Judicial Review : The Face Of Legislative Inertia

The position of the Supreme Court in American society is quite simple: to interpret the Constitution and settle case disputes with the limitations that are binded by our law. While one perspective of the debate states that the court is unbending in their ability to make policy, while the other claims that the court breaks free from these limitations that are binded by our law and are politically dynamic in nature.These are known as The dynamic court and the constrained court are two alternative constructions of the role of U.S. courts in producing significant social reform (Rosenberg, 1991). The balance of these two views rely on the interaction between doctrinal,

With the young nation of America entered into the 19th century, there were still major issues when it came to the balance of powers of the different government branches. The status of judicial review in the Supreme Court was never pressed upon or given any real structure to. The power of judicial review had appeared many times in history before the set up of the Supreme Court as, in England, Chief Justice of the Common Pleas Sir Edward Coke made the originated the idea . During the ruling of the case of Dr. Bonham’s Case, Coke found that the London College of Physicians had no right to levy fines against anyone who violated their rules. He would later go on to state that, “no person should be a judge in his own case” (Fletcher 12). The act was revolutionary at the time as it set the notion of that an official body of government was needed to give fair governess to the people. The idea would pop up once in a while in events such as the Constitutional Convention where records that were kept by the textbook University of Chicago Law Review saw that “13 out of the 15 delegates made statements that were in support of the idea of judicial review” (Prakash 123). The interesting part about the quote is that it states that the idea of judicial review was in place in America many years before the actually case of Marbury v. Madison. Even in the Federalist Papers No. 78 which was published in May 28, 1788, by Alexander Hamilton, went into lengthy discussion about judicial review. In

“Their present decision is equivalent to a repeal of law and the making of law. This is not adjudication, it is mere usurpation. It is the substitution of mere arbitrary will in the place of the solemn and responsible functions of an impartial judicature.”[1]

In this chapter, the question of if judicial independence is being undermined is asked. Attacks upon activist judges is a recurring theme in the United States. Various judges are attacked across the state for the decisions they make. In an adversary system, a judge’s decision often fails to find favor with the losing party. These losing parties normally label the judge as and “activist”. This means that the judge had made an unpopular opinion. There has been many examples of judges being subject to the attacks such as when Justice Penny White was voted off the bench because she voted in a death penalty case to grant the defendant more leeway. These attacks on judges can have a harsh impact on the judicial independence. The American Judicature

The Federal Court System is one of the most essential and significant functions to help settle a matter. Much work is involved in the application of a body of rules and principals of rulings. The path the Federal Courts have to take in order to be heard by the Supreme Court is a lengthy process. Given millions of disputes every year, it becomes impossible for the Federal Courts to be heard by the Supreme Court. The Supreme Court has jurisdictions that limit the variety of cases that are clearly defined in the Constitution. The Supreme Court has developed specific rules that within the jurisdictions will and will not hear. The Federal Court must show they have extreme and substantial evidence in the outcome of the case. In mootness, the Federal

During his opening statement, Scalia employs rhetorical questions in order to elucidate that Americans’ lack of knowledge of the government forces judges to firmly abide by the United States’ unparalleled Constitution. He postulates, “How many of you have read the Federalist Papers?” The reality that “never more than about 5%” of his audience, who are “interested in the law,” has delved deep into the document portrays them as ignorant. With this concern, Scalia expounds upon his originalist ideals and encourages rivaling judges to alter their opinions of a flexible Constitution. Scalia credits his argument through the Framers who illustrated the significance of the Constitution in the Federalist Papers. Due to the fact that Americans are incapable of thoroughly interpreting the government, he attests that judges must abide by the precise words of the Constitution. Scalia advises his audience to

In the book Courting Disaster: How the Supreme Court is Usurping the Power of Congress and the People, it sets out to identify how our government has changed and how these changes affect us and our laws. Pat Robertson wants the people to see how the Supreme Court is abusing power. Robertson shows how the federal judges are not only abusing their power but reaching beyond the power they are given. Thomas Jefferson once cautioned that, “to consider the judges as the ultimate arbiters of all constitutional questions” are “a very dangerous doctrine indeed” and “one that would place us under the despotism of an oligarchy” (Robertson, Courting disaster: How the supreme court is usurping the power of Congress and the people, 2004).

