[Note: Numbers in brackets refer to the printed pages of Understanding Constitutional Law by Norman Redlich, John Attanasio, and Joel K. Goldstein where the topic is discussed.]
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Chapter
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THE COURTS
AND JUDICIAL REVIEW
Judicial review involves the
power of courts to review legislation to determine whether it is consistent
with the Constitution. A fundamental
question in constitutional law concerns why courts are authorized to exercise
this power.
§1.01 Constitutional Law and Argument [1-4]
A constitution is a nation’s basic law. The constitution contains the basic principles according to which the nation is governed. It both authorizes and limits governmental power.
Constitutional law involves interpretation. Judges, lawyers and scholars use several types of constitutional argument to analyze and interpret the Constitution.
a. The constitutional text
b. Historical argument
i. Intent of the framers; originalism
But the framers’ intent is often not clear.
Why should it bind us centuries later?
ii. Ongoing history
iii. Judicial doctrine
c. Structural argument
d. Value arguments
e. Prudential/pragmatic arguments
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), is cited as authority for the judicial review power of courts.
Facts: Marbury sued to compel delivery of his commission as a Justice of the Peace after President Jefferson and Secretary of State Madison failed to deliver it to him after President Adams had appointed him.
Chief Justice Marshall held that Section 13 of the Judiciary Act of 1789 was unconstitutional because it sought to confer on the Supreme Court original jurisdiction over a type of dispute over which the Constitution gave it only appellate jurisdiction. Where a statute violated the Constitution it was the duty of the courts to apply the Constitution as paramount law which superceded inconsistent statutes.
These two principles–the preeminence of the Constitution and judicial review–were not explicitly provided for in the Constitution but are supported by various types of constitutional argument.
Marbury can be read as giving the judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution. Although many have argued that other branches also have the power and duty to interpret the Constitution, the Court increasingly contends that it has the ultimate power to do so.
§1.03
Review of State Action
[8-10]
More critical than the principle of judicial review over national legislation is the principle of judicial review over state action. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) held that the Court could review acts of state legislatures and declare them unconstitutional. Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) upheld the constitutionality of section 25 of the Judiciary Act of 1789 which empowered the Supreme Court to review certain decisions of the highest state court which, generally speaking, ruled adversely to some federal right or claim. The Court rejected Virginia’s position that its courts’ interpretations were not subject to federal review regarding federal law. In Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), the Court again affirmed its power to review state court interpretations of federal law.
§1.04
Judicial Independence [10-11]
Art. III sec. 1 provides that federal Art. III judges have life tenure during “good behavior” and protection against salary reduction in order to protect the independence of the judiciary.
But federal judges are not exempt from nondiscriminatory tax increases that apply to them as well as other officials. United States v. Hatter, 532 U.S. 557 (2001).
§1.05
Judicial Dependence [11-12]
The judiciary is dependent, however, on the executive branch to obey and carry out its orders.
It also is dependent on Congress which has some control over federal jurisdiction. This raises important questions regarding the extent to which Congress can restrict the jurisdiction of federal courts. The Constitution gives Congress some power regarding creating and presumably abolishing federal courts. Marbury ,on the other hand, states that the structural principle of the rule of law requires that there be judicial remedies for violation of rights. Can Congress reduce federal jurisdiction in a way which denies remedies for some rights?
§1.06
Court Organization [12-14]
The Constitution provides for the existence of a Supreme Court in Art. III sec. 1 but Congress can control its composition, when it meets and its rules.
Under the Exceptions Clause (Art. III, sec.2 cl. 2) Congress can make exceptions to and regulate the appellate jurisdiction of the Supreme Court. Does this clause confer broad power to restrict the Court’s appellate jurisdiction or simply to make limited exceptions?
Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1868), held that Congress had power to remove the Court’s appellate jurisdiction regarding habeas appeals conferred by an 1867 Act. Still, appellate jurisdiction remained as conferred by the Judiciary Act of 1789 so all routes to the Court were not eliminated. United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), recognized some limits to Congress’ power to restrict appellate jurisdiction of the Court.
The Ordain and Establish Clause of Art. III sec. 1 empowers Congress to decide whether to create lower federal courts. Cases suggest it has broad power in this respect although some, including Justice Story, have suggested that power is not unlimited. Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850), confirms that Congress need not confer on lower federal courts the full jurisdiction the Constitution would allow.
It is not clear that Congress could eliminate all jurisdiction regarding a federal right without violating the Marbury principle.
§1.07. Jurisdiction: Lower
Courts and Legislative Control
[14-18]
§1.08. Supreme Court Jurisdiction [18-22]
§1.09
Non-Article III Adjudication
[22-24]
Congress can also restrict the importance of the federal courts by creating federal tribunals which do not have the Art. III characteristics of life tenure and salary protection and accordingly may not be as independent of Congress. Congress has typically been allowed to create such tribunals dealing with military justice, the territories, the District of Columbia and disputes involving public rights (e.g. the Tax Court, social security benefits, etc.). The Court has policed the expansion of such tribunals by using a balancing test.
§1.10
Cases and Controversies
[24-46]
[1] Doctrines of Justiciability: An Overview
In large part from the Case and Controversy requirement of Art. III, the Court has inferred various justiciability doctrines which limit the Court’s jurisdiction. Some of these doctrines are constitutionally based and cannot be overridden legislatively. Others are based on prudential concerns and may yield to legislative acts.
Federal courts will not render Advisory Opinions.
[a] Constitutional Requirements
The party bringing a lawsuit must have Standing, i.e. it must show that it has suffered an “injury in fact” which was caused by the defendant’s conduct and that a favorable judicial ruling would redress that harm.
[c] Taxpayers
Taxpayers generally do not have standing based on that status alone subject to a limited exception recognized in Flast v. Cohen, 392 U.S. 83 (1968) that recognizes such taxpayer standing when the taxpayer attacks an expenditure under the Taxing and Spending Clause which violates a specific constitutional limitation on that power.
[g] Congressional Standing
Legislators lack standing to challenge actions which damage their institution without affecting their private interests. Raines v. Byrd, 521 U.S. 811 (1997).
Ripeness conveys the requirement that a dispute must have reached a point where the challenged governmental action has a direct adverse impact on the individual making the challenge. Self-executing acts are ripe once enacted; those that require some further action before a legal consequence attaches may be more controversial. At times, courts have held that such laws are not ripe until the further action has occurred.
Mootness deals with cases that no longer present a live Art. III case or controversy. At times, however, courts will hear such cases that are “capable of repetition yet evading review” because otherwise such cases would escape judicial review.
1. Political questions are issues which the federal courts will not address because their subject matter is deemed to be not fit for judicial resolution.
a. Baker v. Carr, 369 U.S. 186 (1962), articulates the classic statement of the various strands of the political question doctrine which includes a textual commitment of an issue to another branch, lack of judicial standards, impossibility of deciding an issue without policy judgments inappropriate for the judiciary, inability to decide an issue without showing disrespect for a coordinate branch, an unusual need to defer to a prior political decision, or a need for the nation to speak in one voice.
b. Issues dealing with foreign policy or defense
matters present
classic political questions.
The Court declined to view as political questions the issues in Bush v. Gore, 531 U.S. 98 (2001), which ultimately decided the 2000 Presidential election.