Judicial Review Poll and Discussion

[RetiredGySgt]

you know, i hate threads like this because they make me want to pull my hair out. seriously.

1. the court exists as a check on the congress, the states and the executive. but for judicial review, it has no purpose.

2. if the court determines something, it is constitutional until that determination is overturned... very basic concept in law.

3. please read:

Marbury v. Madison

the framers had zero, zilch, nada intent that the constitution be nterpreted 'literally' and until scalia and there was no recognized means of interpretation called 'originalism' until scalia and his friends made it up. seriously... no such thing. you will NEVER see it referred to in any case prior to his taking the bench TO THE BEST OF MY KNOWLEDGE. (he may have found some type of reference somewhere so i qualify that). what there was... was an effort to ascertain what the constitution INTENDED and what determination best effectuates such intention.

how can you NOT interpret the constitution? the constitution says what the law is, it doesn't say how it's applied. for example... the constitution guarantees 'equal protection under the law'. the answer to what constitutes equal protection is what is found in a hundreds year old body of caselaw. to understand how the court arrives at those answers and addresses those issues, one has to look at the socratic method and understand judicial thought. no offense, but you don't learn that from glen beck.

seriously.. it's getting very sad watching people pervert hundreds of years of law.

I read the OP a few days ago, and decided to ignore it because it was so stupid. I do not agree with all of the SCOTUS decisions that have come down over time, but we obviously need someone there to serve as a check on the other two branches if they get out of hand. How can anyone seriously believe that judicial review is unconstitutional?

For me Constitutional does not grant unlimited Authority with no oversight or redress. The tool is being abused. Ask yourself this if nothing else.... Why are so many Decisions split so badly down the middle? Why are so few Unanimous? I would argue it is in part because Justices get caught up on different tangents, and fail to come to agreement. There is only so much time to address each case, and that in itself becomes an issue. Who is there to challenge the limits on the Jurisdiction of the Court? You all seem comfortable when your argument or concern is advanced, yet at what cost to Individual Liberty or Justice? One day you will wake up on the wrong side of the coin toss and it will hit you like a ton of bricks. Establishing Justice has little to do with how many serve one side of the issue or the other. Establishing Justice is about Rectifying what wrongs we find, the true remedy exact. There is nothing arbitrary about it.

CONGRESS is granted the POWER to address the Courts Jurisdiction. Further Congress has the power to submit Amendments to the Constitution and one or more could address the POWER of the Supreme Court.

Read Article 3 again. The Supreme Court has ORIGINAL jurisdiction on all matters between States and the US Government. ORIGINAL Jurisdiction on all matters involving Ambassadors and such. Congress is solely responsible in Article 3 to ESTABLISH and control the Supreme Courts Appellate powers.

 

[goldcatt]

I read the OP a few days ago, and decided to ignore it because it was so stupid. I do not agree with all of the SCOTUS decisions that have come down over time, but we obviously need someone there to serve as a check on the other two branches if they get out of hand. How can anyone seriously believe that judicial review is unconstitutional?

For me Constitutional does not grant unlimited Authority with no oversight or redress. The tool is being abused. Ask yourself this if nothing else.... Why are so many Decisions split so badly down the middle? Why are so few Unanimous? I would argue it is in part because Justices get caught up on different tangents, and fail to come to agreement. There is only so much time to address each case, and that in itself becomes an issue. Who is there to challenge the limits on the Jurisdiction of the Court? You all seem comfortable when your argument or concern is advanced, yet at what cost to Individual Liberty or Justice? One day you will wake up on the wrong side of the coin toss and it will hit you like a ton of bricks. Establishing Justice has little to do with how many serve one side of the issue or the other. Establishing Justice is about Rectifying what wrongs we find, the true remedy exact. There is nothing arbitrary about it.

why are decisions split down the middle? in part, because scholars disagree on the answers; in part because appointees are political. bush v gore would never have been decided the way it was had there been another justice souter instead of justice scalia. the one who really is the scholar, btw, is souter... not just because i agree with him. souter's determination of bush v gore would have been to remand to the florida supreme court for determination of the specific issue of equal protection. that is what all of the precedent on the issue required.

the failure to arrive at a consensus has nothing to do with time.

the right answer is not always about justice, though one would hope it is. for example, the right answer in kelo was that zoning is a standard fair use of property. but the result in that case was a horribly unjust one.

why else are decisions split? judges are human and imperfect. there have always been rumors that sandra day o'connor got very upset when she heard that gore won the 2000 election because she would 'have to wait another 4 years to retire' since she wanted to retire under a republican president. she later said she regretted her vote in that case and the decision has been compared by scholars to the decision in dred scott.

why is the decision in plessy v ferguson different from the decision in brown v board of ed?? because the world changed and, along with it, our idea of equality and the realization that separate cannot be equal. it's really that simple

... and that complex.

I always liked O'Connor, even if I didn't always agree with her.

I agree with all of the above, and would add one small thing. The Supremes through the process of cert have the opportunity to choose their own cases. Hearing slam dunk issues, ones where there is no real controversy and are likely to produce unanimous opinions, is a waste of their valuable time.

