Judicial Review

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THE NATURE OF JUDICIAL REVIEW









Indhira Ramirez
The Nature of Judicial Review





















Courts all around the country have the judicial power, which interprets contracts. However, only few courts have the power of judicial review. Judicial review it is what makes the Supreme Court of the United States so important in todays society, Federal System and the separation of powers. If it wasn't for judicial review judges all over the country could potentially abused of discretion and make decisions base on personal opinion that would have led to many injustices and poor decisions. Judicial review is important because it allows the Judicial Branch to keep an eye on the powers of the Executive and Legislative Branches, and make sure that they are obeying the rules of the Constitution. The Judiciary Act of 1789 was responsible for the creation of the Federal Judicial System and also brought the case of Marbury v. Madison that led to the important precedent of what is called today judicial review. In this paper I will provide a background and explanation of what judicial review is; the two types of judicial review at the Federal and State level; how it works and how is grounded in the U.S constitution, and last I will discuss an important Supreme Court case name McCulloch v. Maryland to have a better understanding of judicial review.
The federal court system consists of a constitutionally created Supreme Court, federal district courts, courts of appeals and specialized courts created by Congress. These courts are created by the state's legislation, which hold the remaining of the judicial power. The jurisdiction of the Federal level is constitutionally limited to cases or controversies arising under the United States Constitution, laws of the U.S., and treaties of the U.S. Moreover, the U.S constitution specifically confers original jurisdiction on the Supreme Court in all cases involving ambassadors, public ministers, consuls, two states or more and others. For example, if New York wanted to sue New Jersey, it would be required to sue in the United States Supreme Court. In addition, The United States Supreme Court can review lower federal court decisions by appeal when there is an appeal from a three-judge district court decision. All other cases in the Federal Courts of appeal, including an appeal when the court of appeals holds a state statute invalid or when the federal court has held an act of Congress unconstitutional, can be reviewed by writ of certiorari by the Supreme Court. A writ of certiorari is an extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review. The Supreme Court has complete discretion to hear cases that come to it by writ of certiorari. A case will be heard if four justices agree to hear it. Some of the cases that may be heard are cases from the highest state court where the constitutionality of a federal statute, federal treaty, or state statute is called into question; or when a state statute allegedly violates federal law.
The state's constitution and laws of the state lay out the state's court system. Generally, each state has a court of last resort, commonly known as Supreme Court, which is usually the highest court in the state. Some states have intermediate court of appeals, and below of these courts are the trial courts. State courts have the power to review violation of state laws or actions based on the violation of the state's constitution. In New York, the highest state court is called the court of appeals, while in other states is called the Supreme Court. For instance, in New York if a litigant is not satisfied with a final decision issue by a New York Supreme Court, the litigant may appeal that determination to the appellate court. An appeal seeks to review or modify a verdict from the trial court. The appellate division court reviews questions of law and questions of facts. The Court of Appeals is empowered only to review questions of law, means to determine whether the law was properly applied in the lower court. Both Federal and State courts have had to work with other courts in order to make final decisions at some point, but how those decisions are usually made are through the power of judicial review.
Judicial review is the process in which a court has the authority to examine an executive or legislative act, and to null or void that Act if it is contrary to the constitution. In other words, it is the power of a court to review the actions of the executive and legislative branch. Judicial review is generally associated with the U.S. Supreme Court's decisions. This means that all state's court and judges in every state are bound by the United States Supreme Court's decision through the Supremacy Clause. Through judicial review, state courts determine whether or not state executive acts or a state statute are valid. It should be noted that state's court can only review the application of a local law (state's law) or legislate act because only the United States Supreme Court or a Federal Court has the power to review a law of general applicability in the nation; such as the violation of the United States Constitution, a federal statute or treaty. This principal stems from the Supremacy Clause of the U.S Constitution states "this constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the judges in every state shall be bound thereby, ant Thing in the Constitution or Laws of any State to the contrary notwithstanding." This means that any state's law that contradicts the national constitution or a federal law is considered inapplicable or invalid. Also, Judicial review is concerned with the American administrative law. When the Congress passes an act empowering administrative agencies to carry on governmental activities, the power of those agencies must conform to the authority given by Congress. The limitation of this authority granted is limited by judicial review. For instance, if an agency oversteps its legal bounds, the American courts will intervene, and it will review those decisions.
