Judicial Review: The US Model

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Rolf Sims
5 years ago
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1 Judicial Review: The US Model What is judicial review? How did it evolve? Who has the power to exercise jud review? When is it available? To whom it is available? What is judicial review? Right of courts to declare governmental actions null and void if they contradict the constitution. Proceeds from assumption that constitution is supreme law of land No one is entitled to set it aside Includes legislative and executive branches Outcomes determined on majority vote 5-4 votes are binding How did judicial review evolve in the US? Absence of constitutional endorsement Nothing in the language of constitution about judicial review Marbury v. Madison (1803) Marshall interprets constitution to give Supreme Court the right to strike down actions by other branches of federal govt when they contradict the constitution Later extended to actions of state govts (Fletcher v. Peck, 1810) 1

2 Did the framers intend to give courts the right of judicial review? No longer much debated debate has now shifted to the scope of review Debate between strict constructionists & interpretivists Strict constructionists: understanding of constitution should be limited to intent of original drafters Interpretivsts: understanding of constitution should respond and be adapted to the evolving needs of society What is the argument behind the constitution in exile? Why does Posner dislike strict constructionism? What is the positive case for strict constructionism? How often have US courts struck down governmental acts? First 50 years after Marbury v. Madison, US Supreme Court did not strike down any federal legislation, though it did strike down some state legislation First post-marbury case is Dred Scott Post-Civil War is new age of judicial review Broad interpretation of 14 th amendment opens door for more cases More recent track record: 79 cases from in which US Sup Ct struck down state actions as unconstitutional 2

3 Who exercises judicial review? Are there any US courts that are not empowered to exercise judicial review? Should all courts be so empowered? What does this suggest about the sorts of judges we want on the bench? Note that standards for jud rev may vary US constitution State constitutions When is judicial review available? And to whom? Possibility for judicial review exists at trial court level BUT with likelihood of appeal Only limit on who can bring claim is requ mt for case or controversy Focus of claim can be any gov tal act Source may be either legislative or executive branch state or federal level How else might judicial review be structured? Power to declare gov t acts unconstitutional could be limited to US Supreme Court When such questions are raised at trial, courts could be required to refer that question to the US Sup Ct Requirement for case or controversy could be loosened Newly enacted laws / regulations could be immediately reviewed by the US Sup Ct 3

4 Standing to bring cases could be limited Perhaps only legislators should be entitled to bring claims Or maybe only registered non-governmental organizations should have standing What are the advantages to allowing everyone access to this mechanism? Why are amicus briefs allowed? Types of governmental acts subject to judicial review could be limited Either legislative acts or administrative regulations Number of justices could be increased Multiple panels would allow them to hear more cases Pluses & minuses of judicial review: Anti-majoritarian Federal judges are not elected BUT are given right to negate actions taken by elected officials To what extent are judges accountable? To whom are they accountable? Judges are insulated from political pressure Contrast between US Supreme Court & state supreme courts US Supreme court => US constitution State supreme courts => state constitutions US Supreme Court Original jurisdiction Appellate jurisdiction Writs of appeal used to be mandatory for ct Writs of certiorari discretionary jurisdiction 4

5 How realistic is prospect of appealing a case to the US Supreme Court? Time Money Low odds of getting case accepted Reality => most cases decided at circuit ct (intermediate appellate) level How does the US Supreme Court work once a case has been accepted? Oral argument Deliberations Writing opinion, concurrences, & dissent(s) Role of Justices Role of clerks Circulating opinions Announcing opinions US Supreme Court takes relatively few cases & issues full-fledged opinions in fewer cases Per curiam opinions: Unsigned opinion Usually quite brief Expresses judgment of Court as a whole, though dissents are possible Used when the legal issues are straightforward Helpful in clearing the docket 5

The Federal Courts. Chapter 16

The Federal Courts. Chapter 16 The Federal Courts Chapter 16 3 HISTORICAL ERAS OF INFLUENCE 1787-1865 Political Nation building (legitimacy of govt.) Slavery 1865-1937 Economic Govt. roll in economy Great Depression 1937-Present Ideological