Juidical Review

.. the rights of the criminally accused”. The vacated seat of Earl Warren led to the appointment of Warren Burger to the chief justice seat by Richard Nixon; one of four appointments that Nixon had the opportunity to make. As Nixon had hoped, the Burger court was far more conservative than the Warren court, yet they still handed down decisions which legalized abortion, legitimized school busing, and provided greater protection for women under the Fourteenth Amendment of the Constitution. The court today has become even more conservative than the days of the Burger court, with the appointment of William Rehnquist to the chief justice post.

The appointments of David Suter and Clarence Thomas have strengthened the conservative block in the court, replacing strong liberal voices such as William Brennan and Thurgood Marshall (Walker/Epstien, 20-21). The explanation and thorough history of the Supreme Court and its justices is necessary when discussing the power of judicial review because it depends in a large way on the make-up of the court as to how their power is utilized. This is evident during the New Deal era when the power of the court under judicial review was frequently applied to a plethora of legislation passed by Congress. The conservative appointments in the late 1800’s and early 1900’s obviously affected the court’s decisions during the New Deal era because of their conservative roots. The depression era and the election of a Democrat to the White House caused a great deal of disagreement over what the government could and could not regulate. The Republican president appointments led to a great deal of judicial review being utilized during the four terms that Roosevelt occupied the presidency. The concept of judicial review has been an item of much debate ever since Marshall invoked its power in 1803.

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In fact, the notion that the judiciary would have the power to review and overturn an act of Congress was discussed at the Constitutional Convention, but the framers failed to include this power in the Constitution by not explicitly stating it in the document. This is one of five debates concerning the power of judicial review that David Adamany outlines. Adamany writes that the framers intent debate is probably one of the oldest arguments concerning judicial review, and notes that even though over half of the delegates to the Constitutional Convention approved of the idea, yet it was not explicitly written into the document because it was another possible area of division for the convention delegates. However, it is interesting to add that Alexander Hamilton defended judicial review; “One branch of government must safeguard the Constitution, and the courts are i! n the best position to do this (Walker/Epstein, 11).” The second debate which Adamany outlines is entitled judicial restraint. This debate is based on the premise that the courts should not involve themselves with the other branches of government whatsoever. However, this argument is not taken seriously since our system of checks and balances requires some involvement in the other branches of government by the courts.

This leads to the next debate which Adamany outlines, entitled democratic checks. Here it is argued that judicial review is defensible because it is still subject to those checks and balances by the other branches of government. Adamany lists some possible recourses that other branches still have on the courts, which we have already discussed as being court curbing decisions; changing the size of the court, removing the court’s appellate jurisdiction, and altering the court’s membership. One decision curbing remedy which was mentioned involved passing legislation such as a Constitutional Amendment. Public Opinion is the fourth debate which Adamany discusses. The argument here is that court decisions are usually in tune with public opinion, which lends to the court’s legitimacy and conferring power.

He notes that if the court upholds legislation, it is accepting governmental policies. The final argument which Adamany discusses concerning judicial review is labeled as the role of the court debate. This argument focuses on what exactly should the role of the court be. Those who support judicial review say that it is necessary because courts are designed to protect minority rights. Also, since judges are not elected, it is argued that they are able to protect minority rights through their decisions, as opposed to elected officials who design legislation and decisions to support the majority (Walker/Epstein, 10-14).

The concept of judicial review has been debated from various angles and viewpoints for nearly two hundred years. In my opinion, judicial review is necessary in our system of government because it allows the Judicial system a check on the other two branches of government. Although this check was not explicitly stated in the Constitution, I feel that it was within the framers intent for the Judiciary to act in this capacity. Furthermore, the Judiciary has abided by some unwritten rules so as not to abuse their power under judicial review, and these rules are known as the canons of jurisprudence. These rules call for the judiciary to only rule on a Constitutional issue when absolutely necessary, define the scope of the limiting agent only to the case at hand, and only address a Constitutional issue if there is no other alternative (Peltason, 24).

Although judicial review has presented our judiciary with some troubled and anxious times, I believe that it has done more good than bad, and is an essential part of our government and democracy. Judicial review lends legitimacy to the Supreme Court, but more importantly, it protects minority rights. This is accomplished because the judiciary is the only non-elected branch of our government, so it is able to protect minority rights, while the other two branches are supporting majority rights in order to get re-elected. Judicial review has the power to make our system of democracy fair for all of our citizens. Works Cited PELTASON, C.W. 1988. “Understanding the Constitution.” New York: Abbey Road Press.

POLLACK, C. 1966. “The Constitution and the U.S. Supreme Court.” Cleveland: World Publishing Company. WALKER, Thomas, and Lee Epstein.

1933 “The Supreme Court of the United States: An Introduction.” New York: St. Martin’s Press. THE AWESOME POWER OF NINE JUSTICES: A DISCUSSION OF JUDICIAL REVIEW.


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