03.02 Judicial Review
A deck of flashcards covering the concept of judicial review, its importance, and related concepts such as senatorial courtesy and checks on the judiciary.
What is judicial review?The reason why it matters who serves as a federal judge is because they have the power of judicial review. Judicial review is the power of federal courts to review laws of Congress and acts of the executive branch in light of the Constitution, with the possibility that they will rule them to be unconstitutional.
It matters who serves as a federal judge because their power of judicial review allows them to interpret the Constitution and potentially overturn laws or executive actions.
Key Terms
What is judicial review?The reason why it matters who serves as a federal judge is because they have the power of judicial review. Judicial review is the power of federal courts to review laws of Congress and acts of the executive branch in light of the Constitution, with the possibility that they will rule them to be unconstitutional.
It matters who serves as a federal judge because their power of judicial review allows them to interpret the Constitution and potentially overturn ...
The Supreme Court can check the state and local governments through this power as well. While the main job of the judicial branch is to interpret law, the Constitution does not mention judicial review directly.
The Supreme Court can check state and local governments through judicial review, even though the Constitution does not explicitly mention this powe...
Since the Constitution does not mention judicial review, how do the federal courts have this power?
See next cards.
The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.
-Alexander Hamilton, Federalist No. 78
Alexander Hamilton described the role and functions of the judicial branch, including the power of judicial review.
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
-Alexander Hamilton, Federalist No. 78
Hamilton explains that the Constitution is the "fundamental law" of the United States, representing the will of the people, and therefore superior ...
Do Judges Make Policy?
Though the Constitution did not design the courts to make policy, they can have that effect through judicial decisions. When a federal court reinte...
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| Term | Definition |
|---|---|
What is judicial review?The reason why it matters who serves as a federal judge is because they have the power of judicial review. Judicial review is the power of federal courts to review laws of Congress and acts of the executive branch in light of the Constitution, with the possibility that they will rule them to be unconstitutional. | It matters who serves as a federal judge because their power of judicial review allows them to interpret the Constitution and potentially overturn laws or executive actions. |
The Supreme Court can check the state and local governments through this power as well. While the main job of the judicial branch is to interpret law, the Constitution does not mention judicial review directly. | The Supreme Court can check state and local governments through judicial review, even though the Constitution does not explicitly mention this power. |
Since the Constitution does not mention judicial review, how do the federal courts have this power? | See next cards. |
The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. | Alexander Hamilton described the role and functions of the judicial branch, including the power of judicial review. |
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. | Hamilton explains that the Constitution is the "fundamental law" of the United States, representing the will of the people, and therefore superior in authority to any law passed by a legislative body that conflicts with it. He explains that when judges face a conflict between a law and the Constitution, they must base decisions on the Constitution. |
Do Judges Make Policy? | Though the Constitution did not design the courts to make policy, they can have that effect through judicial decisions. When a federal court reinterprets a law or the Constitution in a major way and applies it to a new situation or group of people, it can affect public policy. |
remedy | a legal mean of enforcing the rights of those favored by a judicial decision. |
Sometimes a court decides on a remedy that requires legislative or executive policy changes. A remedy is a court action requiring payment of damages or fulfillment of some other type of obligation, perhaps related to a right or a contract. | For example, when the U.S. Supreme Court ruled that the Medical School of the University of California at Davis admissions process unfairly rejected Allan Bakke based on his race, the ruling forced the school to admit him, as a remedy. |
How Do Judges Compare to Elected Officials? | Federal judges, like members of Congress and the president, exist in government to serve the people. However, voters elect senators, representatives, and the president while the president appoints federal judges with the Senate's approval. The framers of the Constitution set it up this way because they wanted judges to make decisions based on the laws and Constitution, rather than the will of the people, which can change from moment to moment. |
In the district and appellate courts, a president will often nominate a person recommended or preferred by the senators from that state... | .....an act known as "senatorial courtesy." |
While senatorial courtesy may help improve the chances of confirming the nominee, some critics say it blurs the lines between the executive and legislative branches in the important power of selecting judges. | For this reason and many others, some Americans argue that federal judges should be elected and accountable to the people just like other federal officials. |
What Are the Checks on the Judiciary? | The executive and legislative branches do have other checks on the power of the federal judiciary. The Constitution gives Congress the power to determine the organization and jurisdiction of the lower federal courts. It can impeach federal judges, although that is only possible for very serious crimes. One other check is through regular policymaking. |
How Can Judicial Review Change Over Time? | Changing social values, such as views on civil rights, can influence judicial interpretation. The cases brought to the Supreme Court reflect the concerns of the people and issues yet to be resolved by the Constitution. While judges are supposed to be independent, their personal ideology of government will also influence interpretation of the Constitution's intent. The Supreme Court justices make a decision by majority, so that is at least five out of nine justices in the current organization of the court. |