“Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court

2005 ◽  
Vol 99 (4) ◽  
pp. 583-596 ◽  
Author(s):  
KEITH E. WHITTINGTON
Keyword(s):  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
Status Quo ◽  
Policy Agenda ◽  
United States Supreme ◽  
Constitutional History ◽  
Government Officials ◽  
Constitutional Review ◽  
The Status

The exercise of constitutional review by an independent and active judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an “overcoming obstructions” account of why judicial review might be supported by existing power holders. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary. This dynamic is illustrated with case studies from American constitutional history addressing obstructions associated with federalism, entrenched interests, and fragmented and cross-pressured political coalitions.

Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far?

2010 ◽  
Vol 11 (2) ◽  
pp. 275-290 ◽  
Author(s):  
Gerhard van der Schyff
Keyword(s):  
United States ◽  
The Netherlands ◽  
Supreme Court ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Review ◽  
Judicial Control ◽  
Chief Justice

One could be forgiven for thinking that constitutional review by the judiciary is invariably part of modern constitutionalism. Gone are the days that constitutions contained provisions that prevented the courts from testing the constitutionality of legislation, such as section 59 of South Africa's now repealed Constitution of 1961 that forbade the courts from inquiring into or pronouncing on the validity of legislation. It has come to be accepted in many quarters that a constitution presupposes judicial review in some form or another in gauging the integrity of legislation, instead of only relying on legislative wisdom as before. An attitude that echoes the views expressed inMarbury v. Madisonby Chief Justice Marshall of the United States Supreme Court, that by its very nature a written constitution implies judicial control. However, the Constitution of the Netherlands proves to be an exception in this regard, as section 120 states emphatically that:The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.

Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe

2004 ◽  
Vol 5 (6) ◽  
pp. 685-701 ◽  
Author(s):  
Wolfgang Hoffmann-Riem
Keyword(s):  
United States ◽  
Judicial Review ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Thomas Jefferson ◽  
Court Decision ◽  
United States Supreme ◽  
The Right ◽  
Justice Of The Peace

This year we celebrate a United States Supreme Court decision that marks the beginning of modern jurisdiction over constitutional questions: Marbury v. Madison. This is all the more remarkable since, when it was decided two hundred years ago in 1803, it was controversial and many still maintain it was wrongly decided. Chief Justice Marshall ruled on a dispute which he had earlier had a hand in causing, since the alleged legal error – the untimely delivery of a commission to Justice of the Peace Marbury – fell within his area of responsibility as Secretary of State. He dismissed the petition because the incorrect legal procedure had been chosen. However, he did not examine this question at the outset but – contrary to the accepted procedural rules of his time – at the end. This left room for a wide-ranging discussion of the right of judicial review, which was not required by law, and was, therefore, obiter dicta. Thomas Jefferson later referred to this discussion as the Chief Justice's “obiter dissertation.” Of course, Adams himself contended that the case turned on the judicial right of review, since this was a component of his argument that the petition should be dismissed.

scholarly journals Rebalancing the Medical Triad: Justice Blackmun’s Contributions to Law and Medicine

1987 ◽  
Vol 13 (2-3) ◽  
pp. 315-334
Author(s):  
Harold Hongju Koh
Keyword(s):  
Supreme Court ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Constitutional History ◽  
Supreme Court Justice ◽  
The Supreme Court ◽  
Constitutional Right ◽  
Triangular Relationship ◽  
American Society

The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun of the United States Supreme Court with its first Presidents’ Award for Distinguished Contributions to the Fields of Law and Medicine. It is my task to explain why that honor is so richly deserved.To me the answer is simple: as much as any other judge in our Nation's two hundred-year constitutional history, Harry Blackmun has shaped and defined our modern conception of the constitutional right to privacy, as well as our developing notions of the scope and limits of medical privacy. During his twenty-eight years on the federal bench and his seventeen years on the Supreme Court, Justice Blackmun has played a major role in rebalancing what I call “the medical triad” — the triangular relationship among the patient, the doctor and the state, with which this Society's members are so intimately familiar.

scholarly journals Gathering and Examination of Evidence in Russian and American Constitutional Litigation

2018 ◽  
pp. 86-100
Keyword(s):  
United States ◽  
Supreme Court ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
General Idea ◽  
Constitutional Court ◽  
United States Supreme ◽  
Trial Courts ◽  
Fact Finding

