It is commonly thought that the Supreme Court has always had the power to strike down unconstitutional laws. However, the text of the Constitution does not explicitly grant this power, called judicial review, to the Supreme Court.
The writers of the Constitution needed some kind of body to determine when the Constitution was broken. Some argued that this power should be delegated to the Congress instead of the Supreme Court. Hamilton asserted the reasoning and necessity behind granting the power of judicial review to the court. In his Federalist Paper #78, he asserted that the power was necessary to keep Congress in check. Despite the founders’ original purpose, the power of the early Supreme Court was largely unclear and was submissive to both the executive and legislative branches.
This uncertainty of the power of judicial review was demonstrated before John Marshall was Chief Justice. In fact, in Calder v. Bull in 1798, the Supreme Court wrote that they could not opine on whether the “Court has jurisdiction to decide that any law made by Congress contrary to the Constitution of the United States is void.” However, they were able to determine that the “Court has no jurisdiction to determine that any law of any state legislature contrary to the Constitution of such state is void.”
In the landmark case Marbury v. Madison, Marshall held that, although Marbury’s rights were violated, the court did not have the jurisdiction to order Madison to deliver the commission that Marbury wanted. Marshall did this by establishing the power of judicial review and striking down the Congressional law that gave the power to the Court to mandate government officials to take action.
Although the Constitution never mentions judicial review, the power has been found implied from Articles III and IV. Article III mentions how the “judicial power of the United States, shall be vested in one Supreme Court.” Furthermore, Article IV describes the Constitution as the “supreme Law of the Land” as well as all judicial officers and executives to be “bound by Oath or Affirmation, to support this Constitution.” Since the Supreme Court is required to interpret the law, and the Constitution is the supreme law, the court is implied to interpret the Constitution and have a duty to remove laws that are unconstitutional.
Since the conception of the court, over a hundred Congressional laws have been declared unconstitutional. The debate on the power of the court has grown recently with the appointment of Judge Kavanaugh. In fact, some now still argue that the court has too much power. Many cite the “retire or expire” term limit for judges along with partisanship divides decides too much with too little control from the people. With the ability to decide on hot-button issues such as abortion, judicial review is extremely powerful.
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I found your post on judicial review very informative and thought-provoking. It is fascinating to look at how powerful the Supreme Court can be from its power of judicial review. I find it interesting that although the Supreme Court is so powerful, the justices still serve for life, which, as you mentioned, in a very partisan court, may not be the most beneficial path for our country. However, it does serve as a good check for the other two branches; if it didn't have the power of judicial review, it would probably be considered less important in politics. In the Constitution, it is not actually mentioned that justices serve for life, only that they "shall hold their offices during good behavior." However, most justices still serve for life or until retirement (with only two in history being impeached). This creates a factor of unpredictability in the leanings of the court; for example, Eisenhower nominated 5 justices and Jimmy Carter nominated 0. Term limits are definitely something to consider regarding how partisan our political system is. Overall, great post!
ReplyDeletehttps://bigthink.com/politics-current-affairs/why-supreme-court-lifetime-tenure?rebelltitem=3#rebelltitem3
https://newrepublic.com/article/151620/says-supreme-court-justices-get-lifetime-tenure