Theoretical foundation of judicial review

t Interpretations just reviewed look like pretty transparent manipulations of legal sources, hardly the work of a great legal mind.

t The part of Marbury that has lasted is the part establishing judicial review. Logic below continues to be followed by modern courts. It is the theoretical foundation of judicial review.

n USC is supreme law;

n any statute that conflicts with USC is therefore not the law;

n it is the judiciary’s job to say what the law is;

n therefore, it is the judiciary’s job to decline to enforce any law that conflicts with USC.

t Judicial supremacy:

n Nothing in this logic implies the kind of judicial supremacy asserted by SCt in cases such as Cooper v. Aaron. Perhaps there is a case to be made for judicial supremacy, but it would have to be defended on other grounds.

n Other interpreters of the USC also matter. Note, for example, Lincoln’s first inaugural address. His holding that the union is indissoluble had more important historical consequences than any decision in the history of the SCt.

t What do you think of power of judicial reviewestablished by Marbury – a power that is nowhere specified in USC?

n Is it appropriate for SCt to declare congressional legislation unconstitutional? How about state legislation?

n Ought Congress and President defer to SCt’s interpretations of USC? Ought state governments do so?

n If judicial reviewis ever appropriate, how can it be justified? How does one’s choice of justifications (if one is persuaded by any of them) affect the way in which judiciary review is actually practiced?

t Countermajoritarian difficultywith judicial review: This involves two difficulties:

n Frustrating present majority. Courts are suppressing the will of a present majority, merely because some past majority has said that a particular course of action is impermissible. This is really an intertemporal difficulty; it applies even if judicial interpretation is purely mechanical.

n Judicial discretion. There is a discretionary element in interpretation, so that the values of (unelected) judges will enter into the political decisionmaking process. In order to respond to this difficulty, courts must rest their decision on some legitimate source of decision in order to ensure that judges are not acting like legislators. What those sources of decision should be is, of course, a matter of continuing debate.

Date: 2015-01-02; view: 1144