Judicial Review: Crash Course Government and Politics #21

Summary

In this episode of Crash Course Government and Politics, Craig Benzine explores the concept of judicial review, the Supreme Court's most crucial power. Despite not being explicitly mentioned in the Constitution, the Court established this authority in Marbury v. Madison. Judicial review allows the Court to examine and potentially invalidate actions by the legislative and executive branches, ensuring the Constitution's supremacy. The episode delves into the historical and political implications of this power, questioning its democratic legitimacy and its role in the evolution of U.S. governance.

Takeaways

• 🏛 Judicial review is the power of the Supreme Court to examine and invalidate actions by the legislative and executive branches, both at the federal and state levels.
• 👥 It is not explicitly mentioned in the Constitution but is considered a fundamental check on the power of other branches of government.
• 📚 The Supreme Court can review Congressional laws (statutes), state actions, federal bureaucratic agencies' actions, and Presidential actions.
• 🚫 The Court does not often declare laws unconstitutional to maintain predictability and avoid appearing overly political.
• 🛂 The power to review state actions comes from the Supremacy Clause of the Constitution, which establishes federal law as the supreme law of the land.
• 📈 The concept of judicial review was established in the landmark case of Marbury v. Madison, where the Court asserted its authority to declare laws unconstitutional.
• 🤔 The longevity of judicial review as a precedent is due to the principle of stare decisis, which means that courts generally adhere to previous decisions.
• 👮‍♂️ Judicial review can influence law enforcement practices, as seen in Miranda v. Arizona, which led to the requirement for police to inform suspects of their rights.
• 🤨 Some argue that judicial review is an anti-democratic usurpation of legislative power, as it allows judges to overturn laws made by elected representatives.
• 🌐 The power of judicial review is part of the evolving nature of U.S. governance, which adapts to the changing needs of the country over time.

Q & A

What is the main topic of this Crash Course Government and Politics episode?

The main topic of this episode is judicial review, which is considered the most important power of the Supreme Court, and its origin.

What does the term 'judicial review' refer to?

Judicial review refers to the power of the judiciary to examine and invalidate actions undertaken by the legislative and executive branches of both the federal and state governments.

Why does the Supreme Court not frequently declare laws unconstitutional?

The Supreme Court does not frequently declare laws unconstitutional to maintain predictability and expectations in the legal system, and to avoid appearing too political, which could erode public trust in its impartiality.

How does the Supreme Court's power to review state actions relate to the Supremacy Clause?

The power to review and overturn state actions comes from the Supremacy Clause in the Constitution, which establishes that federal law is the supreme law of the land.

What is an example of the Supreme Court extending civil rights through judicial review of state actions?

An example is Brown vs. Board of Education, where the Court struck down the idea of 'separate but equal' in the context of state public schools.

How does the Supreme Court typically handle cases involving federal bureaucratic agencies?

The Court usually defers to the expertise of bureaucrats if their actions are consistent with the intent of the legislature, and it almost never strikes down Congressional delegation of power to the executive.

What is a classic example of the Supreme Court overturning executive action?

A classic example is U.S. vs. Nixon, where the Court denied the President's claim of executive privilege and forced him to turn over recordings related to the Watergate scandal.

Where does the power of judicial review come from according to the Constitution?

The power of judicial review is not explicitly mentioned in the Constitution. It was established by the Supreme Court itself in the case of Marbury vs. Madison.

How did the Supreme Court grant itself the power of judicial review in Marbury vs. Madison?

In Marbury vs. Madison, Chief Justice John Marshall ruled that the Court had the power to review, uphold, and strike down executive actions, and in doing so, he struck down part of the Judiciary Act of 1789 as unconstitutional.

What is the principle of stare decisis, and how does it relate to the longevity of judicial review?

Stare decisis is the principle that Supreme Court precedents are binding on future Supreme Courts, meaning they generally stand unless there is a compelling reason to overturn them. This contributes to the longevity of judicial review as established in Marbury vs. Madison.

How does the concept of judicial review relate to the principle of separation of powers?

Judicial review can be seen as a check on the legislative and executive branches, ensuring that they do not overstep their constitutional boundaries. However, some argue that it violates the separation of powers by allowing unelected judges to overturn laws made by elected representatives.

Outlines

00:00

🏛 Judicial Review: The Supreme Court's Most Important Power

In this segment, Craig introduces the concept of judicial review, which is the Supreme Court's power to examine and invalidate actions by the legislative and executive branches, both at the federal and state levels. He explains that while most people associate judicial review with declaring laws unconstitutional, it can also apply to other actions. Craig emphasizes that the Supreme Court does not frequently invalidate laws to maintain predictability and public trust. He also notes that the power of judicial review is not explicitly mentioned in the Constitution but was established by the Court itself in the landmark case of Marbury v. Madison.