This article attempts to critically assess the gathering and examination of evidence in Russian and American constitutional litigation. With references to case law of the Russian Constitutional Court and the United States Supreme Court, the author demonstrates that the properties of judicial review of legislation have significantly shaped the basic elements of constitutional fact-finding. The general idea of the article is that owing to the practice of «in-house» re-search conducted by the Russian Constitutional Court, constitutional justice in Russia tends to be inquisitorial, whereas judicial review of legislative actions exercised by American trial courts basically complies with the adversarial principle. At the same time when it comes to constitutional litigation in federal appellate courts and the United States Supreme Court, one can observe a clear deviation from the adversarial principle and notice investigative traits that appear to be at odds with the American concept of justice. Also in both countries there exists a similar negative trend associated with constitutional reasoning based on evidence that was not tested by parties in the course of constitutional proceedings.

Judicial Review and the Military Commissions Act: On Striking the Right Balance

2007 ◽  
Vol 101 (2) ◽  
pp. 344-362 ◽  
Author(s):  
David A. Martin
Keyword(s):  
United States ◽  
Human Rights ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Geneva Conventions ◽  
Military Commissions ◽  
The Right ◽  
The Military

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the United States Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy—President George W. Bush’s unilateral establishment of military commissions to try terrorist suspects by means of reduced procedures—and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantánamo and other U.S. detention sites overseas; it limits certain key protections available to the accused in a military commission proceeding, as compared to courts-martial; and it takes a crabbed view of the requirements of common Article 3 of the Geneva Conventions—at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible—and highly desirable.

The Influence of the United States Supreme Court on Judicial Review in Europe

2020 ◽  
pp. 841-888
Author(s):  
Peter E Quint
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
Supreme Court ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Early Nineteenth Century ◽  
Fifth Republic ◽  
The Soviet Union

This chapter outlines the influence of the United States Supreme Court, and its institution of ‘judicial review’, on certain constitutional systems of Europe. It first introduces the United States Supreme Court and the institution of ‘decentralized’ judicial review, and then discusses the fate of American judicial review in the early nineteenth century. The chapter proceeds to an examination of the influence of the American Constitution and the American Supreme Court in the early nineteenth century in Europe, before recounting how the great philosopher and political thinker, Hans Kelsen, advanced another form of judicial review—‘centralized’ judicial review. Next, an analysis of the influence of the United States Supreme Court on certain constitutional tribunals created in Europe in the post-Second World War period is made, alongside a discussion of the separate path taken by judicial review in France under the Constitution of the Fifth Republic (1958) and the influences on constitutional tribunals created in Eastern Europe after the fall of the Soviet Union. Finally, this chapter offers some reflections on the influence of the Supreme Court’s case law on decisions of European courts of the contemporary period.

scholarly journals Means And Ends In City Of Arlington v. FCC: Ignoring The Lawyer's Craft to Reshape the Scope of Chevron Deference

2015 ◽  
Vol 76 (3) ◽  
Author(s):  
Michael P. Healy
Keyword(s):  
United States ◽  
Supreme Court ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
Administrative Law ◽  
United States Supreme ◽  
Administrative Action ◽  
Means And Ends ◽  
Chief Justice

In last year’s term, the United States Supreme Court considered the question of the scope of Chevron deference in City of Arlington v. FCC. This article discusses how the decision is an example of the work of an activist Court. The case should have been resolved by a straight forward determination under the analysis of United States v. Mead that Chevron deference simply did not apply to the Federal Communications Commission’s (“FCC”) legal determination. The Court ignored this restrained approach to the case and instead addressed the question the Justices desired to decide: the reach of Chevron deference. The article discusses and criticizes the approach of Justice Scalia writing for the majority and of Chief Justice Roberts writing for three dissenting Justices.Practitioners and scholars of administrative law can only be confused by the Court’s willingness to apply Chevron in City of Arlington, given the informal administrative action being reviewed and the fact that neither reviewing court actually applied each of the two parts of the Mead test. The Court’s flawed administrative law analysis results from the activist concerns of Justice Scalia and Chief Justice Roberts. Justice Scalia uses the case as a vehicle to undermine Mead, a decision that Justice Scalia loathes. Chief Justice Roberts uses the case as a vehicle to advocate for less judicial deference and less law defining power for increasingly powerful agencies. Neither member of the Court allowed the applicable rules of contemporary administrative law to hinder his efforts to achieve his broader goals. Administrative law would have been better served if a properly restrained Court had considered and applied the previously determined rules for judicial review of administrative agencies. 

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