As Judicial Process in America discusses, judicial review is one of the features that sets American courts apart from those in other countries. Judicial scholar Herbert Jacob says “the United States is the outlier in the extraordinary power that its ordinary courts exercise in reviewing the conditionality of legislation” (Carp, 2017). As we discussed in class, Article III of the constitution does not specifically state that the Court has the power of judicial review. It states that, “judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; –to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states; between citizen of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizen or subjects.” In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Therefore, it does not state whether or not the Supreme Court has the power of judicial review of the other branches rather it may assume that it does. PBS Digital Studios states, that “judicial review gives the power to the court to declare laws unconstitutional and review the legislative and executive branches. They can have judicial review on congressional laws by validating the law in question, state actions, federal bureaucratic agencies, and presidential actions” (Benzine, 2015).
As we discussed in class, the “Judiciary Act of 1801” also known as the “Midnight Judges Act” reduced the number of justices on the Supreme Court to five. This abolished the practice of “riding the circuit” and created six federal circuit courts. Sixteen new judgeships were created for these circuit courts. Jeffersonians claimed it was a power grab by the defeated Federalists who “retreated to the benches.” The “Judiciary Act of 1789” allowed the Supreme Court to issue “writs of mandamus” which is an order to perform a duty. According to Judicial Process in America, “Marbury v. Madison (1803) is important to help understand the concept of judicial review because “As Secretary of state, Marshall had the job of delivering the commissions of the newly appointed judges. Time ran out before the new administration took over, however, and seventeen of the commissions were not delivered before Jefferson’s inauguration. Jefferson in turn ordered his secretary of state, James Madison, to abstain from delivering the remaining commissions. William Marbury decided to ask the Supreme Court to force Madison to deliver their commissions. They relied on Section 13 of the Judiciary Act of 1789, which granted the Supreme Court the authority to issue ‘writs of mandamus’- court orders commanding a public official to perform and official, nondiscretionary duty. Marshall declared Section 13 of the Judiciary Act of 1789 unconstitutional because it granted original jurisdiction to the Supreme Court in excess of that specified in Article III of the Constitution. Thus the Court’s power to review and determine the constitutionality of acts of Congress was established. This decision is rightly seen as one of the single most important decisions the Supreme Court has ever handled down. A few years later the Court also claimed the right of judicial review of actions of state legislatures” (Carp, 2017).
According to Judicial Process in America, “Plessy v. Ferguson (1896) upheld the Louisiana statue thus the court established the separate but equal policy that was to been effect for about sixty years. During this period many states required that the races sit in different areas of buses, trains, terminals, and theaters; use different restrooms; and drink from different water fountains and attend different schools. Blacks were sometimes excluded from restaurants and public libraries. This body of laws and extralegal practices was unofficially referred to as Jim Crow, after the title of an anonymous nineteenth-century song. Parents of black schoolchildren claimed that state laws requiring segregation deprived them of ‘equal protection’ of the laws under the Fourteenth Amendment. The Supreme Court ruled that the schools are ‘inherently unequal’ and, therefore, segregation denies equal protection. The court overturned the ‘separate- but- equal’ doctrine and established the desegregation of public schools” (Carp, 2017). According to PBS Digital Studios, the judicial review lead to review against state actions of Plessy v. Ferguson (1896), which lead to Brown v. Board of Education (1954)” (Benzine, 2015).
According to legal dictionary, is United States v. Nixon or “Watergate” (1974) was another important case of judicial review because, “During the 1972 election campaign between Republican President Richard Nixon and Democratic Senator George McGovern, the Democratic headquarters in the Watergate building was burglarized. Special federal prosecutor Archibald Cox was assigned to investigate the matter, but Nixon had him fired before he could complete the investigation. The new prosecutor obtained a subpoena ordering Nixon to release certain documents and tape recordings that almost certainly contained evidence against the President. Nixon, asserting an ‘absolute executive privilege’ regarding any communications between high government officials and those who assist and advise them, produced heavily edited transcripts of 43 taped conversations, asking in the same instant that the subpoena be quashed and the transcripts disregarded. The Supreme Court first ruled that the prosecutor had submitted sufficient evidence to obtain the subpoena, and then specifically addressed the issue of executive privilege. Nixon’s declaration of an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” was flatly rejected. In the midst of this ‘Watergate scandal,’ Nixon resigned from office just 15 days later, on August 9, 1974” (Legal Dictionary). According to PBS Digital Studios, this was an example of the court using judicial review on presidential actions (Benzine, 2015).
