HGov: Judicial Review


Judicial_ReviewJudicial review grants the Supreme Court the power to declare acts of Congress, the executive branch, and the states unconstitutional. The Court can overturn laws or government actions that do not comply with the Constitution. This principle is not stated directly in the Constitution, although it is implied in Article III, which outlines the Court’s judicial powers.

Marbury_v_MadisonIt would take the Marbury v. Madison case to make judicial review an accepted principle. The case had its origins in the election of 1800. That year John Adams, the incumbent president and candidate of the Federalist Party, lost to Thomas Jefferson. Just before leaving office, Adams created dozens of new federal judgeships and appointed Federalists to fill these posts. Since federal judges serve for life, this action would ensure the continued influence of the Federalist Party in the federal government. However, Adams was not able to get all the commissions, or appointments, delivered by the time he left office. Angered by Adams’s “court packing” scheme, President Jefferson instructed his new secretary of state, James Madison, not to deliver the remaining commissions. William Marbury was one of those who failed to receive his commission. Marbury took his case to the Supreme Court. He based his argument on Section 13 of the Judiciary Act of 1789. This section empowered the Supreme Court to issue a “writ of mandamus” to force an official, in this case Madison, to perform a duty for which he was legally responsible. Chief Justice John Marshall, who was himself one of Adams’s last-minute appointments, faced a delicate dilemma. If he issued the writ, Jefferson and Madison might simply ignore it, thus weakening the Court’s authority. If he refused to issue the writ, however, it might imply that the Court had no power to judge the actions of the executive branch. Instead, Marshall did neither.

marburymadison021612On February 24, 1803, the Supreme Court issued its decision. Writing for the majority, Marshall said that Marbury deserved his commission and that Madison should have delivered it. But Marshall also wrote that Section 13 of the Judiciary Act violated the Constitution. Article III, which established the Judicial Branch, did not give the courts power to issue a writ of mandamus. Declaring that a law “repugnant to the constitution is void,” the Supreme Court struck down Section 13 of the Judiciary Act as unconstitutional and decided against Marbury.

Supreme_Court_Judicial_ReviewIt was a brilliant decision, both legally and politically. Although Jefferson did not support judicial review, he could do nothing to oppose it because the Court did not ask him to enforce the writ. Marshall preserved the Court’s authority and also given it the power to review the constitutionality of acts of Congress and the executive branch. Judicial review has played a key role in Court decisions since Marbury v. Madison. One of its main consequences has been to allow citizens to challenge in court any law or government action that they believe violates the Constitution.

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Gov: Judicial Review

supreme-court-viewpoints1     The most controversial cases decided by the Supreme Court are often those that involve judicial review. Nowhere does the Constitution mention the power of judicial review. In 1803, the Supreme Court took on that duty for the first time in Marbury v. Madison. In that case, the Court declared a portion of the Judiciary Act of 1789 to be unconstitutional. It thus established the power of the judiciary to review the constitutionality of legislative or executive actions. Over time, judicial review has become the judicial branch’s most important check on the other two branches. More than two centuries after the Court assumed this power, Americans are still divided about its proper use. On one side are supporters of judicial activism, and on the other are advocates of judicial restraint.

Judicial activism is based on the belief that the Court has both the right and the obligation to use its power of judicial review to overturn bad precedents and promote socially desirable goals. Liberals tend to be more supportive of judicial activism than are conservatives. They look to the Court to defend the rights of women and minorities, for example, when legislatures fail to act.

Advocates of judicial restraint hold that judicial review should be used sparingly, especially in dealing with controversial issues. Conservatives tend to be more supportive of judicial restraint than are liberals. In their view, elected representatives, not unelected judges, should make policy decisions.

Government Homework:
1. Read Chapter15.4 pp.288-291
2. Constitution Unit Test – Friday 11/1
3. Amendments Quiz III – close on Saturday 11/2

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