A. judicial power (1) judicial review



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Con Law – Prof. Leslie Griffin

Spring Semester 2003

© Daragh Carter
I. FEDERAL POWERS

A. JUDICIAL POWER

(1) JUDICIAL REVIEW




Marbury v. Madison

The Sup Ct has original jurisdiction according to Article III in cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party”.

The 1789 Judiciary Act (congressional legislation) extended the Sup Ct’s original jurisdiction beyond that provided in the constitution; Sup Ct said this unconstitutional.
Famous Marbury quote: It is emphatically the province and duty of the judicial department to say what the law is.” – Sup Ct is saying that they get to review what the law is and whether law introduced by congress is constitutional.
Marbury is a famous case because without pointing to specific text within the constitution the Sup Ct reaches out and asserts jurisdiction to strike down an act of congress as unconstitutional.
The only way to overturn a Sup Ct decision is by constitutional amendment, but it can be overruled with legislation consistent with congress’ view on the matter.
The power of judicial review is the biggest thing to come out of Marbury.

THE JUSTICIABILITY DOCTRINES




  1. POLITICAL QUESTIONS

Two bases for declining political questions:



    1. Textual-Structural

    2. Prudential

Prudential reasons: Some questions that otherwise would fall under the legal domain ought to be avoided to prevent judicial “embarrassment”. Sup Ct doesn’t want to be seen as over-reaching or grabbing for power.


Why is the distinction between constitutional and prudential limits important?

Because congress can override prudential restrictions, but not constitutional.


Policies behind justiciability requirements:

  1. Separation of powers: By limiting themselves to “cases and controversies” the judiciary avoids stepping on the toes of the other branches.

  2. Resource Conservation: By selectively hearing cases via the justiciability doctrines the judiciary is able to conserve its resources. They have limited “political clout” and in allowing the court to turn down cases the justiciability doctrines let them cash it in only when absolutely necessary.

  3. Concrete Controversies: The doctrines allow the court to face concrete controversies and adverse litigants, i.e. cases in the traditional sense, which after all is what they are best equipped to preside over. This improves judicial decision making.

  4. Promote fairness: The doctrines promote fairness because they generally prevent the federal courts from adjudicating the rights of persons not parties to a lawsuit.


Non-Justiciable Cases (court refuses to hear them)



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