JUDICIAL REVIEWJUDICIAL REVIEW

Power of Supreme Court to determine Power of Supreme Court to determine constitutionality of acts of Congress, constitutionality of acts of Congress, executive, or a state constitution under executive, or a state constitution under Constitution of the United StatesConstitution of the United States

ARTICLE IIIARTICLE III

Judicial power—original and appellate Judicial power—original and appellate jurisdiction; law and equityjurisdiction; law and equity

Congress’s power over federal courts Congress’s power over federal courts (organization, appellate jurisdiction, (organization, appellate jurisdiction, budget, impeachment)budget, impeachment)

President’s power over federal courts President’s power over federal courts (appointment, enforcement)(appointment, enforcement)

First Congress Under United States First Congress Under United States ConstitutionConstitution

Judiciary Act, 1789Judiciary Act, 1789

Organizes judiciary: Chief Justice plus 5 Associate Organizes judiciary: Chief Justice plus 5 Associate Justices; 3 circuit (appeals) courts, 13 district Justices; 3 circuit (appeals) courts, 13 district (trial) courts (one in each state). Justices sit as (trial) courts (one in each state). Justices sit as circuit court judges.circuit court judges.

Gives Supreme Court original jurisdiction to issue Gives Supreme Court original jurisdiction to issue writs of mandamus (orders instructing writs of mandamus (orders instructing government officials to undertake official acts)government officials to undertake official acts)

Supreme Court before John Supreme Court before John MarshallMarshall

Three Chief Justices (Jay, Rutledge, Three Chief Justices (Jay, Rutledge, Ellsworth)Ellsworth)

SeriatimSeriatim opinions opinions

Perceived as weakest branchPerceived as weakest branch

Constitutional Convention on Constitutional Convention on Judicial ReviewJudicial Review

Madison’s notes: Madison’s notes:

9 delegates supported judicial review9 delegates supported judicial review2 delegates opposed judicial review2 delegates opposed judicial review44 delegates expressed no opinion44 delegates expressed no opinion1 argued Supreme Court should strike 1 argued Supreme Court should strike

down “unjust” national or state down “unjust” national or state legislation (James Wilson)legislation (James Wilson)

Federalist #78Federalist #78

Written by HamiltonWritten by Hamilton

Argues judicial review is “essential” but also Argues judicial review is “essential” but also “fragile”“fragile”

Judiciary has no influence over “sword” or Judiciary has no influence over “sword” or “purse,” no direction over society, can take “purse,” no direction over society, can take “no active resolution whatever”. . .“no active resolution whatever”. . .

Judicial Review--context Judicial Review--context

Roots in 17Roots in 17thth Century English law Century English law

Used by state courts to interpret state Used by state courts to interpret state constitutionsconstitutions

Exercised at least five times by U.S. Supreme Exercised at least five times by U.S. Supreme Court before 1803 (S. Snowiss, Court before 1803 (S. Snowiss, Judicial Review Judicial Review & the Law of the Constitution (1990)& the Law of the Constitution (1990)

Election of 1800Election of 1800

Opponents of Federalists (Jeffersonian Opponents of Federalists (Jeffersonian Republicans) emboldened by Alien and Sedition Republicans) emboldened by Alien and Sedition Acts.Acts.

Federalist newspapers: election of Jefferson would Federalist newspapers: election of Jefferson would cause "teaching of murder robbery, rape, cause "teaching of murder robbery, rape, adultery and incest". adultery and incest".

Electoral College tie sends election to House; Electoral College tie sends election to House; Jefferson wins after 36 votesJefferson wins after 36 votes

Federalist lame-duck response to Federalist lame-duck response to election of 1800election of 1800

BEFORE MARCH 4, 1801BEFORE MARCH 4, 1801

Adams appoints John Marshall Court Chief Justice of Adams appoints John Marshall Court Chief Justice of United StatesUnited States

Judiciary Act of 1801 creates 6 circuit courts (eliminating Judiciary Act of 1801 creates 6 circuit courts (eliminating hated circuit-riding) and 16 new judgeships. Reduces hated circuit-riding) and 16 new judgeships. Reduces size of Supreme Court by 1 to deprive Jefferson of one size of Supreme Court by 1 to deprive Jefferson of one appointmentappointment

Organic Act for District of Columbia creates 3 new Organic Act for District of Columbia creates 3 new justices of the peacejustices of the peace

John MarshallJohn Marshall

Served 1801-1835Served 1801-1835

Eliminated seriatim opinion-writingEliminated seriatim opinion-writing

Exercised personal power of Exercised personal power of persuasion over other justicespersuasion over other justices

Republicans Push Back. . .Republicans Push Back. . .

1802: Congress repeals Judiciary Act of 1801, 1802: Congress repeals Judiciary Act of 1801, restoring circuit-riding duties of Supreme Court restoring circuit-riding duties of Supreme Court and eliminating 16 Federalist judgesand eliminating 16 Federalist judges

1802: Suspends the term of the Supreme Court, 1802: Suspends the term of the Supreme Court, fearing constitutional challenge to validity of fearing constitutional challenge to validity of repeal act (repeal act (Stuart v. LairdStuart v. Laird))

Public attention riveted on Public attention riveted on Stuart v. LairdStuart v. Laird. . Marbury v. MadisonMarbury v. Madison lurking in background lurking in background

Facts behind Facts behind Marbury v. MadisonMarbury v. Madison

Outgoing President Adams signed justice-of-peace Outgoing President Adams signed justice-of-peace commission for William Marburycommission for William Marbury

Secretary of State John Marshall sealed and told Secretary of State John Marshall sealed and told nephew to deliver.nephew to deliver.

