1.       Nature and Scope of Judicial Review
a.       Origins: The Role of the Judiciary in the Constitutional System
a.       Marbury v. Madison
                                                                             i.             CTs are permitted to order officials to perform duties which they have no discretion but to perform (i.e. ministerial acts), but are clearly required to do under existing law.
1.       Marbury
a.       Appointed by the president – a discretionary act
b.       Confirmed by the senate – a discretionary act
c.       Singed by the secretary of state-a ministerial act
d.       Not delivered by secretary of state – a ministerial act
                                                                                                                                                     i.             Delivery required for him to get the job
                                                                            ii.             The Court cannot order a coordinate branch of government (i.e. Executive or Legislative) to perform an act. The court could never order the president to appoint someone or Congress to affirm someone.
                                                                          iii.             CT in Marbury established the power of the S. CT to review the constitutionality of congressional legislation and strike it down if it deems it unconstitutional
b.       Scope of S. CT power
a.       Congress may limit the S. CT’s appellate jurisdiction
                                                                             i.             Possible limitations
·          Congress may eliminate certain avenues for S. CT review, but NOT all avenues b/c this would eliminate judiciary’s essential role in the constitutional plan
·          Although Congress may eliminate S. CT review of certain cases w/in the fed judicial power, it must permit jurisdiction to remain in some lower federal CT
·          If Congress were to deny all S. CT review of an alleged violation of constitutional rights – or go even further an deny a hearing before any federal judge on such a claim-this would violate due process
a.       Jurisdiction of S. CT.
                                                                             i.             CT has the power to ultimately interpret the Constitution
                                                                            ii.             Has power to strike down legislature b/c “it is emphatically the province of the judiciary to say what the law is.
                                                                           1.             Role of Congress
a.       Congress has extraordinary authority to limit the appellate jurisdiction of the Court.
b.       Congress has power to transfer jurisdiction from one CT to another
c.       Congress does NOT have the power to expand the CT’s OJ b/c this is limited by Constitution
                                                                           2.             CT has discretion on what cases it will hear
a.       Can hear cases coming from a federal appellate CT or a state CT of last resort that deals with a federal Q or over which federal jurisdiction otherwise exists
b.       Limits on Judicial Review: Political Q Doctrine
                                                                           1.             Political Q test:
a.       A textually demonstrable constitutional commitment of the issue to a coordinate political branch; or
b.       A lack of a judicially discoverable and manageable standards for resolving it
c.       Lack of finality and difficulty of fashioning a remedy
·          Another way of saying there’s a problem of judicially manageable standard
                                                                           2.             Red Flags that an issue might be a PQ:
a.       If the CT is asked to make major changes to things that involve go’s
·          But be careful, are things that involve difficult remedies implicating go’s actions that are not political Q’s i.e. busing
b.       Military or foreign affairs Q’s
·          CT’s cannot act quickly enough to determine who to shoot.Â
·          However, answers may come out differently to this issue depending on if:
                                                                                                                                                   1.             The P is looking for prospective relief (injunction) or
1.       Request for injunctive relief against state militia to prevent future incidents like the one that occurred when protestors at Kent State were shot non-justiciable
                                                                                                                                                   2.             Damages
1.       Action for damages for victims of Kent State shootings allowed
                                                                           3.             LOOK AT GILBERTS PAGE 30 FOR THIS
                                                                           4.             Non-Justiciabile: actions the CT will not pursue
a.       Q’s textually assigned to another branch. 6 types:
·          Text of Constitution assigns decisions to another branch
·          Example: Luther v. Borden
1.       US shall guarantee to every State in this Union a Republican form of Gov’t and shall protect each of them Against invasion; and on Application of the Legislature or the Executive (when the Legislature cannot be convened) against domestic Violence
2.       Congress has power to seat state Representative
1.       RI Charter gov’t petition President for troops to defend against the insurrection
2.       Pres agreed to call federal troops in support of Charter gov’t
3.       Congress decides who will be seated, if new gov’t tried to get representative seated Congress could have refused
4.       Charter gov’t real gov’t and CT has no right to decide
·          Lack of judicially manageable standards for answering Q
·          Nixon v. US
1.       Textual Commitment:
1.       Art. I, Section 3, Cl. 6: gives Senate the sole power to try all impeachments
2.       Lack of Judicially manageable standard:
1.       CT can’t figure out how to interpret the word “try”
2.       Senate gets a lot of deference in the particulars of how it “tries” fed judges
s adjudication of generalized grievances
·          May not go to a federal CT and ask it to order another branch of gov’t to obey the law. No specific injury to P and everyone harmed the same
·          No standing as citizen to claim that a federal statute violates Constitution.
a.       Cannot use CT to air your political grievances they do not have power to fix problems with the political policy.
                                                                                                                                                                             i.             Must use legislature and executive branches to change political things you don’t like.
·          Test: P must allege:
·          Direct and immediate personal injury i.e. injury in fact;
·          Must be concrete and particularized.
·          P must show a unique injury different from what everyone suffers.
·          Actual and imminent injury and
·          NOT abstract or conjectural or hypothetical
·          If P’s are suffering a sufficiently concrete injury, 2 or 3 from standing test will not present major impediment to litigation.
·          Fairly traceable to the D’s allegedly unlawful conduct (i.e. causal connection btw the injury and the conduct complained of)
·          Standing hard to get in which you seek injunctive relief against a government official
                                                                                                                                                                             i.             Injunctive relief to prevent police from putting people in choke hold. P has no standing b/c unlikely that he, personally, will be put in choke hold again
·          Pitch claim as an opportunity to compete for benefit, then the causation requirements are easier to demonstrate
                                                                                                                                                                             i.             Affirmative action policy in law school. P has standing b/c this policy denied him opportunity to compete for EVERY seat. Injury is denial of equal treatment
·          Likely that injury will be redressed by the requested relief (tied in with causation above)
·          Likely to follow from a favorable decision.Â
·          If cause is fixed problem will be gone. If relief will not fix problem, causation is tenuous
·          Is there a judicial remedy? Can the CT give you what you want?
Does the remedy require CT acting as legislature or
