Why has judicial review remained controversial to the present day?

Question

I have constantly researched this and I am getting very confused about it.

Answer 1

(just a note regarding the idea that the judicial branch is the most powerful: it is not. There are multiple ways that both Congress and the President can check the behaviors of the Supreme Court, but do know that they have stepped outside of the founder's vision by clearly making political decisions. When they were making decisions that expanded the rights of minorities women and voting citizens I thought that was a good thing. I do not think that so much anymore.) Additionally, the Supreme Court is not democratically elected and members are allowed to serve for life. The two other branches of government are subject to the will of the majority of the population and can be removed from office via ongoing elections. Over time, the political party doing the complaining about this branch of government will vary depending on whether you have a very conservative or liberal set of justices. The Supreme Court likes to say that it does not make decisions based on political influence, but rest assured that it does. Many examples of this come to mind such as plessy versus ferguson, brown versus the Topeka board of education, roe versus wade, bush versus gore, lochner, and the list goes on and on.

Answer 2

Judicial review is controversial because one side always loses. Article III of the Constitution sets forth the purpose and duties of the court system. Only those cases that involve a Constitutional issue are addressed by the Supreme Court. Marbury v. Madison did not "create" the court system. Marbury v. Madison expanded Court jurisdiction to include the authority to rule on matters that were not specially named in the Constitution.

Just like the Constitution and the three branches of government, the courts are an ever evolving institution. Although decisions from 200 years remain in force, such as McCullough v. Maryland that gave Congress the authority to establish a national bank, others such as Plessy v. Ferguson (authorizing separate but equal access) have been effectively overturned by case law and federal laws.

Most recently, in Heller v. D.C. (2008) the Supreme Court reinterpreted gun ownership to be a right of "personal defense" and not limited to a "well-regulated militia", although state and local jurisdictions could still limit sales and types of weapons available.

Answer 3

Hey Michaela,

That is a very good question. First we must think about what exactly Judicial Review is. Judicial Review is defined as "Judicial review is the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. Judicial review was established in the classic case of Marbury v. Madison, 5 US 137 (1803). " (pulled directly from Cornell University Law School). 

 

In simpler terms, Judicial Review gives the Judicial Branch the ability to tell all of the other branches, "no, you can't do that." Making it literally the most powerful of the branches. Furthermore, supreme court judges have no effective term length, so they can control the other branches as long as they see fit. It's also controversial because it wasn't explicitly written in the constitution, it was a creation of James Madison in order to expand the power of the Judicial branch of government. He literally wrote it into law that he has more power by justification of something he made up. That is the same logic as saying, "you can't do this because I say so, and I have the right to say so because I say I do." that is why it is so controversial. Now, there are checks to it, Judicial Review can be overwritten, but it is extremely hard to do. I hope this helps enlighten you. 

 

-Eric Taurone