Juidical Review In 1717, Bishop Hoadly told King George I, “Whoever hath an absolute authority to interpret written or spoken laws; it is he who is truly the lawgiver to all intents and purposes and not the person who wrote or spoke them (Pollack, 153).” Early sentiments similar these have blossomed in to a large scale debate over which branch of our government has the power to overturn laws that do not follow the foundations of our democratic system; the constitution. In this paper I will discuss the history of judicial review in respect to the U.S. Supreme Court, but more importantly, I will discuss the impact that judicial review has had on the Supreme Court and our system of government and the various arguments behind this power that the Supreme Court now possesses. The first instance that the Supreme Court showed its power under the cloak of judicial review was in the legendary case of Marbury v. Madison. In the confusion of leaving office, President John Adams failed to have delivered four commissions which he had made before having to surrender his power to Thomas Jefferson.
In fact, the responsibility of delivering the commissions was left in the hands of John Marshall, the former Secretary of State under Adams, who was now the chief justice of the Supreme Court. When Jefferson took office, he refused to have the commissions delivered, and the case was filed by Marbury and the three other marshals that failed to receive their commissions. As the Chief Justice, Marshall wrote the opinion of the court by answering three questions concerning the case; did Marbury have a right to the commission, did Marbury have a remedy to receive the commission, and was a writ of mandamus the proper remedy to receive the commission. Marshall answ! ered yes to the first two questions, but said that the Supreme Court could not give him the commission he was entitled to through a writ of mandamus. Through this decision, Marshall not only asserted the power of the court with judicial review, but avoided a potentially devastating confrontation with the presidency in the early years of our fledgling government.
Marshall was able to establish the judiciary’s role in our government with this decision by answering the question that if the courts do not have this power, who does. The significance of the Marbury v. Madison decision is far reaching. Before the 1803 decision, the court had never really been a factor in our government, so much that the 1802 session was terminated by President Jefferson. The case established the Supreme Court’s authority to review and strike down governmental actions that did not follow the Constitution.
Marshall believed that although the framers of the Constitution did not explicitly write the power of judicial review into the constitution, it was what the framers intended. I will discuss this argument in greater detail later. After the Marbury v. Madison decision, the Marshall court enjoyed a new found power, but rarely found occasion to use it since most of the cases that were heard were rather trivial private law disputes. However, the court was able to hand down a number of important opinions interpreting various aspects of the Constitution.
After Marshall’s death in 1835, Roger B. Taney ascended to the chief justiceship. Taney, unlike Marshall, was a Jacksonian Democrat, and a strong supporter of President Jackson and his view of state’s rights. It was Taney who passed down the infamous 1857 decision in Dredd Scott v. Sandford, which displayed the court’s belief that blacks had no real Constitutional status and that the court strongly supported state’s rights.
Furthermore, the Dredd Scott decision worsened conditions for nationalists, and inevitably pushed our nation closer to civil war. After the war had ended, the court again found itself busy with a large caseload due to the many commercial and private disputes raised by the war. Chief justices Salmon Chase and Morrison Waite helped to reestablish Congressional power over the defeated South, but had little chance to use its power of judicial review during this time or repair. The close of the war brought the Industrial Revolution and new found problems to our country and government. Two questions which found their way before the Supreme Court were whether or not Congress had the authority regulate commerce and the power of the states to impose regulations on business.
In addition to these two problems, the court also found itself involved in protecting commercial interests from governmental regulation. This was in large part accomplished by the appointment of many justices by Republican presidents who supported a free market economy. This continued through the New Deal era, when the court became heavily involved in government by overturning more than 130 regulatory laws which it stated violated various sections of the Constitution. This was the heyday of judicial review for the Supreme Court. Furthermore, the court passed landmark legislation in civil rights with the “separate but equal” clause being passed down in Plessy v. Ferguson (Walker/Epstein, 17-19).
Under Roosevelt the court struck down a great deal of legislation aimed at regulating powerful trusts and holding companies. Because there was so much legislation which was struck down by the court as being unconstitutional, Roosevelt threatened to add one new justice for each one that was over 70 and still sitting on the bench. Although Roosevelt never carried through with his idea, the court’s behavior changed so that some of the New Deal legislation that was originally struck down was eventually passed. This change of heart on behalf of the court is now referred to as “the switch in time that saved nine” (Walker/Epstein, 19). The membership of the court changed dramatically under Roosevelt due to the fact that the old justices were retiring and eight new were appointed. These new justices placed a greater emphasis on civil rights, liberties, and the concept of justice.
The appointment of Earl Warren in 1953 to the position of chief justice only sharpened what was already a “liberal” court. Judicial review was used during this important time in decisions such as Brown v. Board of Education, Baker v. Carr, Griswold v. Connecticut, and Miranda v. Arizona. Although many ground breaking decisions were passed down under the Warren court, he and his court were heavily scrutinized for “protecting …