05:01

🤔 The Longevity and Controversy of Judicial Review

Craig discusses the reasons why the ruling in Marbury v. Madison, which established judicial review, has remained intact over time. He mentions the principle of stare decisis, which means that Supreme Court precedents are generally binding on future courts. He also touches on the idea that judicial review might be seen as a violation of the separation of powers, as it allows judges to overturn laws made by elected representatives. Craig acknowledges that this is a complex issue and one that will be explored further in future videos. He concludes by noting that judicial review is a practical aspect of how courts operate, even if it's not a power explicitly granted by the Constitution.

Keywords

💡Judicial Review

Judicial review is the power of the judiciary to examine and invalidate actions undertaken by the legislative and executive branches of both the federal and state governments. It is central to the video's theme as it discusses the Supreme Court's ability to declare laws unconstitutional. The video explains that while most people think of judicial review as declaring laws unconstitutional, it technically applies to more than just laws. An example from the script is the Supreme Court's power to review Congressional laws, or statutes, and either uphold or invalidate them.

💡Appellate Jurisdiction

Appellate jurisdiction refers to the power of a higher court to review the decisions of a lower court. The video distinguishes this from judicial review, which is the power to examine and invalidate actions by the legislative and executive branches. The script clarifies that judicial review is not the same as appellate jurisdiction, which is more about reviewing lower court decisions rather than scrutinizing the constitutionality of laws or actions by other branches of government.

💡Supremacy Clause

The Supremacy Clause in the Constitution establishes that federal law and the Constitution take precedence over state laws. The video uses this concept to explain the Court's authority to rule on state laws, indicating that the power to review and overturn state actions comes from this clause. An example given is Brown vs. Board of Education, where the Court struck down state laws enabling separate but equal accommodations in public schools.

💡Stare Decisis

Stare decisis is a legal principle that requires courts to follow the decisions of prior courts when the same points arise again in litigation. The video mentions this principle to explain why rulings like Marbury vs. Madison have not been overturned, as it is a cornerstone of the legal system that promotes consistency and predictability in the law. The script emphasizes that while the Supreme Court can overturn its own precedents, it generally tries very hard not to do so.

💡Separation of Powers

Separation of powers is a fundamental concept in the U.S. Constitution that divides the government into three branches: legislative, executive, and judicial, to prevent any one branch from becoming too powerful. The video discusses the potential conflict between judicial review and the principle of separation of powers, suggesting that by striking down legislation, the judiciary might be overstepping its bounds. The script raises the question of whether judicial review is an anti-democratic usurpation of legislative power.

💡Constitutional

Constitutional refers to something that is in accordance with the principles of a constitution, especially the U.S. Constitution. The video's main theme revolves around the Supreme Court's power to declare laws unconstitutional, which is a key aspect of judicial review. The script uses this term to highlight the Court's role in ensuring that laws and actions by other branches of government align with the Constitution.

💡Statutes

Statutes are laws enacted by legislative bodies, such as Congress. The video explains that judicial review involves the Supreme Court's ability to review Congressional laws or statutes. The script points out that the Court does not frequently strike down statutes, as doing so would create uncertainty and potentially undermine the Court's reputation for impartiality.

💡Executive Privilege

Executive privilege is the right of the President and other high-level executive branch officers to withhold information from Congress, the courts, or the public to protect national security, diplomatic relations, or the confidentiality of the decision-making process. The video cites the case of U.S. vs. Nixon, where the Supreme Court denied the President's claim of executive privilege, forcing him to release recordings related to the Watergate scandal.

💡Mandamus

A writ of mandamus is a judicial remedy used to compel government officials to perform their official duties. The video discusses the case of Marbury vs. Madison, where the Supreme Court ruled that it could not issue a writ of mandamus to force the Secretary of State to deliver Marbury's commission, setting the precedent for judicial review.

💡Precedent

Precedent refers to a decision or action that serves as an example or guide for future decisions. The video explains that Supreme Court decisions set precedents that are binding on lower courts and future Supreme Courts, due to the principle of stare decisis. The script uses the example of Miranda vs. Arizona to illustrate how a Supreme Court decision can change police procedures across the country.

💡Implied Powers

Implied powers are powers that are not expressly granted to a branch of government in the Constitution but are considered necessary for the effective functioning of that branch. The video mentions that the executive and legislative branches also operate with implied powers, similar to how the judicial branch's power of judicial review is not explicitly mentioned in the Constitution but is considered essential for its role.

Highlights

The Supreme Court's most important power is judicial review.

Judicial review is the power to declare laws unconstitutional.

The power of judicial review is not explicitly mentioned in the Constitution.

Judicial review can apply to more than just laws, including executive actions and state actions.

The Supreme Court rarely strikes down congressional statutes to maintain predictability and trust.

The Court's power to review state actions comes from the Supremacy Clause.

Brown vs. Board of Education is an example of the Court extending civil rights by striking down state action.

The Court rarely overturns Congressional delegation of power to the executive.

The Court tends to defer to the President, especially in national security matters.

U.S. vs. Nixon is a classic example of the Court overturning executive action.

The power of judicial review comes from the Court itself, established in Marbury vs. Madison.

Chief Justice John Marshall ruled that the Court could declare parts of the Judiciary Act of 1789 unconstitutional.

Judicial review enhances the Court's power by allowing it to review and potentially overturn laws.

