Understanding Judicial Review

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Judicial ReviewName:Thousands have gathered outside the Supreme Court ih protest, bothi n support of and against a new law. A group of school shooting victimslobbied t o get a gun control law passed t o stop gun violence in schools.Many support the law and believe it will make our country safer. Otherssay the new law is unconstitutional because it limits private citizens' abilityt o purchase guns The case tes been brouit t o the Supreme Court, andit's up t o them t o deodefitrfwhySit t p t otheCourt anyway?Let s Talk About Judicial ReviewJudicial reviewis the power of the Supreme Court to decidewhether a law, executive order, or other act of government isconstitutional or not. Its the ultimate check on the executiveand legislative branches of government. Why? Because it allowsthe Supreme Court t o evaluate actions from the presidentand Congress—and, in some cases, reverse them. Think thePresidents new executive order violated freedom of speech orthat Congress' new law restricted your right to equal protection? You can take it up in federal court.Whenever a citizen can demonstrate that a law or government action violated their rights, they canbring that complaint to the courts. Their complaint is the first step in the process called judicial review.Its Constitutional, Right?Wrong. Contrary to what some might think, the power of judicial review isnot expressly given in the Constitution. In fact, this power wasn't evenestablished until 1803, almost fifteen years after the states ratified the U.S.Constitution. That was when a Federalist judge namedWilliam Marburystarted the process that would change the way the courts functioned forever.Step back into 1801. President John Adams, a member of theFederalist party and only the second President of theUnited States ever, was about to step downand hand over the reins to a Democratic-,. .Republican, Thomas Jefferson.IKtffamMarburyThe power t o appoht Judcesis still a big deal because it's away for the executive did legislativebranches t o influence the federalcourts, especially the supreme one! Shcepresidents are respoisib.e for nominathcJudges, they often choose canddates whoseruling.- have proven t o alicpi with their o w ipolitical party. Aid because federal lodges servefor life, their rulings impact the country muchlonger than a president's one o r two terms. Ofcourse this doesn't always work out Sometimes,as with Preside itObama ih 2016, an Dpposiigparty in the Senate stops the Judicial nanhatiohfrom being approved This is one way Congress caninfluence the Mdciai branch a s wekFederalist? Democratic-RepubticanfYoumight be wonderingwhy all those lab-els even matter. Federalist and Democratic-Republican were the main political parties people identifiedwith at the time, like Democratic and Republican today.1801 was the first-ever political party change in thehistory of our country, so things were a bit tense. BeforeAdams stepped down, h e appointed several federaljudges. (Not to be confused withFederalist;"federal"here means that they worked for the nationalgovernment, not the states). All of the judges werefrom his political party. Adams hoped that theFederalists would be able to control the courtsonce the Democratic-Republicans took office. Butonce Jefferson was in office, he and Secretaryof State James Madison decided not to send theletters that finalized the judges' appointments.lBVlCfiI20191071(3, Ire.Reading - Side A

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Judicial ReviewName:Justice Marshall Gets Creative!AKT(CLE fijOne of the to-be-judges was William Marbury. He was livid, and hewanted his job. He took his complaint to the Supreme Court and askedthem to issue awrit of mandamus,basically, an order from theCourt requiring someone to perform a lawful duty, like delivering thoseappointment letters. The chief justice of the Supreme Court,JohnMarshall,was a Federalist himself, so it seemed pretty obvious thathe'd side with Marbury, andhedid,kind of.But he also gave anotherjudgment; one that would change the way the Court functioned forever.Justice Marshall agreed that Madison needed to hand over the letters.He just didn't think the Court could force him t o do it. Specifically, hedidn't believe that the Court should have the power to issue writs ofmandamus at all because, getthis,it wasn't written in the Constitution!Article I I Iof t h e Constitutiondescribes the role, authority, andformat of the Supreme Court and gives Congress the power to createand structure lower federal courts. I n 1789, Congress wrote a law thatdid just that. That law was called theJudiciary Act o f 1 7 8 9 ,and itcreated the federal court system as you know it today. The act alsogave the Supreme Court the power to issue writs, like the one Marbury wanted.Thisis where Marshallsaw a problem. iVhere tvasthat power in the Constitution?MarshalI believed that the Judiciary Act of1789 expanded the Supreme Court's power beyond what was written in the Constitution and the otherjustices agreed.What Does That Even Mean?Essentially Justice Marshall decided two things:# 1 - Marbury was rignt Madison shouldhand over theletters.#2- The Court hadno constitutional power t o force him to do suWait, what?! If it sounds confusing, that's because i t was. Marshall s decision came at a time when theCourt's power was new and kind of uncertain. It would have been dangerous for it to look as thoughJustice Marshall was taking Marbury's side since they were both in the same political party. So Marshallshifted the case from a political fight between parties to a question ofjurisdiction,which is the officialpower to make legal decisions or exercise authority over a person, institution, or territory.This was the first time that the Supreme Court had ever declared an act of Congress unconstitutional.Marshall ruled that whenever a law (like the Judiciary Act of 1789) was i n conflict with the Constitution,the Constitution must be upheld. By ruling that the Court only had the jurisdiction to use powers thatgiven to it in the Constitution, the Court actually established another power for itself—the power ofjudicial review!Marbury never got his job,butusing the Constitution in this way is one of the first examples ofestablishinglegal precedentthe practice of relying o n the basis of an earlier decision to determinethe outcome of future decisions. Judicial review may not be found word-for-word in the Constitution,but the Court's ruling inMarburyv.Madisonsolidified it as a precedent that the Court has used eversince.|CI V I C SI2015IQVICJ. inc.Reading - Side B

