JUDICIAL REVIEW

JUDICIAL REVIEW: ULTIMATE CHECK or BALANCED POWER?

Hey P2G, Just before we took our OSR, we were involved in evaluating the Purpose of Judicial Review. This is an important topic as we have recently seen in the news that the Judicial branch is presently having difficulty due to the recent death of Justice Antonin Scalia. Our objectives included:

• To Explain the Purpose of Judicial Review and...
• To Discuss the Landmark Supreme Court Case Marbury v. Madison (1803)

What is this political cartoon implying about the Supreme Court? 

Possible Interpretation: The Supreme Court may hold many different opinions on a subject, but ultimately when they are faced with making a legal ruling, they must offer more than just opinion. Instead the Supreme Court is expected to base their rulings on the supreme law of the land, and that is the Constitution of the United States.

The Supreme Court has many responsibilities, but it was Chief Justice John Marshall that summarized the role of the courts in 1803 below:

“It is emphatically the province and duty of the Judicial Department to say what the law is…If two laws conflict with each other, the Courts must decide on the operation of each.  So, if a law be in opposition to the Constitution… the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

Source: Chief Justice John Marshall, 1803

Interpret John Marshall’s statement, what is he saying about the courts responsibility?

Judicial Review:

Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary, using the constitution as a guide. This is established under Article VI, Section II:

“This constitution…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution, but this was not always clear.

According to the doctrine of Judicial Review the Supreme Court could…

A. invalidate the Presidents constitutional veto power

B. decide that the House of Representatives must be included in the Senate’s legislatively guaranteed planning committees

C. after a ruling declare that discrimination against same sex marriages violates the 14^th amendment to the constitution of the United States

D. uphold the actions of the President to declare war without a congressional declaration of war  

Landmark Case - Marbury vs. Madison (1803)

When the U.S. Constitution was written, there were still lots of questions about the judicial branch. In 1789, shortly after the Constitution was ratified (accepted), Congress passed the Judiciary Act of 1789, which established the federal court system. The act established the office of the Attorney General, several federal courts, original jurisdiction (control) of all cases for the Supreme Court and it also gave the court the power to issue writs of mandamus, that could compel a public official to do their required job.

When President Adams lost the election of 1801 he began signing many commissions for new federal judges in an attempt to help his dying Federalist Party hold onto some sort of political power. These mass appointments became known as the Midnight Judges scandal. Adams Secretary of State, John Marshall was instructed to deliver the commissions; he received one himself as Chief Justice of the Supreme Court. However, because there were so many, some commissions were senate approved, drawn up, and stamped, making them official but were not delivered, including William Marbury’s. President Jefferson finally takes office in March 1801, and learns of Adams’s attempt to fill the courts with Federalists and instructs his Secretary of State James Madison to refuse any undelivered appointments.

If you were Marbury what would you do about not receiving your promised job?

What Did Marbury Do?

Marbury appealed directly to the United States Supreme Court, the highest court in the land to gain his appointment. Based on the Judiciary Act of 1789, he wanted the Supreme Court to issue a writ of mandamus, to force Secretary of State James Madison to give him his job. The Attorney General, Levi Lincoln Sr. suggested that the Supreme Court should not even be hearing the case, and therefore should not issue the writ of mandamus in Marbury’s favor since:

“The judicial power (lower courts) shall [first] extend (hear) …all cases, in law and equity, arising under this Constitution…to controversies to which the United States shall be a party. The Supreme Court shall have appellate (secondary) jurisdiction [only after the lower courts have ruled]”

Source: Article III Section II of the Constitution

Based on all the evidence provided decide whether or not you concur with the Attorney Generals reasoning, that Marbury shouldn’t win the case.  Be sure to provide/cite specific evidence.

What was the courts ruling in Marbury v. Madison?

In a unanimous decision, written by Justice Marshall, the Court stated that Marbury,  had a right to his commission. But it also ruled that the Court had no jurisdiction (or power) in the case and could not force Jefferson and Madison to seat Marbury. The Judiciary Act of 1789 gave the Supreme Court jurisdiction, but the US Constitution did not.  The Court’s first responsibility is to uphold the Constitution. When there is a conflict, the Constitution prevails. This decision also established that the Courts have the power of Judicial Review.

The Supreme Court has often been accused of misusing its power of Judicial Review by being too radical in its interpretation of the Constitution, such as in the Plessy v. Ferguson Case (1896) declaring segregation of races as lawful or in not doing enough to protect American rights. Such as was the case in Clapper v. Amnesty International (2012), allowing the government to conduct spying on Americans without a warrant.

Writing Prompt: Critique the Supreme courts responsibility to the people concerning how Judicial Review is used on our behalf.