Lastly, according to PBS, “The events leading up to the infamous 1857 Supreme Court case Dred Scott v. Sandford (1857) were decades in the making. In 1834, Dred Scott, a slave of Dr. John Emerson, a surgeon in the U.S. Army, left the slave state of Missouri to accompany his master to the free state of Illinois and then to the free Wisconsin Territory. In 1846, years after his eventual return to Missouri and months after the subsequent death of his owner, Scott sued Emerson’s for his and his family’s freedom, on the basis of the time they had spent in the free state and territory. Established legal precedent in Missouri, in fact, upheld the ‘once free, always free’ principle, and Scott’s suit should have been a relatively routine process. However, a legal technicality complicated the case and delayed its outcome for years, during which time the political tensions around the issue of slavery continued to heighten. After Scott finally won his freedom in a lower Missouri court, J.F.A. Sanford, Mrs. Emerson’s brother and the legal administrator of her property, appealed to the Missouri Supreme Court, reversing the precedent and deciding against Scott. In 1856, the case reached the U.S. Supreme Court. Although Scott’s case was fraught with legal complications, the basic issue before the Court was whether Scott remained a slave after spending time in a free state and a free territory, each of the nine justices wrote a slightly different opinion in the case. Ultimately they voted 7-2 against Scott. In March 1857, Chief Justice Roger Taney delivered the majority opinion. Drawing a distinction between state and federal citizenship, Taney held that although some states extended citizenship to blacks. Under the terms of the U.S. Constitution, blacks were not — and never could be — citizens of the United States. Taney wrote that at the time of the Constitution’s ratification blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights that the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his own benefit.” Taney went on to say that because Scott was not a U.S. citizen, he had no standing to sue in federal court. Taney’s holding on standing should have decided the case, but he continued in an effort to settle the brewing sectional battle over slavery. He further held that, because the abolition of slavery in the territories were beyond the constitutional power of Congress and slave owners deprived of their property without due process of law, the Missouri Compromise of 1820 had been unconstitutional. The decision marked only the second time in its history — and the first since the 1803 case Marbury v. Madison — that the Court had invoked its power of judicial review to overturn federal legislation” (Konkolly, 1857).
Judicial review has developed in the American Judicial System as cases have occurred shaping judicial review as the most important power of the Supreme Court by letting them declare laws unconstitutional and reviewing the legislative and executive branches. The cases discussed are important and play a major role in helping Americans understand the concept of judicial review by “validating” the law in question in congressional laws, state actions, and presidential actions as shown through the cases provided.
2. Judicial Process in America discusses some of the barriers to the judicial system used to prevent lawsuits or to reduce the workload of the judiciary. These barriers include legislative politics leaving jurisdiction at the will of state legislatures, not to “adjudicate” questions unless it is a real case or controversy, ruling on matters of law and not political questions, and having standing to sue as one shouldn’t benefit from a “governmental endeavor” and then sue in court. Each of these barriers has an impact on advancing or inhibiting the pursuit of justice and is shown throughout the cases mentioned.
As we discussed in class, one of the barriers discussed is “legislative politics” which can inhibit the pursuit of justice because the court does not always find justice based on what congress passes because it can affect the courts jurisdiction to hear the case and Congress may deny appellate jurisdiction according to the Exceptions Clause. As discussed in Judicial Process in America, “Some judges and judicial scholars argue that the U.S. Constitution and the respective state documents confer a certain inherent jurisdiction on the judiciaries in some key areas, independent of the legislative will. Nevertheless, the jurisdictional boundaries of American courts clearly are a product of legislative judgments determinations often flavored with the bittersweet spice of politics. The U.S. Supreme Court is sensitive to the moods of Congress as a study showed the court has been shown to show ‘self- restraint’ and hasn’t used judicial review in order to ‘invalidate’ acts of Congress. The most prominent example of congressional power over court jurisdiction is in 1867. When Congress ‘empowered’ the courts to grant ‘habeas corpus’ to those imprisoned and have a violation to their rights under the constitution. William McCardle was imprisoned for being in violation of ‘Reconstruction laws.’ After appealing to the Supreme Court and the arguments were made, Congress became involved in fear that the court would use the Ex Parte McCardle case to ‘strike down’ the Reconstruction act. Therefore, while the Court was deciding, Congress removed the subject from the ‘federal docket’ and stated that McCardle’s appeal must be dismissed for want of jurisdiction” (Carp, 2017). According to Judicial Process in America, “United States v. Windsor (2013) is a result of the Hawaii Supreme Court approving same sex marriages in 1993, Congress was determined to discourage judges in other states from making similar decisions. The result was the Defense of Marriage Act in 1966. The law was designed in part to prevent judges both state and federal from reading any meaning into the Fourteenth Amendment of the U.S. Constitution that would condone same – sex marriages. In United States v. Windsor (2013) the Supreme Court overturned the Defense of Marriage Act Justice Kennedy said the act was unconstitutional under the Due Process clause of the Fifth Amendment. Kennedy stated, the federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. In Obergefell v. Hodges (2015) the Supreme Court ruled that same sex couples had a constitutional right to marry, thus turning aside contrary court rulings and legislative decisions in the twelve states did not support permit same sex couples to marry” (Carp, 2017).
