Lesson 6
Judicial Review
(In conjunction
with the Judicial Track of the Checks and Balances Project)
By Millie Aulbur,
Director of Law-Related Education, The Missouri Bar
Description: This lesson plan will reinforce the concept of judicial review
discussed in third judicial telecast.
Objectives:
- To reinforce the concepts discussed in the telecast on
judicial review.
- To demonstrate how judicial review is an important
function of the courts in a governmental system founded on the principles of
separation of powers and checks and balances..
Suggested grade levels: 9-12
Materials needed: Handouts for and access to either
a writing board or a flip chart.
Procedures:
1.
Distribute the student handout—The
Establishment of Judicial Review.
Have the students read it silently or read aloud as a class. This article
provides additional background on judicial review as well as repeating some of
the more important information covered earlier. (Most of this material is
reprinted from Constitutional Rights Foundation (www.crf-usa.org)
Bill of Rights
online lesson materials. Edits, additions, discussion questions and student
handouts are provided by The Missouri Bar.
2.
Do the discussion question at the end of the handout.
3.
Distribute the student handout—Consider
This…, or make it
into a transparency. Do the discussion questions.
4.
Debrief:
a.
What did you
learn? What surprised you?
b.
What do
still need to know?
c.
How will you
use this information?
5.
Enrichment: Distribute the student handout—How
do Judges Interpret the Constitution,
or make it into a transparency. Have student research historical cases like
Brown v. Board of Education
or Roe v. Wade
or Hazelwood v. Kuhlmeier,
or recent cases such as Vernonia v.
Acton or
Kelo v. City of New London,
and consider which of the methods of interpreting the Constitution the Court
seemed to be leaning toward in those cases. (See also We the People: The
Citizen and the Constitution, Level III, Lesson 21.)
Student
Handout
The Establishment of Judicial Review
The United States Constitution says nothing about the one job the Supreme
Court of the United States is most known for today. That is the power to review
federal and state laws to determine whether or not they are constitutional. On
the other hand, the Missouri Constitution specifically grants the power of
judicial review to Missouri Courts:
The supreme court shall have exclusive appellate jurisdiction in all cases
involving the validity…of a statute or provision of the constitution of this
state… (Article V, Section 3.)
Some scholars have argued that the framers assumed that the Supreme Court
would have this power without having to spell it out in the Constitution. They
cite, for example, Alexander Hamilton in The Federalist Papers, a series
of articles published to support the ratification of the Constitution. He wrote:
The interpretation of the laws is the proper and peculiar province of the
courts. A constitution is, in fact, and must be regarded by judges, as
fundamental law. It therefore belongs to them to ascertain its meaning, as well
as the meaning of any particular act proceeding from the legislative body.
(See Federalist Paper #78)
In the 1803 case of Marbury v. Madison, John Marshall, the fourth
Chief Justice of the Supreme Court of the United States, used judicial review to
declare an act of Congress null and void. In that opinion, John Marshall wrote,
“The powers of the legislature are defined and limited; and that those limits
may not be mistaken or forgotten, the Constitution is written.” This was the
first time that the judiciary truly asserted its independence and power.
While judicial review expanded the power of the judiciary, it also placed
judges in a new role. In deciding whether a governmental act meets
constitutional standards, judges had to interpret the meaning of the
Constitution. Their interpretation, even if based on law and reason, can run
contrary to the views of legislators, presidents, or the public. (See the
handout—Ways to Interpret the Constitution.)
How Judicial Review Has Evolved Through the Years
Ever since the time of John Marshall, the judiciary has been embroiled in
political squabbles, some that have threatened its independence. In fact, the
famous case of Marbury v. Madison itself began when President Adams tried
to appoint a loyal Federalist Party man to a judgeship, and the new president
Jefferson rejected the appointment favoring judges from his own political
viewpoint.
President Andrew Jackson quarreled with Chief Justice Marshall over the
court’s decision in the case of Worcester v. Georgia. Jackson reportedly
said, “Well, John Marshall has made his decision, now let him enforce it.”
