NCJ Number
47638
Date Published
1977
Length
29 pages
Annotation
A CRITIQUE IS UNDERTAKEN OF THE REASONS JUSTIFYING AND GOVERNING JUDICIAL REVIEW AS EXERCISED BY THE U.S. SUPREME COURT.
Abstract
THE DISTINGUISHING FEATURE OF JUDICIAL DECISIONMAKING IN THE UNITED STATES IS THE POWER OF THE FEDERAL JUDICIARY AND ULTIMATELY THE SUPREME COURT TO JUDGE WITH FINALITY THE CONSTITUTIONALITY NOT SIMPLY OF STATE STATUTES BUT ALSO OF THE ACTS OF THE COORDINATE BRANCHES OF THE FEDERAL GOVERNMENT. THIS WOULD NOT BE A PARTICULARLY IMPORTANT POWER IF THE CONSTITUTION WERE A CLEAR, PRECISE, AND ALL-INCLUSIVE LEGAL CODE. BUT CONSTITUTIONAL LAW IS NOT STATIC. THIS IS NOT TO SAY THAT THE COURT PLAYS A ROLE IN POLICYMAKING ONLY WHEN IT IS EXERCISING ITS POWER TO APPROVE OR DISAPPROVE OF THE CONSTITUTIONALITY OF A STATUTE. ITS POWER OF STATUTORY CONSTRUCTION IS ALSO OF GREAT IMPORTANCE. BUT THAT POWER WHICH MAKES IT A UNIQUELY POLITICAL AGENCY IS ITS JUDICIAL REVIEW FUNCTION. IN THE AMERICAN CONTEXT, JUDICIAL REVIEW REFERS TO THE POWER OF THE COURT TO INTERPRET THE CONSTITUTION WITH RESPECT TO THE ACTIONS OF THE PRESIDENT OR THE CONGRESS AND SET THEM ASIDE IF IT CONCLUDES THAT THEY VIOLATE THE FUNDAMENTAL CHARTER. THE LEGAL, TEXTUAL, AND HISTORICAL FOUNDATIONS FOR THE EXERCISE OF JUDICIAL REVIEW ARE DISCUSSED. FUNCTIONAL REASONS ARE ALSO CONSIDERED; IT IS ARGUED THAT BECAUSE AMERICANS HAVE ALWAYS ASPIRED TO A 'HIGHER LAW' TRADITION, AND BECAUSE THE EXISTENCE OF SUCH A WRITTEN HIGHER LAW PRESUPPOSES A FINAL ARBITER, THAT THE SUPREME COURT BECAME THE LOGICAL GUARDIAN OF THIS POWER, NOW KNOWN AS JUDICIAL REVIEW. THE CRUCIAL QUESTION THEN BECOMES NOT WHETHER THE POWER OF CONSTITUTIONAL CONSTRUCTION SHOULD BE VESTED IN THE COURT, BUT RATHER WHAT SHOULD BE THE APPROPRIATE SCOPE OF THE COURT'S EXERCISE OF THAT POWER. PRIMARY AMONG THE EXTERNAL LIMITATIONS BY WHICH THE OTHER BRANCHES EXERCISE SOME DEGREE OF CONTROL OVER THE COURT'S DECISIONMAKING IS THE POWER OF APPOINTMENT AND REMOVAL. THE SECOND EXTERNAL CONTROL CONCERNS THE SIZE OF THE COURT; THE COURT MAY BE EXPANDED OR CONTRACTED AT THE DISCRETION OF THE CONGRESS AND THE PRESIDENT. CONGRESS POSSESSES YET ONE MORE WAY BY WHICH IT MAY COERCE AN OVERLY AMBITIOUS SUPREME COURT, ORIGINAL JURISDICTION -- THOSE CASES WHICH THE COURT MAY HEAR IN A TRIAL OF FIRST INSTANCE -IS SPECIFIED IN THE CONSTITUTION AND IS VERY LIMITED; IT CANNOT BE EXPANDED. ITS APPELLATE JURISDICTION, HOWEVER, HAS PROVEN TO BE OF MUCH MORE IMPORTANCE; IT IS NOT EXCLUSIVE AND CAN BE EXPANDED OR CONTRACTED BY CONGRESS. THE PRESIDENT HAS AN EVEN MORE DIRECT MECHANISM FOR CONTROLLING JUDICIAL POLICYMAKING. THE COURT HAS NO POWER TO OVERSEE THE EXECUTION OF ITS OWN DECISIONS; THIS IS THE RESPONSIBILITY OF THE PRESIDENT. RECOGNIZING ITS POLITICAL LIMITS, THE COURT HAS DEVELOPED CERTAIN DOCTRINES WHOSE CHIEF CONTENT IS A GENERALIZATION ON THE TIMING AND SCOPE OF THE EXERCISE OF THE JUDICIAL FUNCTION. THESE DOCTRINES ARE OF TWO SORTS; FIRST, THERE ARE DOCTRINES WHICH ALLOW THE COURT TO REFUSE TO HEAR A GIVEN CASE AT ALL; AND SECOND, THE COURT HAS A SET OF RULES WHICH ALLOW IT TO REACH A DECISION ON THE NARROWEST OF GROUNDS. THESE DOCTRINES AND RULES ARE DISCUSSED, AMONG THEM THE CASE AND CONTROVERSY RULE, THE ADVISORY OPINIONS DOCTRINE, THE STANDING TO SUE RULE, AND THE POLITICAL QUESTION DOCTRINE. RELATIVE COURT CASES AND DECISIONS ARE REFERENCED. (KBL)