How judicial review limits elected branches

UNIT 2 · INSTITUTIONS

CHAPTER 15

The Supreme Court has no power to introduce a bill, command an agency, or raise a tax. Its influence comes from deciding legal disputes and treating the Constitution as superior law when government action conflicts with it. That authority can invalidate choices made by elected officials, which is why judicial review is both a constitutional tool and a continuing argument about democratic power.

Two founding sources explain how that authority came to exist and why it was considered safe to grant.

ARTICLE III CREATES THE COURT, NOT JUDICIAL REVIEW

Article III establishes the Supreme Court and permits Congress to create lower federal courts, extending federal judicial power to cases and controversies within specific categories of jurisdiction. Nothing in that text explicitly grants courts the power to strike down a law as unconstitutional. Judicial review is a power the Supreme Court itself established through interpretation, not a power Article III spells out directly.

MARBURY AND THE POWER TO SAY WHAT THE CONSTITUTION ALLOWS

Marbury v. Madison held that federal courts have the authority to review governmental action and declare it unconstitutional when that action conflicts with the Constitution. The case did not need Congress to grant that power by statute; the Court reasoned that interpreting the Constitution as supreme law necessarily includes the power to refuse effect to a conflicting law.

Judicial review operates only within a real legal dispute that has properly reached a court with jurisdiction over it. Courts do not preview or veto a bill before it becomes law, and they do not issue general opinions about a law’s wisdom outside an actual case.

FEDERALIST NO. 78 AND JUDICIAL INDEPENDENCE

Federalist No. 78 defends an independent judiciary by describing courts as the branch with the least capacity to act on their own: courts control neither the sword nor the purse, only judgment. Hamilton treats the judiciary’s limited coercive power as a reason judicial independence can be tolerated. Courts possess judgment, while enforcement and spending authority remain elsewhere.

Independence, in Hamilton’s argument, lets judges enforce constitutional limits on the other branches even when a ruling is unpopular with elected officials or the public at the time.

WHY LIFE TENURE CHANGES POLITICAL PRESSURE

Article III judges serve during good behavior rather than for a fixed term, commonly described as life tenure. Good-behavior tenure removes the need for judges to seek reelection or routine reappointment, insulation that reduces direct electoral pressure and lets judges issue unpopular rulings without facing voters or a scheduled retention decision.

THE COURT’S POWER DEPENDS ON LEGAL AUTHORITY

Judicial review is real power, but it operates entirely through legal interpretation inside cases the Court has jurisdiction to hear. The Court cannot originate a case on its own, cannot enforce its own rulings without cooperation from other institutions, and depends on jurisdiction, standing, and a genuine legal dispute before any of its constitutional authority comes into play.

CONCEPT APPLICATION: A PRE-ENFORCEMENT CHALLENGE

A state enacts a law that will take effect in 30 days. A business directly regulated by the law files suit in federal district court, argues that the law violates the Constitution, and shows that state officials have announced they will enforce the law as soon as it takes effect.

Part A. Explain why the federal court does not necessarily have to wait until the state has already enforced the law against the business.

Federal courts do not issue advisory opinions about purely hypothetical disputes, but a plaintiff can sometimes challenge a law before enforcement. If the business faces a concrete and imminent injury or a credible threat of enforcement, the dispute can be sufficiently real for Article III even though no penalty has yet been imposed.

Part B. Identify what the business must establish to have standing.

The business must show an injury that is actual or imminent, that the injury is fairly traceable to the challenged government action, and that a favorable court decision could redress the injury. The case must also be ripe enough for judicial decision.

Part C. Explain how this differs from asking a court for an advisory opinion.

An advisory opinion addresses a hypothetical legal question without a real injured party. A proper pre-enforcement case has an actual plaintiff facing a concrete or imminent legal injury from a law that officials are prepared to enforce.

FEDERALIST NO. 78 EVIDENCE CHECK

Thesis: judicial independence allows courts to enforce constitutional limits even against popular political majorities.

Evidence option 1. Federalist No. 78’s description of the judiciary as the branch with neither force nor will, only judgment.

Fits the thesis: this is the structural reason independence is safe to grant.

Evidence option 2. Federalist No. 10’s account of diluting factions across an extended republic.

Does not fit as directly. Federalist No. 10 addresses societal faction, not judicial independence specifically.

QUESTIONS TO ANSWER WITHOUT NOTES

1. Does Article III explicitly grant courts the power of judicial review?

No. Article III establishes the federal courts and their jurisdiction; judicial review is a power the Supreme Court established through interpretation in Marbury v. Madison.

2. What did Marbury v. Madison establish?

That federal courts have the authority to review governmental action and declare it unconstitutional when it conflicts with the Constitution.

3. Can courts review and block a bill before it becomes law?

No. Judicial review requires a real case or controversy connected to the law’s actual application, not a preview of a bill before enactment.

4. What argument does Federalist No. 78 make for judicial independence?

That courts control neither the sword nor the purse, only judgment, making independence for the judiciary safer to grant than it would be for a branch with direct coercive power.

5. What is the correct technical term for what is commonly called “life tenure”?

Good-behavior tenure. Article III judges serve during good behavior rather than a fixed term.

6. Why does good-behavior tenure reduce political pressure on judges?

Good-behavior tenure removes the need for Article III judges to seek reelection or routine reappointment. That insulation reduces direct electoral pressure and allows judges to issue unpopular rulings without facing voters or a scheduled retention decision.

7. What does the Court’s power depend on beyond the Constitution’s text?

A genuine legal dispute, proper jurisdiction, and standing; the Court cannot originate a case on its own or enforce a ruling without cooperation from other institutions.

8. Must a law be enforced against a plaintiff before that plaintiff can challenge it in court?

Not necessarily. A plaintiff facing a concrete and imminent injury or a credible threat of enforcement can bring a pre-enforcement challenge, even though no penalty has yet been imposed.

9. What three elements must a plaintiff establish to have standing?

An injury that is actual or imminent, that the injury is fairly traceable to the challenged government action, and that a favorable court decision could redress the injury.