Judicial Review Questions

1. What are the major arguments for and against judicial review?

• Alexander Hamilton claimed in Federalist No. 78 that “the interpretation of the laws is the proper and peculiar province of the courts.” Do you agree or disagree? Why?
• What are the advantages and disadvantages of an appointed, life-tenured branch of government overturning laws passed by a democratically elected body of government?

2. Although the Constitution does not explicitly mention the power of judicial review, it has exercised this power for two hundred years. How has the Supreme Court’s power of judicial review expanded the role of the Court?

• Is the practice of judicial review consistent with democratic practices?
• Why or why not? Does the Supreme Court have too much power? Why or why not?

3. Judicial review is an American invention. It is the United States’ novel contribution of political theory and the practice of constitutional government. In the most celebrated case in American history, Chief Justice John Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Why has judicial review continued to be controversial? What are the major arguments advanced for and against judicial review?

• In your opinion, which of those arguments is most persuasive? Why?
• All courts, state and federal, may exercise judicial review. What are the advantages and disadvantages of this broad dispersal of power?

4. Alexis de Tocqueville was impressed by Americans’ veneration of the law. He wrote: Scarcely any political question arises…which is not resolved, sooner or later, into a judicial question… . [T]he spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society… *
* Alexis de Tocqueville, Democracy in America 1:357-58 (Frances Bowentrans, 1862), 1835 and reprinted in Fred R. Shapiro’s The Oxford Dictionary of Legal Quotations. New York: Oxford University Press, 1993, p. 241.

• What evidence can you cite to prove or disprove Tocqueville’s assertion that most political questions in the United States sooner or later become judicial questions?
• What might be the advantages of relying on the legal system to resolve political or constitutional issues? What might be the disadvantages?

5. In Federalist 51 Madison insisted that “the necessary partition of power among the several departments laid down in the Constitution” be maintained and that the parts have “the means of keeping each other in their proper places.” Why did Madison believe “partition of power” was necessary? Do you agree or disagree? Why?

• What provisions of the Constitution provide “the means for keeping each other in their proper places”?
• How and why has the Supreme Court played an important role in maintaining “the necessary partition”

6. “A judiciary independent of a king or an executive alone is a good thing, but independence of the will of a nation is a solecism (mistake, error, or blunder), at least in a republican government.”* Do you agree or disagree with this statement? Why?
* Thomas Jefferson. Letter to Thomas Ritchie, December 25, 1820. Quoted in The Quotable Founding Fathers. Buckner F Melton, Jr. (Washington, D.C.: Potomac Books, 2004), p. 150.

• How does the Constitution provide for the independence of the judiciary?
• How does the Constitution provide for the people to express their will?

7. “The Framers intended an independent judiciary but also an accountable one, a separate branch of government, but one embedded in a set of institutions that provided important checks and balances.”* How does the Constitution provide for a judiciary which is at once independent and accountable?
* Mann, Thomas E. and Norman J. Ornstein. The Broken Branch. Oxford: Oxford University Press, 2006, p. 41.

• What other institutions provide important checks and balances and how do they do that?
• How well have the goals the Framers set for the judiciary been achieved? What evidence can you offer to support your position

8. “Throughout American history courts have played a major role in the development of public policy through the exercise of the power of judicial review.”* What is judicial review and how have the courts used this power to develop public policy?
* Jack C. Plano and Milton Greenberg. The American Political Dictionary, 11th ed. (Fort Worth: Harcourt College Publishers, 2005), 290.

• “The single most important post-1787 addition to checks and balances is judicial review.”** Do you agree or disagree with this view? Why?
• Why has judicial review continued to be controversial?

** Richard A. Brisbin, Jr. “The Judiciary and the Separation of Powers,” in The Judicial Branch, Kermit Hall and Kevin T. McGuire, eds. (New York: Oxford University Press, 2005), 95.

9. Do courts need the power of judicial review to protect minority interests against legislatures and the executive that reflect the interests of the majority? What evidence can you cite in support of your answer?

• Did the Framers intend the federal courts to exercise judicial review? What evidence can you cite in support of your answer?
• Should courts composed of unelected members defer to the elected institutions of government? Why or why not?

10. How and why does the United States Constitution provide for judicial independence on the one hand and for democratic control and accountability on the other?

• What examples drawn from American history can you cite that show how the judiciary has demonstrated its independence? What is the significance of the examples you cite?
• What roles can or should individuals and organizations in civil society play in monitoring the courts and holding them accountable?

11. How and why does the United States Constitution provide for judicial independence on the one hand and for democratic control and accountability on the other?

• What examples drawn from American history can you cite that show how the judiciary has demonstrated its independence? What is the significance of the examples you cite?
• What roles can or should individuals and organizations in civil society play in monitoring the courts and holding them accountable.

12. The debate about the legitimacy of judicial review is one of the longest-running debates in the history of the United States. What are the major arguments for and against judicial review?

• Evaluate the claim that although judicial review is not specifically mentioned in the United States Constitution, it can be inferred from Article III, Section 2, and Article VI, Section 2.
• Evaluate the argument that the Supreme Court’s authority depends upon its being faithful to both the language and the spirit of the United States Constitution.

13. “Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to [the] courts is committed the guardianship of deeply-cherished liberties.”* In what ways, if any, is judicial review a limitation on popular government? * Felix Frankfurter, Minersville School District v. Gobitis, 310 U.S. 586 (1940).

• Can limitations on the will of the majority be justified in a democracy? Why or why not?
• What responsibilities do legislatures, as well as courts, have for protecting constitutional rights and how should they fulfill those responsibilities?