references and enforce norms that cannot be discovered within the four corners of the document (divided on what particular sources should replace or supplement other sources and on how to justify their use).
· Cooper v. Aaron(1958)
It follows from the holding in Marbury that the interpretation of the 14th Amendment from Brown v. Board of Education is the supreme law of the land.
Four Constitutional Amendments have been enacted overruling Supreme Court decisions:
11th Amendment (overruling Chism)
14th Amendment (overruling Dred Scott)
16th Amendment (income tax)
26th Amendment (giving 18 year olds the right to vote)
· Martin v. Hunter’s Lessee(1816) Review of State Legislation
Holding: as a matter of constitutional structure, the Supreme Court could review a decision of the highest court of a state with respect to a federal question, however the Supreme Court cannot review questions of state law decided by a state court.
· Federal question: a question involving the federal Constitution or laws
· In the American federal system, the U.S. Supreme Court is supreme in the exposition of federal law, and the highest court of each state is supreme in the exposition of the law in that state.
· While states are independent sovereigns, allowing the Supreme Court to review federal questions addressed by state courts is part of the federalist system.
· Limitations on Judicial Power and Review (Justiciability)
· Justiciability: all barriers to judicial review.
Constitutional limitations on judicial review that are imposed by the case or controversy provision of Article III Sect. 2 and
· Adverse parties (case or controversy)
Limitations that have been imposed by the court as a prudential matter.
· Non-assertion of third party rights
· Second part of the political question doctrine
· Advisory Opinions and Executive Revision
o The “case or controversy” requirement bars rendition of advisory opinions because the essential element of “case or controversy” is two parties with adverse legal interests.
o The case or controversy requirement is not a problem with declaratory judgments because there are two parties with adverse legal interests, and the declaratory judgment will determine the rights of the parties with finality.
o The Structure of Standing Doctrine
· Injury in fact
§ A direct, individualized injury to the π. It can be an intangible, non-economic interest, and it may be shared by a large number of people. (See Sierra Club).
· That has a fairly traceable causal connection to the challenged action (causation)
· That is likely to be redressed by a favorable decision (redressibility)
· Allen v. Wright (1984)
o Holding: a private school does not have standing to force the government to comply with the law when the person can show no direct personal injury from the alleged failure of the government to obey the law. African American students attending school in a district under desegregation did not allege and could not show that the granting of tax exemptions to racially segregated private schools impeded the desegregation process in the district.
· They would have to show that there were enough racially segregated private schools receiving tax exemptions in their district to make an appreciable difference in public school desegregation in the district.
· They would also have to show that if the tax exemption were withdrawn, these schools would close or that a sufficiently large number of parents attending these schools would enroll their children in public school.
Sierra Club v. Morton (1972) (p. 1570) Injury in fact
If Disney wants to make a contract to turn a forest into a theme park, the Sierra Club can bring a suit with a π who frequently goes hiking in the forest. The injury need not be economic.
Similarly, an environmental organization making use of the site would have standing, but an environmental organization that was not using the forest would not have standing. An organization can sue on behalf of its members providing that the organization has standing in its own right or that its members have standing in their own right.
THERE IS NO CITIZEN STANDING. Any injury to a citizen resulting from the government’s non-compliance with the law is considered too abstract to constitute injury in fact for standing.
Heckler v. Matthews (1984) (p. 1557) Injury in fact
A male who was denied social security benefits could challenge the gender based classification as violative of equal protection even though the law expressly provided that if the classification was declared invalid, the benefit would be eliminated entirely.
Injury: the discrimination directly traceable to the challenged classification, and if the classification is invalidated, he will no longer be suffering any discrimination
er to Create Standing
o Congress may create statutory rights, violation of which confers standing on a person who suffers injury in fact from that violation.
· In Title VIII of the Civil Rights Act of 1964, Congress created a federal substantive right on the part of all persons to have interracial associations in the housing context. A person suffering injury in fact because of a violation of the statute has standing to sue to enforce it.
Lujan v. Defenders of Wildlife (1992) Public interest is not enough to create standing
o Congress cannot authorize citizen standing with citizens as private attorney-generals suing on behalf of the Untied States.
o A π brining a suit to enforce compliance with the Endangered Species Act must satisfy the requirements for standing: must show that the π is involved with the animal or plant.
Ripeness As it Relates to Standing
o A self imposed limitation on judicial review, designed to prevent unnecessary constitutional adjudication and adjudication of constitutional questions in an abstract posture.
o Ripeness: The court will not anticipate a question of constitutional law prior to the necessity of deciding it or pass upon an issue that may or may not arise sometime in the future.
· These issues generally arise in suits for injunctions and declaratory judgments.
o Ripeness involves a balancing of four considerations:
The sufficiency of the factual record to permit adjudication of the merits of the claim
The hardship to the π in delaying adjudication
The public interest in adjudication of the claim at the present time.
United Public Workers v. Mitchell (1947) Ripeness as it relates to standing
o Holding: an employee who admittedly had violated the Hatch Act and who was threatened with prosecution for doing so had standing to challenge the constitutionality of the law.
· This is an example of clearly threatened injury in fact having a fairly traceable causal connection to the existence of the law that is likely to be redressed by a favorable decision.
· “Chilling effect” standing: the employees who alleged that they wanted to engage in partisan political activity, but refrained from doing so because of the existence of the law and fear of prosecution under it would have standing.
Epperson v. Arkansas (1968) (p. 1581) Clearly threatened injury in fact
o Biology teacher alleged clearly threatened injury in fact having a fairly traceable causal connection to the anti-evolution that would be remedied by a favorable decision declaring the law unconstitutional. She alleged that she violated the law and could be prosecuted for violation, even though prosecutors said they weren’t enforcing the law (that didn’t matter).
Poe v. Ullman (1961)
o Decided as a ripeness case, but now that it is clear that standing is a constitutional requirement, it is best explained as a standing case.
o There was no clearly threatened injury in fact because the πs did not allege that they were refraining from using contraceptives because of the existence and threatened enforcement of the anti-contraceptive law, and the state admitted that the law wasn’t being enforced against pharmacies dispensing contraceptives, so there could be no credible threat of enforcement against a married couple using them.