Judicial Review

On the surface, it seems that determining how much power courts have would be a simple task. However, history has proven this to be false. The courts have been viewed in many different ways through out the history of our country. There are three common views of court power that are important for modern scholars of the court system. Those who believe courts have little power to cause social change are said to adhere to the Constrained Court view. Those who believe courts have a great deal of power to cause social change are said to adhere to the Dynamic Court view. The final, and youngest, take on court power combines aspects of the Constrained and Dynamic views into what I shall call the Condition Dependent Court view of power.

Judicial Branch is established under Article III of the Constitution. It was created to be the weakest of all three branches of government. Each branch has its own characteristics, but what distinguishes this branch from other two is that Judiciary is passive. It cannot act until someone brings case in front of them. Even if some law or act is unconstitutional, courts are powerless to do anything on their own. Contrary to Judiciary, other two branches are active, and have power to attack other subjects.

The doctrine of judicial independence rests on three concepts. The first one is the security of tenure of office which is supposed to guarantee judicial officers freedom from the interferences by the parliament or the executive. The doctrine requires

With the young nation of America entered into the 19th century, there were still major issues when it came to the balance of powers of the different government branches. The status of judicial review in the Supreme Court was never pressed upon or given any real structure to. The power of judicial review had appeared many times in history before the set up of the Supreme Court as, in England, Chief Justice of the Common Pleas Sir Edward Coke made the originated the idea . During the ruling of the case of Dr. Bonham’s Case, Coke found that the London College of Physicians had no right to levy fines against anyone who violated their rules. He would later go on to state that, “no person should be a judge in his own case” (Fletcher 12). The act was revolutionary at the time as it set the notion of that an official body of government was needed to give fair governess to the people. The idea would pop up once in a while in events such as the Constitutional Convention where records that were kept by the textbook University of Chicago Law Review saw that “13 out of the 15 delegates made statements that were in support of the idea of judicial review” (Prakash 123). The interesting part about the quote is that it states that the idea of judicial review was in place in America many years before the actually case of Marbury v. Madison. Even in the Federalist Papers No. 78 which was published in May 28, 1788, by Alexander Hamilton, went into lengthy discussion about judicial review. In

The American concept of democracy provides that no branch of government shall be more powerful and uncontrolled than the other branches (Lutzenberger, 2012). Judicial review is the power of the courts to oversee and prevent the legislative and executive branches from becoming abusive. Through this power, the courts interpret the meaning of laws and their application. They can invalidate a law, which they deem inconsistent with the US Constitution. They can also change the application of the law when interpreting it. Although the Constitution does not explicitly mention this power, the courts infer it from the provisions on the judicial branch in the Constitution. This inference was first made in 1803 in the Marbury v Madison case. The court declared the existence of the power and that it was for the exclusive use of the courts. They use it to interpret the intents of the Constitution on legal issues submitted to them for decision (Lutzenberger).

Judicial Review – the power of the Supreme Court to say whether the federal, state, or local law or government action goes against the Constitution.

a. Judicial activism is a judicial philosophy that calls for the court to play an active role in determining national policies and to apply the Constitution to the social and political questions of their present day.

Nevertheless, some critics argue that the judidicary, some critics argue that the judiciary are the final arbiters of what is meant by the principle of separation of powers, which therefore provides the judiciary with subordinate levels of power. Moreover Chief Justice Hughes concluding that the ‘Constitution is what the judges say it is’ due to ability to interpret the constitution. In America, although Congress may new laws affecting courts, ultimately judges decide.

The concept of Judicial Review is to review cases using the power of the courts over the actions of the executive and legislative branches to deem them invalid or unconstitutional. The Supreme Court has a unique position because of its broad commitment to the American People and its Constitution. The Court's principles on judicial review are that The Constitution is the supreme law of the country, they have ultimate authority on constitutional matters, and they must vote against any law that clashes with the constitution. One of the most significant cases that brought forth such convictions was the case of Marbury vs. Madison in 1803. Which was a case that brought many complications because when Jefferson ordered his Secretary of State James

-The power of the judicial review is “A court’s power to review statutes to decide if they conform to the U.S. or state constitutions”. It is important to our legal system to have the power of the judicial review as a tool to the disposal of the courts when conflicts arise within the law or constitution.

a. Define judicial review. Judicial review is a power held in the Supreme Court to declare legislation, laws, bills, acts, and executive orders unconstitutional.

Judicial Review is one of the court's most important powers and arguably the most powerful one that this branch or any branch has. This is a power that allows the supreme court to make legislative and executive actions subject to review and possible invalidation. The power of Judicial Review was earned in the Supreme Court Case Marbury v. Madison. In this case it was decided that James Madison’s decisions to prevent William Marbury from taking office as justice of the peace was unconstitutional, this has extended the power and now created what is known as judicial review. This has continued to affect laws and acts presently such as in the case of United States v. Nixon when Nixon was denied the powers of absolute executive privilege due to

Since the establishment of our government the Judiciary branch has been intended to be the passive or least dangerous of the three branches; this can be seen in the Federalist Papers, said by Alexander Hamilton, “The Judiciary, on the contrary, has no influence over either the sword or the purse” (Woll 373). This was soon thwarted when the power of judicial review came into play. Judicial review gave the Supreme Court the power it needed to be as influential and powerful as the other two branches. Throughout history judicial has been key in many controversial and important court case, beginning with Marbury vs. Madison, which established judicial review, to many other case including McCulloch vs. Maryland, Plessy vs. Ferguson, Roe vs. Wade,

Judicial Review is when the Supreme Court decides whether something is constitutional or not. The Supreme Court, not only hears cases to determine if they are constitutional or unconstitutional. They also decide whether laws and decisions created by the Legislative and Executive branches are constitutional or not.

Judicial Independence is fundamental to democracy, it serves as a guarantor of the rule of law and separation of power . However, nothing is perfect. There is some defect regarding to the judicial independence and solution must be made to curb the weakness.