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Judicial ReviewN a m eWhat if the Court had issued the writ? Wouid Marbury have gotten his job?Maybe—the Court can rule, but it doesn't have much powerto enforce its decisions.The Court doesn't have the authority t o matelaw orenforce its decisions Thesepowers belong t o other branches I tdoesn't happen often, but Supreme Court rulingshave been igiored in the past Inltoxestfirv Georgia /7fii?President AndrewJackson and the state o f Georgia dismissed a decision that said the state couldn't impose its lawsin the Cherokee nation. And&pwn ifBoard o f Educationdesegregated public schoolsFaced protest For years before President Dwight Eisenhower mobilized the National GuardandArmy troops t o help nine Black students desegregate Central High School in Little Rock, Arkansas9YHere 5 Where It Gets a Bit More Complex...Today, judicial review is one of the most well-knownpowers of the Court and gives the judicial branch equalstanding with the other branches of the government. TheSupreme Court can evaluate congressional laws, actionstaken by the president, and state laws and actions forconstitutionality if they're brought to the Court for review.And because judicial review takes place after a law hasbeen passed or an action has been taken, the Court oftenhas the final say.Judicial review is usually defined in one of two ways:restraint or activism.Judicial restraintis the belief thatjudges should limit their power over legislation. Rulingsshould try to determinehowthe law applies instead ofoverturning it. Because of this, restraint typically requiresthat judges stand with earlier Court precedent, a principlecalledstare decisis—pronounced stair-ee de-cy-sis—whichis Latin for "let the decision stand .ffinneered fhthe United States, judidaireview now exists in more than thirtycountries. State supreme courts also havethis power, but the U.S. Supreme Court canreview their decisions.Judicial activism,on the other hand, is the willingness of a judge to overturn laws by declaring themunconstitutional. Although it can be difficult to define., judicial activism typically occurs when politicaland social forces butt heads against parts of the Constitution or specific laws. I n instances of activism,the Court strikes down la ws or actions, usually for the purpose of extending the protections of theConstitution. They may also overturn their own decisions—legal precedents—set in previous cases.JwAoafActivismObergefeU v. HodgesVtiiS)In this case, the Supreme Cotrt decided that the 14thAmendment guarantees the right to man y for same-sexcouples and required that all states recogiize same-sexmarriages as equally vatd as cfposite-sex marriages.Thiscase ofjwfcial actMsm overtui ned&iterv.Netsoqacasethat said bans on same-sex marriage wei e constitotioiai,and reversed the ruling of the lower court<JGamto?v. United States (2019)Terrance Gamble argued that under the Sth Amendment thestate of Alabama and the federal government coJdn't tryhim f w the same crime la practice called double jeopardy}.The Court upheld the precedent that state and federalgovernments can each try a per sen For the same crime, andit is not double jeopardy, because each government is itsown sovereign—government ’with the authority t o set itsown laws and polish those who don't follow them_________________________________________________/■(vics \anv icki-i. fanReading —Side C

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