Nephew failed to deliver before Jefferson took Nephew failed to deliver before Jefferson took office.office.

Jefferson instructed Secretary of State not to Jefferson instructed Secretary of State not to deliver.deliver.

Marbury and others use Section 13 of Judiciary Act of 1789 to file suit in United States Supreme Court. Ask for writ of mandamus to issue to Madison, ordering him to deliver commissions.

Trial (original jurisdiction)Trial (original jurisdiction)

Madison refuses to appearMadison refuses to appear

Only government witness is Marshall’s Only government witness is Marshall’s nephew!nephew!

No appeal from Supreme Court sitting as No appeal from Supreme Court sitting as trial courttrial court

Marshall’s dilemmaMarshall’s dilemma

If Court issues mandamus, Jefferson will If Court issues mandamus, Jefferson will ignore it, weakening the authority of the ignore it, weakening the authority of the courts. courts.

If Court does not issue mandamus, If Court does not issue mandamus, politicians and press will conclude it acted politicians and press will conclude it acted out of fear. out of fear.

Marshall’s resolutionMarshall’s resolution

Marbury has legal right to commission.Marbury has legal right to commission.

Denying commission is illegal.Denying commission is illegal.

BUTBUT

Constitution limits Congress (and executive and states).Constitution limits Congress (and executive and states).

All acts contrary to Constitution are not law (unconstitutional).All acts contrary to Constitution are not law (unconstitutional).

Section 13 of Judiciary Act or 1789 is unconstitutional because Section 13 of Judiciary Act or 1789 is unconstitutional because Congress cannot give Supreme Court appellate jurisdiction.Congress cannot give Supreme Court appellate jurisdiction.

THEORY OF JUDICIAL REVIEWTHEORY OF JUDICIAL REVIEW

1.1. The people exercised sovereignty when adopting Constitution.The people exercised sovereignty when adopting Constitution.

2.2. The Constitution is a fundamental, enduring law.The Constitution is a fundamental, enduring law.

3.3. Statutes, executive acts, and acts of states are lesser laws Statutes, executive acts, and acts of states are lesser laws reflecting temporary, fleeting views.reflecting temporary, fleeting views.

4.4. Fleeting laws and acts (even those reflecting majorities) that Fleeting laws and acts (even those reflecting majorities) that conflict with fundamental law must be disregarded.conflict with fundamental law must be disregarded.

5.5. The Supreme Court is in the best position to interpret and The Supreme Court is in the best position to interpret and preserve the Constitution.preserve the Constitution.

Arguments against judicial reviewArguments against judicial review

Eakin v. Raub Eakin v. Raub (Pennsylvania, 1825) (see (Pennsylvania, 1825) (see WTP text)WTP text)

BrutusBrutus

Decisions not enforceableDecisions not enforceable

Judicial Review in PracticeJudicial Review in Practice

People accept it but disagree about how People accept it but disagree about how exercised exercised

Big “C” Constitution v. small “c” constitution Big “C” Constitution v. small “c” constitution (Montesquieu) as limit on Court’s power(Montesquieu) as limit on Court’s power

Default return to seriatim opinions today?Default return to seriatim opinions today?

Major casesMajor cases 1819 1819 McCulloch McCulloch v.v. MarylandMaryland upheld the right of Congress to create a Bank of the United States, ruling that it was a upheld the right of Congress to create a Bank of the United States, ruling that it was a

power implied but not enumerated by the Constitution. power implied but not enumerated by the Constitution. 1824 1824 Gibbons Gibbons v.v. Ogden Ogden defined broadly Congress's right to regulate commerce.defined broadly Congress's right to regulate commerce. 1857 1857 Dred Scott Dred Scott v.v. SandfordSandford was a highly controversial case that intensified the national debate over slavery. Chief was a highly controversial case that intensified the national debate over slavery. Chief

Justice Taney held blacks were not citizens and therefore could not sue in federal court. Taney.Justice Taney held blacks were not citizens and therefore could not sue in federal court. Taney. 1896 1896 Plessy Plessy v.v. FergusonFerguson “equal but separate accommodations” for blacks on railroad cars did not violate the “equal “equal but separate accommodations” for blacks on railroad cars did not violate the “equal

protection under the laws” clause of the 14th Amendmentprotection under the laws” clause of the 14th Amendment 1954 1954 Brown Brown v.v. Board of Education of TopekaBoard of Education of Topeka invalidated racial segregation in schools and led to the unraveling of invalidated racial segregation in schools and led to the unraveling of

de jure segregation in all areas of public lifede jure segregation in all areas of public life 1963 1963 Gideon Gideon v.v. Wainwright Wainwright guaranteed a defendant's right to legal counsel. guaranteed a defendant's right to legal counsel. 1964 1964 New York Times New York Times v.v. Sullivan Sullivan extended the protection offered the press by the First Amendment. extended the protection offered the press by the First Amendment. 1966 1966 Miranda Miranda v.v. Arizona Arizona Criminal suspects must be warned of their rights before they are questioned by police. Criminal suspects must be warned of their rights before they are questioned by police. 1973 1973 Roe Roe v.v. WadeWade legalized early-term abortions. legalized early-term abortions. 1978 1978 Regents of the University of California Regents of the University of California v.v. BakkeBakke imposed limitations on affirmative action to ensure that imposed limitations on affirmative action to ensure that

providing greater opportunities for minorities did not come at the expense of the rights of the majority.providing greater opportunities for minorities did not come at the expense of the rights of the majority.