The authority of judicial review recognized by Marbury has allowed the court to result revolutionary alteration in our sympathetic of constitutional supplies. This power hasn’t unpredictably, haggard both censure and praise over the court’s antiquity, but it has never been a supremacy totally beyond the jurisdiction of the other divisions of government. Since the President’s authority to appoint and the Senate’s authority to approve Supreme Court Justices to the infrequent great efforts of constitutional alteration, the court remains resolutely entrenched in our Constitution’s system of checks and balances. Meanwhile judicial review has certified that the Supreme Court’s justices, once established, have adequate power to apply their individuality from the political divisions and apply constitutional bounds on their powers. The Court’s power in constitutional clarification rests in part on general

The task for this week was to discuss how the Supreme Court determines which cases to take on. The case that the Supreme Court takes on varies on many different factors, which must go into consideration prior to them choosing a case. The first step in the decision process of the Supreme Court is chose based on four of the nine justices agreeing to grant the petition. The second factor in the decision process is if the justices decide to take a case if it would resolve a major conflict, for example if it would be federal or constitutional. The third reason why the Supreme Court would hear a case is based upon if the lower echelon courts disregard past Supreme Court’s decisions. In this scenario the Supreme Court would take on the case to prove

The injustice of incarcerating a defendant that was tried and convicted without the representation of an attorney is “an obvious truth.” Gideon, 372 U.S. 344. Yet, isn’t there truth to the shocking injustice of leaving the poor and most vulnerable without representation for legal issues regarding basic needs such as shelter, food, safety, family and health? The decision in Gideon stressed that a criminal conviction, stripping an individual of their liberty, without the representation of counsel was a grave injustice that violated the dues process clause. The poor are denied due process, suffering a loss liberty and justice because they cannot afford legal representation. In some cases, the loss is just as great if not greater than being convicted of a crime or imprisoned. Kathryn Grant Madigan, Advocating for a Civil Right to Counsel in New York State Note, 25 Touro Law Review 9–22 (2009).

Vera Blum continued to bring cases to court and in 2013 Blum brought the case Shelby County V. Holder. This case was centered around The Voting Rights Act of 1965 and officially questioned if “the renewal of Section 5 of The Voting Rights Act under the constraints of 4(b) exceed Congress’ authority under the Fourteenth and Fifteenth Amendments and therefore Tenth Amendment and Article Four of the Constitution” (“Shelby County V. Holder”). While this is quite likely easily understood by one who is familiar with the law, the vast majority are not so intimately acquainted with the Constitution. Therefore, to grasp the very essence of this case requires a great deal of unpacking. Upon unpacking the question it becomes easy to divide the question into two distinct parts; what Blum’s team is seeking to abolish and his explanation as to why. The purpose of this paper simply requires an understanding of the former and allows us to focus on the important and manageable two, as opposed to the overwhelming six. The question brought by Shelby County starts with “Does the renewal of Section 5 of The Voting Rights Act under the constraints of 4(b) exceed Congress’ authority” this reveals the intent to either combat the renewal of Section 5 or to remove “the constraints” put in place by Section 4(b) (“Shelby County V. Holder”). To challenge Section 5 is to challenge the section of The Voting Rights Act that prohibits a very specific list of areas from changing their voting

Suggesting that even when the Courts decided to review Constitutionality of certain state laws the decisions would generally only conform to national public mood. And when the court’s decision did not conform to the national publics mood Congress would step in to make its out policy outcomes which would more please the majoritarian preferences by reversing the more unpopular Court decisions with reversal legislation. Although there may be some legitimacy to Dahl’s argument, Casper is still able to convey that by excluding interpretation of federal statutes and review of constitutional issues arising from state and local laws and practices only weakens Dahl’s argument being that these activities seem highly relevant to determining the court’s role in national policymaking. When they are considered, the courts role appears substantially more influential than Dahl would like to

These source texts address the enduring issue concerning checks and balances by relating our undemocratic Supreme Court with democracy. These issues clearly reflect how prescient our founding fathers were in generating a set of founding principles enabling posterity to grapple with new and evolving situations that could not have been foreseen in the context of the times when our founding documents were written. Luckily, our system of checks and balances is closely aligned with democracy, and in most cases, provides useful direction in resolving the tension between the old and new issues. The argument that the Supreme Court is undemocratic is well supported because Supreme Court justices are appointed for life and because

The Warren Court is widely considered one of the two most influential and impactful courts of the US, along with the Marshall court (Cox 1). While the Marshall Court helped to shape the structure of the government itself, the Warren Court more clearly determined the relationship between the State and the people (Cox 1). The Warren Court addressed and advanced “equality among men, the openness of American society to change and reform, and the decency of the administration of criminal justice” (Cox 1). When hearing Supreme Court cases, he often used questions such as, “Is that what America stands for?” and “Is that fair?” (Cox 2). In many cases, these questions could not be answered in support of one side. In Baker v. Carr, no one could justify

Judicial activism critics in America claim that the law courts mustn’t assume the authority to intervene in issues that involve ethical and political decisions, thereby disregarding the democracy’s fundamental principles. Contrariwise, a court is, on occasion, considered exaggeratedly restrained and passive the moment it refrains from defending the rule of law at large and individual liberties.