JUDICIAL REVIEW 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 Judicial power—original and appellate jurisdiction; law and equity Judicial power—original and appellate jurisdiction; law and equity Congress’s power over federal courts (organization, appellate jurisdiction, budget, impeachment) Congress’s power over federal courts (organization, appellate jurisdiction, budget, impeachment) President’s power over federal courts (appointment, enforcement) 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 Three Chief Justices (Jay, Rutledge, Ellsworth) Three Chief Justices (Jay, Rutledge, Ellsworth) Seriatim opinions Seriatim opinions Perceived as weakest branch Perceived as weakest branch

Constitutional Convention on Judicial Review Madison’s notes: 9 delegates supported judicial review 9 delegates supported judicial review 2 delegates opposed judicial review 2 delegates opposed judicial review 44 delegates expressed no opinion 44 delegates expressed no opinion 1 argued Supreme Court should strike down “unjust” national or state legislation (James Wilson) 1 argued Supreme Court should strike down “unjust” national or state legislation (James Wilson)

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 Roots in 17 th Century English law Roots in 17 th Century English law Used by state courts to interpret state constitutions Used by state courts to interpret state constitutions Exercised at least five times by U.S. Supreme Court before 1803 (S. Snowiss, Judicial Review & the Law of the Constitution (1990) 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 Adams appoints John Marshall Court Chief Justice of United States Adams appoints John Marshall Court Chief Justice of United States 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 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 Organic Act for District of Columbia creates 3 new justices of the peace Organic Act for District of Columbia creates 3 new justices of the peace

John Marshall Served Eliminated seriatim opinion-writing Exercised personal power of persuasion over other justices John Marshall Served Eliminated seriatim opinion-writing Exercised personal power of persuasion over other justices

Republicans Push Back : Congress repeals Judiciary Act of 1801, restoring circuit-riding duties of Supreme Court and eliminating 16 Federalist judges 1802: Congress repeals Judiciary Act of 1801, restoring circuit-riding duties of Supreme Court and eliminating 16 Federalist judges 1802: Suspends the term of the Supreme Court, fearing constitutional challenge to validity of repeal act (Stuart v. Laird) 1802: Suspends the term of the Supreme Court, fearing constitutional challenge to validity of repeal act (Stuart v. Laird) Public attention riveted on Stuart v. Laird. Marbury v. Madison lurking in background 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) Madison refuses to appear Madison refuses to appear Only government witness is Marshall’s nephew! Only government witness is Marshall’s nephew! No appeal from Supreme Court sitting as trial court 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 Eakin v. Raub (Pennsylvania, 1825) (see WTP text) Eakin v. Raub (Pennsylvania, 1825) (see WTP text) Brutus Brutus Decisions not enforceable 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 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. 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. McCulloch v. Maryland McCulloch v. Maryland Gibbons v. Ogden defined broadly Congress's right to regulate commerce. Gibbons v. Ogden defined broadly Congress's right to regulate commerce. Gibbons v. Ogden Gibbons v. Ogden 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. 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. Dred Scott v. Sandford Dred Scott v. Sandford 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 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 Plessy v. Ferguson Plessy v. Ferguson 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 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 Brown v. Board of Education of Topekade jure Brown v. Board of Education of Topekade jure Gideon v. Wainwright guaranteed a defendant's right to legal counsel. Gideon v. Wainwright guaranteed a defendant's right to legal counsel. Gideon v. Wainwright Gideon v. Wainwright New York Times v. Sullivan extended the protection offered the press by the First Amendment. New York Times v. Sullivan extended the protection offered the press by the First Amendment. New York Times v. Sullivan New York Times v. Sullivan Miranda v. Arizona Criminal suspects must be warned of their rights before they are questioned by police. Miranda v. Arizona Criminal suspects must be warned of their rights before they are questioned by police. Miranda v. Arizona Miranda v. Arizona Roe v. Wade legalized early-term abortions. Roe v. Wade legalized early-term abortions. Roe v. Wade Roe v. Wade 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. 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. Regents of the University of California v. Bakke Regents of the University of California v. Bakke