Cases that easy are usually denied cert or handled with a simple unsigned order.

Now go look at the number of unanimous panel decisions at the Circuit level, where they don't have the luxury of choosing only the controversial cases, and compare the results.

 

[PoliticalChic]

Is interpretation on the Constitution necessary?

There is no mention of Judicial Review in the body of the Constitution.

The Judiciary interpreted from the Constitution the power to interpret the Constitution.

That seems circular to me. How can you use a power that you don't have to give yourself a power?

Some state constitutions at the time the Constitution was written DID have Judicial Review as an enumerated power and it was discussed at the 1787 Constitutional Convention.

Does the fact that it was discussed but NOT included in the Constitution suggest that the framers believed a strict reading sufficient and that no interpretation was required?

This has been an interesting thread...and I understand the import of your question...but the basis of the review, or the source of the basis is the critical part, to my mind.

If the courts use the Constitution as the basis, this, it seems to me, is the essence of judicial review, and, of course, constitutional.
But if it is merely a judges whim, or political perspective, then it is not.

1. "... nonelected members of the federal judiciary may
address themselves to a social problem simply because other
branches of government have failed or refused to do so. These
same judges, responsible to no constituency whatever, are
nonetheless acclaimed as “the voice and conscience of contemporary
society.”
a. What we are talking about, however, is a suggested
philosophical approach to be used by the federal judiciary, and
perhaps state judiciaries, in exercising the very delicate responsibility
of judicial review.

2. Those who have pondered the matter have always recognized that
the ideal of judicial review has basically antidemocratic and
antimajoritarian facets that require some justification in this
Nation, which prides itself on being a self-governing representative
democracy.

a. All who have studied law, and many who have not, are familiar
with John Marshall’s classic defense of judicial review in
his opinion for the Court in Marbury v. Madison. The ultimate source of authority in this Nation,
Marshall said, is not Congress, not the states, not for that matter the Supreme
Court of the United States. The people are the ultimate
source of authority; they have parceled out the authority that
originally resided entirely with them by adopting the original
Constitution and by later amending it. They have granted some
authority to the federal government and have reserved authority
not granted it to the states or to the people individually.

b. In addition, Marshall said that if the popular branches of
government—state legislatures, the Congress, and the Presidency—are operating within the authority granted to them by
the Constitution, their judgment and not that of the Court must
obviously prevail. When these branches overstep the authority
given them by the Constitution, in the case of the President and
the Congress, or invade protected individual rights, and a constitutional
challenge to their action is raised in a lawsuit
brought in federal court, the Court must prefer the Constitution
to the government acts.
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf

Far too often judges at every level have engaged in 'lochnerizing,' making decisions based on their particular biases or beliefs..

The following are from my notes of a speech given by Jeffrey Rosen, Legal Affairs editor of The New Republic magazine:

3. There is the question of the proper function of the courts, and the overreach that some recognize in cases such as Lochner v. NY, and characterized as Lochnerizing…

a. Lochnerization is a method to examine and strike down economic legislation under the guise of enforcing the Due Process Clause. Lochnerization was first used by the U.S. Supreme Court in the early 20th century. Lochnerization is derived from the decision in Lochner v. New York, 198 U.S. 45 (U.S. 1905). Lochnerization also describes a method of legal reasoning where a court substitutes its policy judgment for a legislature in overturning legislation. Lochnerization Law & Legal Definition

b. This case is often cited as an example of judicial activism in opposition to textualism, that is finding rights in the Constitution that are not in its wording.

4. The 1905 case Lochner v. New York concerned a duly enacted New York statute limiting to 60 the number of hours per week that the owner of a bakery could require or permit his employees to work…. Workers were at risk of pulmonary disease from breathing in the flour dust, and in constant jeopardy of being burned by hot ovens, especially when tired and less than fully alert. The New York state legislature sought to protect workers against exploitation and abuse by limiting working hours. Yet the Supreme Court said no. Citing an individual right to "freedom of contract" purportedly implied by the Due Process Clause of the Fourteenth Amendment, the justices struck down the law as an unconstitutional interference by the state in private contractual relations between employers and employees. Judicial Usurpation and the Constitution: Historical and Contemporary Issues | The Heritage Foundation

5. The following are two dissents to the Lochner decision.

a. Justice Holmes claimed that the court had imposed its own ‘social view,’ and when there are good reasons on both sides of an issue, the courts should defer to the legislature. He pointed to the textual problem, in that the phrase ‘right of contract’ did not appear in the Constitution.

b. Justice John Harlan dissented from the decision on more traditional grounds, that of judicial restraint: “I’m not going to tell you what I think, but when people of good faith might reasonably feel that baking is a dangerous and unhealthy profession, then judges should not second-guess them.”

c. Rosen explained that the country was divided about the legitimacy of laissez faire versus progressive insistence on ‘economic justice,’ and it was not the job of the courts to select one or the other, - ‘economic libertarianism.’ So a lochnerite is one who wishes the courts to second-guess economic legislation.

And what does this have to do with the legitimacy of judicial review?
The basis of the review itself may be constitutional, or it may be an impostition of a personal view..not necessarily with the restraints set by the Constitution.