Though it is likely that Jackson never really used these words, the statement
illustrates one of the real limits on judicial power. It must rely on the other
branches of government to enforce its rulings.
Democratic President Franklin Roosevelt, frustrated with Supreme Court
actions striking down much of his New Deal legislation, proposed a plan to
increase the number of justices so that his appointees would be able to outvote
the sitting justices. He also once prepared a radio address to tell the American
people why he would not comply with a Supreme Court ruling, but at the last
minute the court voted in his favor. Roosevelt’s proposed plan to “pack” the
Supreme Court set off a firestorm of public criticism, even from his own
supporters. Viewed as a naked attack on the independence of the judiciary, no
one ever proposed such a strategy again. (Later, the number of Supreme Court
Justices was set at nine by federal statute.)
At times the court has also made decisions that have run contrary to the will
of Congress. Under the Constitution, Congress has numerous checks that it can
use against the judiciary. First, it has control over funding the federal
judiciary’s budget. Though it cannot lower judges’ salaries during their terms
in office, it can reduce staff, lower operating costs, and withhold money for
court-ordered actions. Second, Congress can propose new laws or constitutional
amendments to override specific court decisions. Third, it can restrict the
kinds of cases that can be appealed to the federal courts. In fact, though
unlikely, Congress has the power to completely abolish the lower federal courts.
Over the last five decades, America’s independent judiciary has done much to
shape our history. Through its decisions, the court extended voting rights,
abolished laws legalizing racial segregation, recognized the rights of those
accused of crime, and expanded the rights of free speech and the press. While
many of these decisions became accepted by the vast majority of Americans,
others have raised ongoing controversy. Court decisions guaranteeing a woman’s
right to an abortion, banning prayers and Bible reading in schools, excluding
illegally seized evidence in criminal trials, and permitting the burning of the
American flag have led to charges that the court has gone too far in
interpreting the Constitution.
These decisions have given rise to new calls for limiting the power of the
judiciary. In recent years, Congress has passed legislation limiting the
discretion federal judges have in determining sentences in criminal trials.
Proposals have been made to limit the jurisdiction of federal courts in certain
matters. The Senate has also shown its willingness to carefully scrutinize
presidential appointments to the Supreme Court and to the lower federal courts
under its “advice and consent” power. The trend toward limiting the power of the
judiciary can also be seen at the state level.
Some worry that if these trends continue, the delicate balance between the
powers of the judiciary and the other branches of government in our system could
be undone. Others fear that these trends could compromise judicial independence
making judges less likely to make decisions based on law and conscience and more
likely to make decisions that serve political ends.
As we have seen, these debates are not new to our history. It is likely that
they will continue into the new millennium and beyond.
For Discussion
1.
Do you agree with Hamilton and others that “it only makes sense” in a
system of checks and balances that a court can declare acts of the legislative
and executive branches null and void? Why or why not?
- Do you think judicial review is consistent with the
principle of representative democracy? Why or why not?
Student Handout
Consider This…
1.
One of the recurring criticisms at both the federal and some state levels
is that an unelected body—the Supreme Court—overturns the actions of the
legislative an executive branches and, therefore, goes against the majority of
the people. Abraham Lincoln believed that there were certain things that the
majority should not be able to do—things that violate natural rights, which is
the purpose of the Constitution—to protect our natural rights.
React: Should the courts be
able to overturn the “will of the majority”? Do you consider this
undemocratic? Which is most consistent with how our Founders felt—majority rule
or protection of minority rights?
2.
In a recent column—Reviewing Judicial Review—George Will was defending
judicial review and ended his column with this:
Finally, since Jefferson, no significant politician has flatly opposed judicial
review. Even when the Supreme Court was most athwart public opinion—striking
down New Deal legislation—voters sharply rebuked President Roosevelt for his
plan to “pack” the court by enlarging it. So this is another powerful argument
for the compatibility of judicial review with American’s democratic values: the
demos—the public—supports it.
React: Do you agree with
George Will? Why or why not? Do you think the public supports judicial
review? Do you think the “public” is aware of concept of judicial review?
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