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US Supreme Court And Judicial Review – OpEd

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By Mike Jennings

If you follow US politics, you are more likely to have heard the term “Judicial Review” – a practice by the Judiciary to review the actions of the other branches of the government, both federal and state.

Most recently the US Supreme Court used this power to strike down a California law, which banned the sale of violent video games to minors.

The Supreme Court in its 35-page long opinion held that the California ban was in contrast with the First Amendment.

The case in question is only one of numerous instances of the application of Judicial Review. But who gave US courts in general and the Supreme Court in particular the power to make such decisions?

There are many people who would almost instantly say the Constitution of the United States. Well, not quite!

As a matter of fact, Article III of the Constitution — which establishes the judicial branch of the federal government — only briefly discusses the powers of the Supreme Court, compared with relatively lengthy Articles I and II which establish the Legislative and Executive branches respectively.

Although the Constitution does give the Supreme Court certain powers, the authority to review legislation or executive orders is not one of them.

The first precedent of the Supreme Court practicing Judicial Review is, ironically, when the Court claims that it has such a power for the first time!

That was in 1803 when the Supreme Court heard the famous Marbury V. Madison case.

Marbury V. Madison

The case followed the presidential election of 1800 in which John Adams — a Federalist and the second US president after George Washington — lost to his then-Vice President Thomas Jefferson — A Democrat-Republican.

The federalists who had lost both the White House and Congress, attempted to extend their grip on the Judiciary by increasing the number of district courts, circuit courts and judges across the country.

At the time, outgoing President Adams appointed his Secretary of State John Marshall the Chief Justice of the Supreme Court. Marshall, as the state secretary, was responsible for issuing commissions for the newly appointed judges.

While Marshall did issue all the commissions and most judges did receive them before the new administration came to power, 17 judges including William Marbury did not receive their commissions.

James Madison, the new secretary of state, at the order of President Jefferson blocked the delivery of the remaining commissions. This prompted Marbury, a federalist, to sue Madison, a Democrat-Republican, at the Supreme Court.

William Marbury cited a section of the “Judiciary act of 1789,” which gives the US Supreme Court authority to issue Writ of Mandamus — an order to compel a lower court or a government officer to properly do their job or carry out their duty.

Marbury was hoping the Supreme Court would issue a Writ of Mandamus to Madison, whom he thought would subsequently be forced to give him the commission.

However, once President Jefferson learned about Marbury’s intentions — and the possibility of Marshall issuing the Writ of Mandamus — he suspended the Supreme Court for two years.

After the Supreme Court was finally resumed, Marshall decided to hear the case while many believe he should have recused himself on grounds that he was – as the state secretary of the time – personally involved in the case.

Not only he hears the case, as the chief justice, Marshall also wrote the opinion of court arguing that legally Marbury was entitled to his commission since he was appointed by the president and confirmed by the Senate. Furthermore, since Marshall was the secretary of state at the time, he knew that Marbury’s commission was also written and the only problem standing between him and his job was that the commission was not delivered to him.

Therefore, Marshall argued that Marbury was legally the Justice of Peace appointed to the District of Columbia by President Adams. However, Marshall said in the opinion, the Supreme Court did not have the authority to issue a Writ of Mandamus.

He claimed that the “Judiciary Act of 1789” contradicted Article III of the Constitution, which stipulates that the Supreme court has Original Jurisdiction over a case only if the case involves ambassadors, public ministers and consuls or a state:

“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 Constitution of the United States, Article III, Section 2

Marshall added that as chief justice he was under oath to uphold the Constitution, which is the Superior Law of the land, and therefore concluded that parts of the “Judiciary Act of 1789” – which was a broad legislation — should be struck down because it gives the Supreme Court the power to issue Writs of Mandamus in cases over which the Supreme Court does not have jurisdiction.

Thus Marshall set the first precedent for Judicial Review.

Constitutionality of Judicial Review

It is interesting that the Supreme Court said that it did not have jurisdiction over Marbury’s case only after hearing it, instead refusing to hear the case on grounds that it does not have jurisdiction to do so.

Marshall’s ruling was met with furious criticism at the time with many, including President Jefferson, saying that the Supreme Court does not have Constitutional authority to strike down a law ratified by Congress and the president.

Ironically, Judicial Review had been discussed by the Framers of the Constitution but was deliberately left out only years prior to the decision. What is even more ironic is that the “Judiciary Act of 1789” was passed by the first US Congress, which was dominated by the same people who wrote the constitution.

Consequently, Marshall’s claim that the “Judiciary Act of 1789” contradicted what the Framers of the Constitution meant seems absurd.

Another noteworthy point is that the “Judiciary Act of 1789” did not obligate the Supreme Court to issue Writs of Mandamus and merely stated that it “shall have the power” to issue Writs of Mandamus “in cases warranted by the principles and usages.”

Therefore, the act was not even unconstitutional to begin with.

However, since Marshall’s ruling affected only the Judiciary it could not be ruled out or ignored by any other branch of the government.

Marshall, who was the Chief Justice of the United States Supreme Court until 1835, continued to uphold his earlier decision but he never again struck down another federal law and restricted his “Judicial Review” practice to state-level cases.

By the time he died, Marshal had set enough precedent for Judicial Review that it was accepted as a prerogative of the Supreme Court.

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