Judicial review was established in the case of Marbury v. Madison, 5 US 137 (1803). In Marbury V. Madison (1803), Chief Justice John Marshall declared Section 13 in The Judiciary Act of 1789 unconstitutional. The case began when President John Adams appointed 82 Federalist Justices overnight; these were referred to "Midnight Judges." Jefferson did not like the idea of having so many Federalist in power interpreting the laws. Among all 82-midnight judges was William Marbury. Jefferson gave James Madison the order of not delivering the documents granting Marbury his position. Marbury appealed straight to The Supreme Court asking for a "writ of mandamus" based on The Judiciary Act of 1789. A writ of mandamus is a writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, usu. to correct a prior action or failure to act, in other words is asking the court official to take act and/or fulfill his or her duty under the law. However, Chief Justice John Marshal had an important decision to make. Even though Marshal knew that ordering Madison to deliver the official documents was the correct thing to do, he feared weakening the image of the Court if President Jefferson refused to follow. Instead, Marshall ruled that The Judiciary Act of 1789 was unconstitutional and thus led to the important precedent of what it is known today as Judicial Review. Judicial review performs at the Federal and State level.
The United States legal system is composed of two separate, but closely related courts system that perform at different levels: the Federal level and State level. The Supreme Court has the power to review acts of the Legislative and Executive branches to make sure they don't become too powerful or overturn the Constitutional rights of the country's citizens, this is at the Federal Level and refer as Co-equal judicial review. Co-equal judicial review is when a Federal Court assesses the constitutionality of an action taken by the legislative or executive branch of the government. In the other hand, we have supervisory judicial review that is at the state level, and is when a Federal Court assesses the constitutionality of an action taken by the state or an institution of a state government. McCulloch v. Maryland (1819) is an example of both types of judicial review.
McCulloch v. Maryland 17 U.S. 316 (1819) set a precedent for the importance of judicial review and the superiority of the Federal government. In this case Maryland had imposed illegal taxes on the bank notes of the second bank of the United States. James McCulloch was the Baltimore branch cashier at that time and appealed to the Supreme Court arguing on behalf of the bank. McCulloch refused to pay the taxes because the bank was a Federal entity and states cannot tax them as such. Chief Justice John Marshall's decision argued that just because the constitution doesn't point out a specific law it doesn't mean that it is not there. Article I, section 8 states "To make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers…" the constitution had implied powers. These implied powers allowed the congress to established a bank. In addition, he pointed to Article VI of the Constitution, which says that the Constitution is the 'supreme Law of the Land', meaning that state laws must abide by the Federal laws. If the state had the power to tax a federal entity it meant they also had the power to destroy it. Since states had no power to tax or control the laws of the Federal government it meant that imposing such taxes on the Bank of the United States was unconstitutional, null and void. This was an important case that favored national control of the economy over state control. In his ruling, John Marshall established the implied powers doctrine that allowed Congress to use the necessary and proper clause of Article I, Section 8, in which he was able to interpret those powers. Given these points the case concluded that, when state law and federal law were in conflict, national law always took precedence.
In summary, judicial review makes sure that the actions of the legislative and executive branches are abiding by the constitution, but if contrary to the U.S. constitution it ensures that those Acts are declared null and void. In addition, judicial review separates the powers at a federal level (Co-equal judicial review) and at a state level (Supervisory judicial review). Co-equal judicial review overlooks how Federal Courts assess the constitutionality of actions taken by one of the branches in the government. While in the other hand, Supervisory judicial review ensures that the Federal Courts assess the constitutional actions taken by the state. Supreme Court cases like Marbury v. Madison that led to the precedent of judicial review and McCulloch v. Maryland that gave precedent to superiority of Federal government established a especial landmark in the United States legal system allowing for the constitution to be interpreted and applied.





































Bryan A. Garner, Black's Law Dictionary (Minnesota: Thomson Reuters, 2009), 258.
Terry L. Jordan, The U.S. Constitution And Fascinating Facts About it (Illinois: Oak Hill Publishing Company), 43.
Bryan A. Garner, Black's Law Dictionary (Minnesota: Thomson Reuters, 2009), 1046-1047.
Terry L. Jordan, The U.S. Constitution And Fascinating Facts About it (Illinois: Oak Hill Publishing Company), 36.