Whittington Judicial Review

Judicial Review: A distinctive feature of the American constitutional system that allows courts to determine the constitutionality of legislative provisions and enforce higher laws against all government officials.
Key Historical Context: The lack of explicit incorporation of judicial review in texts of U.S. constitutions, alongside the normalizing of judicial power in other countries in the 20th century.
Article III: U.S. Constitution provides limited description of federal judicial power, vesting "judicial power" into federal courts but leaving the scope implicit.
Founding Perspective: The Founding generation did not face significant backlash against the establishment of judicial review; courts operated without widespread concern over their authority to declare legislative acts unconstitutional.

Definition: The power of courts to interpret the constitution and to refuse enforcement of legislation in conflict with it. The term is of modern origin while the practice dates back to the early republic.
Origin of the Term: Edward Corwin, in 1910, coined "judicial review" to describe how courts enforce constitutional law against legislative actions.
Nature of Power: Emphasizes that legislatures are bound by laws and are inferior to the Constitution, with courts acting as enforcers.

Horizontal Judicial Review: U.S. Supreme Court reviews federal officials' actions, primarily Congress.
Vertical Judicial Review: U.S. Supreme Court evaluates actions of state and local governments.
Historical Activity: The Supreme Court has been more active in exercise of vertical judicial review, frequently striking down state statutes, often controversially. Examples include:
- Fletcher v. Peck (1810): Court nullified a Georgia statute impacting land grants, establishing precedent for reviewing state laws.
- Brown v. Board of Education (1954): Struck down segregation.
- Roe v. Wade (1973): Overturned restrictive abortion laws.

Federalism: The supremacy clause of the U.S. Constitution asserts federal laws overpower state laws, supported by Section 25 of the Judiciary Act of 1789, allowing appeals to the Supreme Court.
Judicial Authority: Addressed challenges from figures like Spencer Roane who argued for state court autonomy in interpreting federal constitutions.

Perceptions: By the early 20th century, judicial review was regarded as a conservative tool favoring property rights and corporations. Critics suggested restricting it.
Changing Views: By the late 1940s, the left began to see the potential of judicial review to uphold rights, especially post-fascism, leading to liberal advocacy for judicial activism, notably during the Warren Court era.
International Context: Other democracies witnessed shifts towards judicial review, contrasting with the British model emphasizing parliamentary supremacy.

Normative Debate: Earlier debates focused on the conflict between rights and democracy, emphasizing how courts could justify their counter-majoritarian role.
Four General Approaches:
1. Democratic Authorization: Justifies judicial review based on adherence to the original meaning of the Constitution (e.g., through originalism).
2. Limited Exceptionality: Judicial review as a tool for exceptional circumstances only (James Bradley Thayer's views).
3. Process Bolstering: Courts monitor and enhance democratic processes rather than obstruct them (John Hart Ely’s theory).
4. Substantive Values Priority: Courts should prioritize individual rights over democratic processes (Ronald Dworkin’s perspective).

Legal Reasoning: Judges rely on intersections of constitutional sources, governance issues, and civic engagement to exercise review, though legal reasoning is not always straightforward or mechanical. Outcomes are influenced not just by law, but by judges' personal and political beliefs.
Political Perspectives: The Supreme Court functions as a political institution where justices’ decisions reflect their values. Political affiliations often characterize justices' decisions.

Empirical Analysis: The impact of judicial reviews is generally nuanced. Early literature suggests low implementation success of some high-profile decisions (e.g., school desegregation).
Resistance: Judicial decisions may face local resistance, undermining the intended effects even in landmark cases, such as public school religious activities.
Costs and Outcomes: Research indicates that while judicial reviews may not impact outcomes significantly on their own, they shape legislative behavior by raising awareness and formulating public opinions around pivotal rulings.

Judicial review's prominence: While it remains a key practice in American democracy, it is coupled with political elements. The legitimacy and effect of judicial review can fluctuate with the political climate and societal attitudes towards judicial authority.
Continuing Discourse: The study of judicial review remains vital as scholars adapt to evolving political landscapes, the need for empirical understanding, and integration of judicial practices beyond the courts into discussions on constitutionalism.