Theoretical foundation of judicial review

• Interpretations just reviewed look like pretty transparent manipulations of legal sources, hardly the work of a great legal mind.

• The part of Marbury that has lasted is the part establishing judicial review. Logic below continues to be followed by modern courts. It is the theoretical foundation of judicial review.

• USC is supreme law;

• any statute that conflicts with USC is therefore not the law;

• it is the judiciary’s job to say what the law is;

• therefore, it is the judiciary’s job to decline to enforce any law that conflicts with USC.

• Judicial supremacy:

• Nothing in this logic implies the kind of judicial supremacy asserted by SCt in cases such as Cooper v. Aaron. Perhaps there is a case to be made for judicial supremacy, but it would have to be defended on other grounds.

• Other interpreters of the USC also matter. Note, for example, Lincoln’s first inaugural address. His holding that the union is indissoluble had more important historical consequences than any decision in the history of the SCt.

• What do you think of power of judicial review established by Marbury – a power that is nowhere specified in USC?

• Is it appropriate for SCt to declare congressional legislation unconstitutional? How about state legislation?

• Ought Congress and President defer to SCt’s interpretations of USC? Ought state governments do so?

• If judicial review is ever appropriate, how can it be justified? How does one’s choice of justifications (if one is persuaded by any of them) affect the way in which judiciary review is actually practiced?

• Countermajoritarian difficulty with judicial review: This involves two difficulties:

• Frustrating present majority. Courts are suppressing the will of a present majority, merely because some past majority has said that a particular course of action is impermissible. This is really an intertemporal difficulty; it applies even if judicial interpretation is purely mechanical.

• Judicial discretion. There is a discretionary element in interpretation, so that the values of (unelected) judges will enter into the political decisionmaking process. In order to respond to this difficulty, courts must rest their decision on some legitimate source of decision in order to ensure that judges are not acting like legislators. What those sources of decision should be is, of course, a matter of continuing debate.

Martin V. Hunter’s Lessee – Supreme Court review of state court decisions

• Story 1816. Upheld as constitutional § 25 of 1789 Judiciary Act, which allowed SCt to hear appeals of constitutional issues decided by highest court of a state. (court reversed contrary conclusion of Virginia Court of Appeals)§

• Background. In Marbury, SCt held that it had the power to review acts of Congress for constitutionality. In Martin, SCt confronted similar, and perhaps even more important question, of whether SCt is constitutionally authorized to review the constitutionality of state court decisions.

• Virginia’s argument. This case involved the issue of whether a particular Virginia statute conflicted with a federal treaty. The Virginia courts took the position that if litigation commenced in state courts, then it was up to the state court to say whether the state action violated the federal USC, and the SCt had no right to review whatever conclusion the state court reached.

• Holding. SCt flatly rejected Virginia courts’ view, and held that the SCt could review the constitutionality of a decision by a state’s highest court. Judiciary Act §25, giving SCt appellate jurisdiction over cases pending in state courts, is supported by letter and spirit of USC.

• Components of Story’s argument: Story started by nothing that Article III, §2 of USC gave SCt jurisdiction over all constitutional cases, regardless of their origin. Story relied on:

• structural argument that final judgment must reside somewere,

• consent argument that the American people granted this power,

1. Sovereignty argument rejected: Virginia court’s assertion that it was “sovereign” was rejected, on the grounds that the federal USC cut back upon state sovereignty in numerous respects. There was no reason to presume that state judiciaries were immune from this set of limitations.

• prudential argument that uniformity of decisions is important,

1. There is a need for uniformity in decisions throughout the nation interpreting the USC: “If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties and the USC would be different in different states . . .” The case, not court, gives jurisdiction. It is clear that state courts would hear cases that involve USC, federal laws, treaties, etc.

• Another prudential argument is to prevent forum shopping.

• Evaluation Story’s opinion:

• Ubiquity of prudential argument here gave us opportunity to begin considering whether prudential argument is ever appropriate in constitutional law.

• Story’s deference to Congress in this opinion contrasts strikingly with Marshall’s lack of deference in Marbury.

• How important is prudential argument in constitutional law? Why is it even appropriate?

• What does argument from uniformity imply about SCt’s role?

1. Is it argument against the sort of departmentalism advocated by Easterbrook, Jefferson, Madison, Jackson, and Lincoln?

2. How do claims of Cooper v. Aaron compare with those of Lincoln’s inaugural?

3. Under Meese’s departmentalist theory, how can it be flatly claimed (as Meese does at 56) that the executive branch is bound to enforce a court order? If uniformity in decision is important here, why doesn’t it justify the dictum in Cooper v. Aaron?