Cons of Judicial Review

1 January 2017

Judicial review is unlike almost every other aspect of the American legal and legislative processes. It’s different for several reasons, but it is most unique in the sense that it was put into practice before it was put in to the books as law. It was instituted by Chief Justice John Marshall in 1803’s landmark case Marbury v. Madison. Judicial review has been around for over 200 years, and it still draws as much criticism today as it did the day it was instituted.

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John Marshall was Chief Justice of the Supreme Court for 34 years and presided over some of the most important and famous trials in our country’s history, trials such as McCulloch v. Maryland, Cohens v. Virginia, and perhaps most infamously, the Aaron Burr treason trial. But all of these cases pale in comparison to the impact of Marbury v. Madison, both then and now.

In ruling that Congress does not have the power to change an opinion of the court, and that the Constitution supersedes any act of Congress it is in conflict with (in this case the Judiciary Act of 1789), Marshall perhaps forever changed the course of law in America. Marshall’s decision in Marbury was formed not by the facts of the case, but rather whether he had the jurisdiction to hear the case at all. The case went directly to the Supreme Court because Marbury was seeking a writ of mandamus and the Judiciary Act of 1789 states that the Supreme Court has original jurisdiction in such cases.

Article III of the Constitution, however, lists situations in which the Supreme Court has original jurisdiction and writ on mandamus cases are not one of the situations given. Given these facts, it was Marshall’s “emphatic and provincial duty” to say what the law of the land should be. He ruled that the Constitution is the supreme law of the land and that judges shall not enforce a law they deem to be unconstitutional. The decision in Marbury v. Madison sent immediate and long reaching shock waves through the U. S. , and with good reason.

With one decision on what seemed to be a relatively routine case, John Marshall was able to put the Supreme Court, and as such the entire judicial branch, on equal footing with the legislative and executive branches, placing them firmly into the American political process. This new-found strength and importance was met with resistance and resentment at the time, animosity which still exists in some circles today. In my opinion, judicial review is one of the key responsibilities of the Supreme Court, as it is a sort of ‘safety net’ to keep the law from running to any extreme; or away from the Constitution, hich states the principals on which our country was built.

As seen in U. S. v. Carolene Products Co. it helps to protect groups of minorities (whether physical or ideological) from a majority trying to over rule them. There are, however, many critics of judicial review who feel it provides a group that is supposed to be neutral a chance to have the final say on issues that are often times divisive. According to them, it is not the duty of the court to shape the law, but rather simply enforce it.

The thought that a group of people who are appointed for life and face no real consequences for their decisions can overrule the elected officials doing the will of the people is, in their mind, wrong. They believe that the decisions made today should not be forced to conform to a maddingly vague, centuries-old document. There is also the rather ironic argument that judicial review, in and of itself, is unconstitutional. Nowhere in the Constitution is the power of judicial review given to the courts, and for some that leads to charges of hypocrisy.

How can the decisions the court makes on the constitutionality of a law be considered binding, when there is nothing saying the Supreme Court’s word is final. By instituting judicial review, John Marshall was able to give his branch of government, which was at the time the weakest, the final say in all matters pertaining to the law and in essence, all matters of life in the U. S. His ideals have stood the test of time, and will continue to be the way our country is run for a long time to come. Love it or hate it, judicial review is going nowhere.

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