Is Judicial Review meant for the Federal Judicial Branch?

In Chapter 14 the textbook covered the basic understanding of the Courts and how they influence policies in the United States. It is understood that the framers designed and created the Supreme Court as an organization responsible for checking and balancing the other branches of government with the creation of article III of the constitution which establishes the federal judicial branch. However, it is clear that article III contains considerably less detail than articles I and II, which discuss the roles of Congress and the president. That being said, there are details included in article III on the role and requirements of federal judges and the federal judicial branch that are crucial to maintaining democracy within the United States government. The rest of the chapter discusses many important factors, such as the jurisdiction and organization of the federal court system, the appointment of the federal bench and its appointment process, how the Court decides on which cases they take on, and so on. An especially interesting point that the chapter raises is the issues with judicial review, as well as the outside influences on Supreme Court cases.

Judicial review is a long-established power of the Supreme Court to declare state and federal laws and actions null and void when they conflict with the Constitution. However, did the framer truly intend the Court to have this power? Many politicians (and citizens) argue no. This issue of questioning the judicial branch has become increasingly apparent, such as with cases involved in the travel ban that President Trump has moved to put in place. In January of this year, the Supreme Court announced that it would consider challenging President Trump’s latest efforts to limit travel from countries said to pose a threat to the nation’s security. This statement added an additional test of presidential power. Although the Supreme Court had allowed a second version of the ban go into effect in June after it agreed to hear the Trump administration’s appeals in two cases (i.e. Trump v. Hawaii), the Court then proceeded to dismiss those appeals in October. Solicitor General Noel J. Francisco is quoted in a New York Times article saying that “The Courts below have overridden the president’s judgments on sensitive matters of national security and foreign relations, and severely restricted the ability of this and future presidents to protect the nation.” It came into question whether or not the appeals court based its ruling on immigration statutes or the Constitution’s prohibition of religious discrimination.

While many scholars and politicians have argued over this issue of judicial power and its tensions with the president’s power, it brings up good conversation of which powers were intended for which branch of government. Presidents influence the direction of the Court by their power to nominate judges when there are vacancies, and can also file suits through the Justice Department, as well as argue cases before the Court and introduce legislation to alter the court’s organization or jurisdiction. However, if the federal judicial branch was created to check the presidential branch and congressional branch of government, how democratic is this allowed influence over the Court? While President Trump continues to influence the Court by placing judges who share similar views and policies that he does within the Supreme Court, as well as remove judges who interfere with his policies, the argument remains of how much power should be given to the president in regards to his/her influence on the federal judicial branch. Should the president continue to maintain these constitutional powers that give them some degree of influence over the Court? Should there be consideration of whether or not Judicial Review is a constitutional practice meant for the federal judicial branch?

https://www.nytimes.com/2018/01/19/us/politics/supreme-court-trump-travel-ban.htmlhttps://www.cbsnews.com/news/trump-looks-to-supreme-court-to-stop-judges-who-interfere-with-his-policies/https://www.nbcnews.com/think/opinion/trump-s-quiet-reshaping-judiciary-could-be-his-most-lasting-ncna826261https://www.politico.com/story/2017/12/04/supreme-court-trump-travel-ban-278782https://scholars.unh.edu/cgi/viewcontent.cgi?article=1254&context=law_facpub

5 Responses to "Is Judicial Review meant for the Federal Judicial Branch?"

Michael De La Cruz says:

April 22, 2018 at 5:56 pm

Hello Stephanie, this is a great post.

You have brought into question something that can potentially alter the very nature of the judicial branch. I agree with your stances on Judicial Review, and I do not believe federal courts should have the ultimate power of judicial review that the Supreme Court has.

If a judge from the state of Utah declares that a law is unconstitutional because it affects Utah more than other states, then it is nullifying the entire process that the law went though to get there even though the law was passed by legislators of the entire country. In other words, I don’t think a state should be able to nullify the decisions of our legislative body because the legislative body has more authority than the states.

By giving Judicial Review to states, it is implying that they are equal to or greater in authority than whoever passed the law. This is a dangerous precedence to set and makes our governmental system act more like a confederation rather than a federation. We need to reexamine our stances on the distribution of power, and determine if this is the route we want to take as a country.
Thomas Cody says:

April 22, 2018 at 9:26 pm

Stephanie,
Thank you for a very interesting post! I happen to disagree about whether the courts should have judicial review. I think that it is a great thing that judges who do not operate in the same world as politicians have the ability to strike down power pieces of legislation like the travel ban. With all of the gridlock with congress and every vote politicians make seemingly based on hoping for reelection, it seems like a great thing that judges without the same kind of political pressure can make swift and quick decisions about the constitutionality of laws based on their own knowledge. I think this is a great check to congressional and executive power (whether or not the founders intended it to be that way).
Brett Tivnan says:

April 25, 2018 at 3:01 pm

Hi Stephanie,
Your post was very well thought out and had strong arguments throughout. One particular piece that caught my attention was your discussion over whether or not judicial review should extend down to the federal courts, or if it should be restricted to only the Supreme Court. In a country as vast as this, many laws that are necessary to be overturned do not have to reach the Supreme Court. You seem to overlook the multitudes of extremely qualified and competent justices that serve below the Supreme Court, most of whom have just as great of an understanding of constitutional law as their peers in the Supreme Court. I believe that if there is action needed to overrule a state or federal law, it is not in any way overstepping the bounds of the judiciary branch to enact judicial review. The Judiciary Branch was created in large part to act as an impartial third party in the law-making process, which is only amplified by the harsh partisanship within the Executive and Legislative branches nowadays. Even in the case of controlling both branches, Republicans can not necessarily pass any law that they choose, as nearly anything too severe will be opposed not only by the Supreme Court, but also the Appeals Court and so on, as their entire career revolves around what is and is not constitutional.
Lastly, and this is mere nitpicking, but you mentioned in your post that Trump has been removing federal judges that do not agree with him. This is completely false and it is also entirely illegal. Federal judges are tenured for life, and the only ways around this are if the justice retires or is impeached by the House and then convicted by the Senate.
Andrew Griffin says:

April 26, 2018 at 8:51 pm

Stephanie-

Your analysis of the Supreme Court’s flaw is well-rounded. Ultimately, as you say, justices are appointed by the President, making them, by definition, undemocratic. This cannot be overstated. And the question you pose about judicial review being reserved to the federal branch is quite provoking.

Justices, however, I believe, should be appointed by the president. I think voting in justices allows them to be even more susceptible to partisanship. That is to say, what is constitutional may not be popular. If a popular politician, like Richard Nixon, for example, is caught exceeding his political authority, strong courts should be able to safely remove him from office. The rule of law must not be akin to the “tyranny of the majority.”

-Drew
Andrew Griffin says:

April 26, 2018 at 8:51 pm

Stephanie-

Your analysis of the Supreme Court’s flaw is well-rounded. Ultimately, as you say, justices are appointed by the President, making them, by definition, undemocratic. This cannot be overstated. And the question you pose about judicial review being reserved to the federal branch is quite provoking.

Justices, however, I believe, should be appointed by the president. I think voting in justices allows them to be even more susceptible to partisanship. That is to say, what is constitutional may not be popular. If a popular politician, like Richard Nixon, for example, is caught exceeding his political authority, strong courts should be able to safely remove him from office. The rule of law must not be akin to the “tyranny of the majority.”

-Drew

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