National Policy Preferences and Judicial Review of State Statutes at the United States Supreme Court

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that prevented the courts from testing the constitutionality of legislation, such as section 59 of South Africa's now repealed Constitution of 1961 that forbade the courts from inquiring into or pronouncing on the validity of legislation.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.

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Gathering and Examination of Evidence in Russian and American Constitutional Litigation

Electronic supplement to Russian Juridical Journal ◽

10.34076/2410-2709-2018-4-86-100 ◽

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.

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

The Max Planck Handbooks in European Public Law ◽

10.1093/oso/9780198726418.003.0016 ◽

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.

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Judicial Review in the United States Supreme Court: Are Justices Merely Legislators in Robes?

SSRN Electronic Journal ◽

10.2139/ssrn.1641343 ◽

2010 ◽

Author(s):

Stefanie A. Lindquist ◽

Jeffrey Segal ◽

Chad Westerland

Keyword(s):

United States ◽

Supreme Court ◽

Judicial Review ◽

United States Supreme Court ◽

The United States ◽

United States Supreme

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

University of Pittsburgh Law Review ◽

10.5195/lawreview.2015.332 ◽

2015 ◽

Vol 76 (3) ◽

Cited By ~ 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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