Another barrier is that a case must have definite controversy; it advances the pursuit of justice because it has to be heavily controversial with the public, that the majority wants the case to be resolved in court. As Judicial Process in America states, “There must be a controversy between legitimate adversaries who have met all the technical legal standards to institute a suit. The suit must concern the protection of a meaningful non-trivial right or the prevention or redress of a wrong that directly affects the parties to the suit. Federal courts do not render advisory opinions that are situations that are hypothetical, the general principle is that the parties to the suit must have proper standing, and lastly the court will not hear a case that has become a moot when the basic facts or the status of the parties has significantly changed in the interim between when the suit was filed and when it comes before the judges. DeFunis v. Odegaard or the ‘law affirmative action case’ that is a moot example in 1974 when the Supreme Court agreed to hear a petition from Marco DeFunis who challenged the constitutionality of the admissions policy of University of Washington Law School. The law school gave preferential treatment to certain minority racial groups, even though such applicants did not rate as high as other, nonminority applicants according to the school’s evaluation procedures based on objective tests and grades. DeFunis, a nonminority applicant, charged with discrimination in violation of his Fourteenth Amendment rights. During the initial trail of this case at the state court level, DeFunis had been admitted to the law school on a sort of conditional basis and when the case eventually reached the Supreme Court, he was in his final quarter of law school. When the Supreme Court learned of this development, a majority determined that the case had become moot” (Carp, 2017).
Lastly according to Judicial Process in America, “courts do not decide political questions, because the court can’t be an instrument in manifesting the popular will, and is therefore not political. By not deciding political question it inhibits justice sometimes because “a political question is one that ought properly to be resolved by one of the other two branches of government even though it may appear before the court wrapped in judicial clothing. A case example of this would be Baker v. Carr (1962) Oyez states; “Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state’s General Assembly was virtually ignored. Baker’s suit detailed how Tennessee’s reapportionment efforts ignored significant economic growth and population shifts within the state. Which raised the question, did the Supreme Court have jurisdiction over questions of legislative apportionment? In an opinion which explored the nature of ‘political questions’ and the appropriateness of Court action in them, the Court held that there were no such questions to be answered in this case and that legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in matters pertaining to state administration and the officers through whom state affairs are conducted. Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation” (Oyez, 2016). Another case example of political question is the case, Zivotofsky v. Kerry (2015) According to Congressional Research Services, “The Supreme Court in its last term by a vote of 6-3 invalidated a statute passed by Congress touching on the status of Jerusalem, affirming the U.S. Court of Appeals for the D.C. Circuit decision in Zivotofsky v. Secretary of State that the President’s power to recognize foreign sovereigns is exclusive and trumps Congress’s authority to regulate passports. The Court’s decision in Zivotofsky v. Kerry (2015) represents the first time the Court has struck down a congressionally enacted law on the basis of a separation-of-powers infringement involving a matter of foreign affairs. At the same time, the Court rejected the executive branch assertion that it has exclusive authority to conduct international diplomacy, while endorsing Congress’s ample authority to influence the nation’s foreign affairs. The implications the decision will have on Congress’s foreign affairs authority will likely depend on its interpretation by lower courts, as well as the two political branches. Successive U.S. Administrations have maintained that the status of Jerusalem is a matter to be resolved between Israel and the Palestinians. Congress has consistently urged the President to recognize Jerusalem as the capital of Israel. In 2002 Congress passed a measure that directed the State Department to give U.S. citizens born in Jerusalem the option of having Israel recorded as their place of birth on their passports in such cases, omitting any reference to country. On signing the act into law, President George W. Bush wrote in an accompanying signing statement that this and other provisions on Jerusalem would, “If construed as mandatory … impermissibly interfere with the President’s constitutional authority to conduct the nation’s foreign affairs.” When Menachem Zivotofsky’s parents sought to invoke the measure to have their son’s birthplace recorded as “Jerusalem, Israel,” the State Department refused. The Zivotofskys took their request to court, seeking an order to have the passport reissued with the place of birth listed as Israel in conformance with the statute. The case was first rejected on the basis of standing, then on the basis of the political question doctrine, but the Supreme Court reinstated the case in 2012, finding there to be no political question and directing the appellate court to examine the “textual, structural, and historic evidence” to determine the nature of the President’s recognition power and Congress’s passport power” (Elsea, 2015).
Lastly, the barrier of “standing to sue” as we learned in class, the court usually requires party to have a personal interest in protection of a legal right conveyed by a statute or law which would help advance the pursuit of justice to prevent a frivolous lawsuit. Court usually standing to groups claiming infringement, states may permit taxpayer suits where standing is granted to all member of the group. An example of a case is Frothingham v. Mellon (1923) that denied federal courts the authority to hear cases challenging the expenditure of tax dollars. It was modified in 1968 when Court allowed challenges to federal funding of private religious schools.
Chapter four of Judicial Process in America, discusses some of the barriers the judicial system contains to either prevent frivolous lawsuits or for the purpose of decreasing the workload of the judiciary. These “principles” are derives from legal tradition and constitutional and statutory law, that govern a judge’s decision about whether to review a case. As discussed, these barriers include legislative politics leaving jurisdiction at the will of state legislatures, not to “adjudicate” questions unless it is a real case or controversy, ruling on matters of law and not political questions, and having standing to sue as one shouldn’t benefit from a “governmental endeavor” and then sue in court. Each of these barriers has an impact on advancing or inhibiting the pursuit of justice because many judges believe that the overuse of their power actually weakens it, and is shown throughout the cases mentioned.