judicialpoweranditslimits.docVIP

Judicial Power and its limits Judicial Power Marbury – cited as establishing judicial review; at least lays the logical framework for it, whether it establishes it is a different matter Article III grant of jurisdiction has been read in accord with Marbury, so that jurisdiction is meant to only be original in one category, and only appellate in the other It is emphatically the process of the judiciary to say what the law is. Marbury. But open question under Marbury whether courts have special competence Could read this broadly: the judiciary and no one else gets to decide what the law is, and once the judiciary so decides, then everyone else has to respect that. Cooper v. Aaron Courts are uniquely positioned to say what the law means Federal judiciary is supreme in exposition of the Constitution, claims that Marbury established this, SC interpretations of Constitution are “supreme law of land” which officers are bound to support by the oaths they take. Cooper. Might have been product of a unique historical situation: Governor Faubus claimed that, since Arkansas wasn’t a party to Brown, Arkansas wasn’t bound by desegregation ruling Or, more narrowly: judges are also under a duty to uphold the constitution, and the constitution may apply to the cases and controversies before them; are they to disregard it and just follow statute? – tail of Marbury Also, one of the things that courts routinely do is look to the law in front of them and decide what law applies So, judges are better at adjudicating cases, and their decisions are final as to those cases; don’t interfere w/ court order. Doesn’t mean that we need to accept their decisions as a political rule. Lincoln view Allows the members of other branches to be constitutional judges or their own powers Judicial review might be undemocratic, in that it’s anti-majoritarian Also, might contribute to the decay of other branches; allows legislatures, citizens, and voters to exempt selves from task of constitutional deli