What is Judicial Review
Judicial review is the authority possessed by all federal courts to review legislation to determine its constitutionality. The legislation may be an act passed by Congress or a state legislature, an executive act issued by the President or a state’s governor, or a decision rendered by a state court.1 The final arbiter on all constitutional questions, however, is the Supreme Court. Judicial review is not an enumerated or expressly stated power found in the Constitution; rather, it is an implied power derived from Article III, sections 1 and Article VI, section 2.2 “Judicial power” traditionally confers responsibility to settle disputes involving laws, which implies the power to interpret what the laws mean. With the ratification of the 14th Amendment in 1868, federal courts were also empowered to extend the protections of the Bill of Rights, the Constitution’s first ten amendments, to the citizens of the states, a concept known as the incorporation of the Bill of Rights into the Constitution. Federal courts could, therefore, declare state laws that violated any part of the Bill of Rights unconstitutional. Keep in mind, however, that all federal courts are passive actors in the federal system. For a court to determine something’s constitutionality, a party with standing3 must challenge a law or executive action in a federal court.
The landmark Supreme Court decision that first articulated the doctrine of judicial review was Marbury v. Madison (1803 ).4 Chief Justice John Marshall, the longest serving Chief Justice in American history (1801-1835), wrote the decision for a unanimous Court. He divided the case into three questions. First, was the petitioner, Marbury, entitled to an appointment as federal justice of the peace? Second, did the law provide him with a remedy, ie, a means to receive the appointment? Third, was a proper remedy a writ of mandamus (a court order that requires a government official to carry out the official’s legal responsibility) issued by the Supreme Court?
Marshall answered “yes” to the first two questions. Because the appointment had been properly made by President Adams, and sealed by his Secretary of State, John Marshall, Marbury was entitled to the position. However, the new Secretary of State, James Madison (appointed by President Jefferson) refused to deliver the appointment to Marbury, a technical duty that Madison was required to perform. Madison’s position did not protect him from being held accountable for his failure to act.
The third question was more complicated and fraught with legal and political implications. Marshall ruled that the Supreme Court lacked authority to issue writs of mandamus, a power extended to the Court by the Judiciary Act of 1789 (see footnote 4 for details), because Congress could not constitutionally extend the Court’s original jurisdiction stated in Article III. Article III assigns the Supreme Court two types of jurisdictions: original and appellate (see footnote 1). Marbury’s case did not involve appellate jurisdiction, because it was not appealed from a lower court. Marshall argued that the Court’s original jurisdiction was limited to those stated in Article II, such as matters involving ambassadors. Since petitions for writs of mandamus was not an area of original jurisdiction, Marbury could not receive a remedy from the Supreme Court. Marshall further reasoned that Congress could not extend the Court’s jurisdiction to things not included in Article III, so the part of the Judiciary Act of 1789 that gave the Court the ability to hear original suits seeking writs of mandamus was unconstitutional. The Court found that Madison’s refusal to deliver the commission was illegal, but it did not order Madison to hand over Marbury’s appointment via writ of mandamus.
Marbury v. Madison is considered among the Supreme Court’s most important decisions. Many federal cases have relied on the judiciary’s ability to strike down acts of Congress and the Executive, based on this precedent. But the decision did have its critics. Perhaps the most obvious was President Jefferson, who chastised Marshall for engaging in unnecessary editorialization and for rendering any decision at all other than that the Court lacked jurisdiction. By striking down parts of the Judiciary Act, Marshall established the doctrine of judicial review, solidifying the Court’s position as a coequal partner in the federal system.
- The federal court system is composed of three levels: district or trial courts with original jurisdiction, appellate courts (of which there are today ten circuits plus the Circuit for the District of Columbia) with appellate jurisdiction, and a Supreme Court with both original and appellate jurisdiction. Original jurisdiction is the first “right” to hear a case. The court hears evidence, finds facts and renders a decision in the dispute. Appellate jurisdiction grants a court the power to hear challenges to questions of law raised by one of the parties during the trial. Appellate courts do NOT retry the case; instead, they determine whether any errors occurred that materially affected the trial court’s decision during the trial. If an error is detected, the appellate court returns the case to the trial court for retrial in which the appellate court's instructions must be followed. ⇧ ⇧
- The relevant part of Article III, section 1 reads: “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The relevant section of Article VI, section 2 (the Supremacy Clause) reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land …” ⇧
- Standing is a legal requirement that requires that the party bringing a suit, the plaintiff, prove three things. First that the party suffered (or will suffer) a real (not imagined) injury. Second, the alleged injury can be clearly linked to the party, the defendant, that allegedly caused the injury. Third, the court has the authority to repair the alleged injury should it grant the plaintiff's requested compensation. ⇧
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The circumstances and facts of the case are as follows. The
presidential election of 1800 pitted incumbent President John
Adams, a Federalist, against Thomas Jefferson, leader of the
Democratic-Republican Party. This election was the first in
the country’s history to feature two, nationally organized,
political parties. (The first two elections with Washington as
the leading candidate had no serious opposition, while in the
1796 election, VP Adams generated several opponents.) Adams
was not a widely popular President. Congress, dominated by
Federalists, had passed the Alien and Sedition Acts that
empowered Adams to prosecute his political enemies, angering
the Anti-Federalists who would become Democratic-Republicans.
The nasty election was notable for the intense personal
attacks on the candidates fired by both sides. In another
first in the world’s history, a peaceful transfer of power
occurred when the sitting government willingly gave power to
the newly elected, opposition party.
With Congress still in Federalists’ hands and outgoing Adams still in office (new presidents in this time did not assume office until early March), Congress passed the Judiciary Act of 1801, which amended the Judiciary Act of 1789 by adding 16 new district judgeships and 42 new magistrates. Adams quickly nominated people to fill all the new positions, and they were confirmed by the Senate. The proper papers were signed by Adams and delivered to his Secretary of State, Marshall. On March 3, before leaving this position to be sworn in as the next Chief Justice, Marshall delivered all the appointment papers to the individuals, except a few which, by accident, were left on Marshall’s desk. One of those misplaced was Marbury’s. On March 4, Jefferson became President and James Madison, Secretary of State. Madison found the undelivered appointments and refused to deliver them. Marbury sought a writ of mandamus from the Supreme Court, rather than some other court, because the Judiciary Act of 1789 extended the Supreme Court’s original jurisdiction to include issuing writs of mandamus. ⇧ ⇧