JUDICIAL REVIEW
Power of Supreme Court to determine
constitutionality of acts of Congress,
executive, or a state constitution under
Constitution of the United States
ARTICLE III
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Judicial power—original and appellate
jurisdiction; law and equity
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Congress’s power over federal courts
(organization, appellate jurisdiction,
budget, impeachment)
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President’s power over federal courts
(appointment, enforcement)
First Congress Under United States
Constitution
Judiciary Act, 1789
Organizes judiciary: Chief Justice plus 5 Associate
Justices; 3 circuit (appeals) courts, 13 district
(trial) courts (one in each state). Justices sit as
circuit court judges.
Gives Supreme Court original jurisdiction to issue
writs of mandamus (orders instructing
government officials to undertake official acts)
Supreme Court before John
Marshall
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Three Chief Justices (Jay, Rutledge,
Ellsworth)
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Seriatim opinions
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Perceived as weakest branch
Constitutional Convention on
Judicial Review
Madison’s notes:
9 delegates supported judicial review
 2 delegates opposed judicial review
 44 delegates expressed no opinion
 1 argued Supreme Court should strike
down “unjust” national or state
legislation (James Wilson)
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Federalist #78
Written by Hamilton
Argues judicial review is “essential” but also
“fragile”
Judiciary has no influence over “sword” or
“purse,” no direction over society, can take
“no active resolution whatever”. . .
Judicial Review--context
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Roots in 17th Century English law
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Used by state courts to interpret state
constitutions
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Exercised at least five times by U.S. Supreme
Court before 1803 (S. Snowiss, Judicial Review
& the Law of the Constitution (1990)
Election of 1800
Opponents of Federalists (Jeffersonian
Republicans) emboldened by Alien and Sedition
Acts.
Federalist newspapers: election of Jefferson would
cause "teaching of murder robbery, rape,
adultery and incest".
Electoral College tie sends election to House;
Jefferson wins after 36 votes
Federalist lame-duck response to
election of 1800
BEFORE MARCH 4, 1801
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Adams appoints John Marshall Court Chief Justice of
United States
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Judiciary Act of 1801 creates 6 circuit courts (eliminating
hated circuit-riding) and 16 new judgeships. Reduces
size of Supreme Court by 1 to deprive Jefferson of one
appointment
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Organic Act for District of Columbia creates 3 new
justices of the peace
John Marshall
Served 1801-1835
Eliminated seriatim opinion-writing
Exercised personal power of
persuasion over other justices
Republicans Push Back. . .
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1802: Congress repeals Judiciary Act of 1801,
restoring circuit-riding duties of Supreme Court
and eliminating 16 Federalist judges
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1802: Suspends the term of the Supreme Court,
fearing constitutional challenge to validity of
repeal act (Stuart v. Laird)
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Public attention riveted on Stuart v. Laird.
Marbury v. Madison lurking in background
Facts behind Marbury v. Madison
Outgoing President Adams signed justice-of-peace
commission for William Marbury
Secretary of State John Marshall sealed and told
nephew to deliver.
Nephew failed to deliver before Jefferson took
office.
Jefferson instructed Secretary of State not to
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)
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Madison refuses to appear
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Only government witness is Marshall’s
nephew!
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No appeal from Supreme Court sitting as
trial court
Marshall’s dilemma
If Court issues mandamus, Jefferson will
ignore it, weakening the authority of the
courts.
If Court does not issue mandamus,
politicians and press will conclude it acted
out of fear.
Marshall’s resolution
Marbury has legal right to commission.
Denying commission is illegal.
BUT
Constitution limits Congress (and executive and states).
All acts contrary to Constitution are not law (unconstitutional).
Section 13 of Judiciary Act or 1789 is unconstitutional because
Congress cannot give Supreme Court appellate jurisdiction.
THEORY OF JUDICIAL REVIEW
1.
The people exercised sovereignty when adopting Constitution.
2.
The Constitution is a fundamental, enduring law.
3.
Statutes, executive acts, and acts of states are lesser laws
reflecting temporary, fleeting views.
4.
Fleeting laws and acts (even those reflecting majorities) that
conflict with fundamental law must be disregarded.
5.
The Supreme Court is in the best position to interpret and
preserve the Constitution.
Arguments against judicial review
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Eakin v. Raub (Pennsylvania, 1825) (see
WTP text)
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Brutus
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Decisions not enforceable
Judicial Review in Practice
People accept it but disagree about how
exercised
Big “C” Constitution v. small “c” constitution
(Montesquieu) as limit on Court’s power
Default return to seriatim opinions today?
Major cases
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1819
McCulloch v. Maryland 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.
1824
Gibbons v. Ogden defined broadly Congress's right to regulate commerce.
1857
Dred Scott v. Sandford 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.
1896
Plessy v. Ferguson “equal but separate accommodations” for blacks on railroad cars did not violate the “equal
protection under the laws” clause of the 14th Amendment
1954
Brown v. Board of Education of Topeka invalidated racial segregation in schools and led to the unraveling of de
jure segregation in all areas of public life
1963
Gideon v. Wainwright guaranteed a defendant's right to legal counsel.
1964
New York Times v. Sullivan extended the protection offered the press by the First Amendment.
1966
Miranda v. Arizona Criminal suspects must be warned of their rights before they are questioned by police.
1973
Roe v. Wade legalized early-term abortions.
1978
Regents of the University of California v. Bakke 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.