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Judicial Review Juridical review the authority to declare laws or actions of government officials unconstitutional the tool that courts used to wield power. When courts declare a law or action unconstitutional, they not only void that particular law or action, but they also might put the issue on the public agenda, and they might speed up or slow down the pace of change in government policies. When the Supreme Court declared a Texas abortion law unconstitutional in Roe v. Wade in 1973, the Court put abortion on public agenda.
The issue had not been a national controversy before the decision. The Court used juridical review as a catalyst to speed up change in the desegregation cases in 1950 s. At the time president Eisenhower was not inclined to act, and although many members of Congress were, they were unable to act because the houses were dominated by southerners who, as committee chairs, blocked civil rights legislation. The Court broke the logjam.
The Court used juridical review as a brake to slow down change in the business regulation cases in the first third of the twentieth century. The Court delayed some policies for several decades. Juridical review, an American contribution to government, was for years unique to this country. It is now used in numerous other countries but not as extensively or as effectively as in the United States. By using juridical review to play a strong role in government, the Court has contradicted the Founders expectation that the judiciary would be the weakest branch. Although it has been the weakest at times, it has been the strongest at other times.
Arguably, these include some years during the early nineteenth century, when the Court established national dominance; the late nineteenth century and early twentieth century, when the Court thwarted efforts to regulate business; and the 1950 s and early 1960 s, when the Court extended civil liberties and rights. The 1803 landmark case, known commonly as Marbury v. Madison, was not and is not the final guide concerning Judicial Review and the role of the judicial branch as then Chief Justice Marshall had intended. It was merely the beginning of a tradition of a reasonable dispute regarding: democratic values, the separation of federal powers, and the proper role of the judiciary. Given the specific, but inevitably inconclusive arguments, this debate continues even today. It would be difficult to assume that Marshall was aware of the tremendously broad and vast historical impact that his clever resolution of a political squabble of his day would bear upon the U.
S. judiciary. His reasoning, borne out of the earliest days of the newly formed nation and its revolutionary constitution, revolved around two basic arguments in his declaration of the supremacy of the judiciary. The first argument was derived from his treatment of the Constitution as law, a position that has been widely disputed. Marshall concluded that when a Legislature's law conflicts with a Constitutional 'law', it is the "essence" of the judiciaries duty to determine which shall prevail. In his second argument, he presents two opposing positions between which "there is no middle ground. " The Constitution, he contends, is either a supreme law that is not changeable by the legislature - any acts by the legislature inconsistent with the Constitution are void, OR the constitution is changeable by the legislature - in which case any attempt at a written constitution is futile.
Although relatively independent, the judiciary is part of the political process and is sensitive to others in the process. Ultimately, it is responsive to the president and Congress at least to one of these and to the majority of the public. Thus, in most cases, decisions by the courts reflect the attitudes of society. Bibliography: 1. Rossiter, Clinton, ed. The Federalist Papers, by Alexander Hamilton, James Madison, and John Jay.
New York, New York: Mentor, 1999. 2. Wilson, James. American Government: Institutions and Policies. 7 th ed. Boston, Houghton Mifflin, 1998. 3.
Carp, Robert A. , and Ronald Stidham. Judicial Process in America. 4 th ed. Washington, D. C. : CQ Press, 1998. 4. Meador, Daniel J.
American Courts. St. Paul, Minnesota: West Publishing Co. , 1999. 5. Rowland, C. K. Where You Stand Depends on Who Sits.
Journal of Politics 53, Feb. 1991, pp. 175 - 185. 6. Harold W. Chase, Federal Judges. Minneapolis: University of Minnesota Press, 1990.
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