We are going to examine the judicial branch in more detail by looking at judicial review – the ability of the Supreme Court to accept or reject a law based on the Court’s interpretation of the law’s Constitutionality. Many major changes in American life have been brought about by the practice of judicial review, including school integration, the right to an abortion and the ability for Americans to marry across racial lines.

Chief Justice John Marshall first claimed the power of judicial review in the landmark case of Marbury v Madison in 1803. Although Thomas Jefferson had been opposed to the Court wielding this kind of power, he accepted the decision because it went in his favor. Future Presidents followed his precedent. In 1835 Andrew Jackson famously refused to comply with the Court’s decision under Chief Justice John Marshall blocking his efforts to remove the Cherokee people to the west. Jackson famously (allegedly) said “John Marshall has made his decision – now let him enforce it”. In the midst of the Civil War 25 years later, Lincoln wanted to jail potential troublemakers and hold them indefinitely without charges (suspending the right of habeas corpus). The Court ruled against this violation and Lincoln ignored it and kept putting dissidents in prison. These are dramatic exceptions – as a general rule, the power of judicial review has been recognized and accepted by Americans since 1803.

Without the cooperation of the Executive Branch, the Court would not be able to enforce its rulings. This cooperation (with the exception of Jackson and Lincoln) has always been forthcoming. President Eisenhower sent federal troops into several southern cities to enforce the Court’s school integration orders in the 1950’s and 1960’s. In 2017, there are rumblings from the Oval Office that federal court decisions may not enjoy the same level of cooperation and respect they have enjoyed in past decades. As for Congress, as the legislative branch they can literally modify the Constitution itself to negate a ruling. But that requires a difficult supermajority to achieve. More likely is that they simply modify a rejected law to bring it in compliance with the Constitution.

A legal term that will be useful: the “brief” refers to the written explanation of the lawyer’s point of view. Note that briefs, oral arguments, conferences and decisions don’t happen sequentially. Weeks or even months may pass between oral arguments and a final written opinion from the court.

The opinion contains the detailed legal reasoning of the judge or judges. Majority opinions are obviously important for their clarification of the law but minority opinions are also useful in that they identify how the dissenting judges reached their decision and can help lay the groundwork for future reversals. Decades of anti-segregation minority opinions went into the majority opinion for cases like Brown v Board (1954).

Another example of this reinterpretation following changed social conditions happened in Georgia. In the 1972 case, Furman v Georgia, the Court ruled that the death penalty was indeed cruel and unusual punishment and prohibited under the 8th Amendment. In 1976, a more conservative Court ruled in Gregg v Georgia that capital punishment did not violate the cruel and unusual clause.


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The Constitution: Resources Day 3

ActivityLandmark Supreme Court Cases

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ActivityThe Problem We All Live With

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