Stare decisis, the principle of letting decisions stand, contributes to the longevity of judicial review.

Appellate decisions act like common law, binding on future courts and constraining their decisions.

Miranda vs. Arizona is an example of how the Court's decisions can change police procedures.

Judicial review is a practical application of the courts' function, not a violation of separation of powers.

The evolution of governance in the U.S. has led to implied powers not explicitly granted in the Constitution.

Transcripts

Hi. I'm Craig, and this is Crash Course Government and Politics, and today we're going to talk

about the most important case the Supreme Court ever decided ever. No, Stan, not Youngstown

Sheet and Tube Company vs. Sawyer. Although, that is one of my favorites. Loves me some

sheet and tube. And no, it's not Ex parte Quirin. Although I do love me some inept Nazi

spies and submarines. And no, it is not Miller v. California. Get your mind out of the gutter

Stan. We could play this game all day, but this episode is about judicial review: the

most important power of the Supreme Court and where it came from. Don't look so disappointed.

This is cool!

[Theme Music]

When you think of the Supreme Court, the first thing you think about, other than those comfy

robes, is the power to declare laws unconstitutional. The term for this awesome power, the main

check that the court has on both the legislative and executive branches, is judicial review.

Technically, judicial review is the power of the judiciary to examine and invalidate

actions undertaken by the legislative and executive branches of both the federal and state governments.

It's not the power to review lower court decisions. That's appellate jurisdiction. Most people

think of judicial review as declaring laws unconstitutional, and that definition is okay.

The legal purist will quibble with you since judicial review applies to more than just laws.

Appellate courts, both state and federal, engage in some form of judicial review, but

we're concerned here with the federal courts especially the U.S. Supreme Court. The Court

has the power to review the following: One, Congressional laws a.k.a. statutes! Statutes.

Since judicial review is a form of appellate activity, it involves upholding or affirming

the validity of laws, or denying it, invalidating the law in question. You might think that

the Supreme Court does this a lot, but it doesn't and historically it almost never happened

before the twentieth century. If the court were always striking down congressional statutes,

it would be hard for people to know which laws to follow, and you'll remember that one

of the main things that courts do is create expectations and predictability. For instance,

you could predict that I would eventually be punching this eagle!

Another reason why they don't invalidate laws often is that if the Court frequently overruled

Congress, the Court would seem too political and people would stop trusting its judgment.

If the Court has any power at all, it largely stems from its prestige and reputation for

being impartial and above politics. No one has any problems with the Supreme Court decisions, at all.

Two, the Court can also overturn state actions which include the laws passed by state legislatures

and the activities of state executive bureaus, usually the police.

The power to review and overturn states comes from the Supremacy Clause in the Constitution.

Most of the time that the Supreme Court extends civil rights, it comes out of a state action.

A good example is Brown vs. Board of Education where the Court struck down the idea of separate

accommodations being equal in the context of state public schools.

Three, the Court can review the actions of federal bureaucratic agencies. Although, we

usually defer to the bureaucrat's expertise if the action is consistent with the intent

of the legislature which the Court usually finds it is. The Court almost never strikes

down Congressional delegation of power to the executive. Although, you might think that it should.

The fourth area where the Court exercises judicial review is over Presidential actions.

The Court tends to defer to the President, especially in the area of national security.

The classic example of the Court overturning executive action happened in U.S. vs. Nixon

where the Justices denied the President's claim of executive privilege and forced him

to turn over his recordings relating to the Watergate scandal. More recently, the Court placed

limits on the President's authority to deny habeas corpus to suspected terrorists in Rasul vs. Bush.

So, the Supremacy Clause gives the Court the authority to rule on state laws, but where

exactly in the Constitution does the power of judicial review come from? Trick question!

It's not there, go look ahead, look. I'll wait. See, not there. Wow, you went through

that whole thing really quickly. Fast reader.

The crazy thing is that the power of judicial review comes from the Court itself.

How? Let's go to the Thought Bubble.

The Supreme Court granted itself the power of judicial review in the case of Marbury

vs. Madison. You really should read the decision because it's a brilliant piece of politics.

The upshot of the case was that Chief Justice John Marshall ruled that the Court had the

power to review, uphold, and strike down executive actions pursuant to the Judiciary Act of 1789,

and in doing this, to strike down part of that federal law. How he got there was pretty cool.

So, Marbury was an official that President John Adams, at the very end of his term, appointed

to the position of Justice of the Peace. When Marbury went to get his official commission

certifying that he could start his job, James Madison, who was Secretary of State, refused

to give it to him. So, Marbury did what any self-respecting petitioner would do, he went

to the Supreme Court for a writ of mandamus that would force Madison to give Marbury his job.

This is what he was supposed to do according to the Judiciary Act of 1789.

What Marshall did was brilliant! He ruled that yes, Marbury had a right to the commission

but that the Supreme Court could not grant his writ because the law directing them to

do so was unconstitutional. This is brilliant for two reasons. First, by the time the time

the case came before the Court, Thomas Jefferson was President. Those of you who remember Crash

Course U.S. History will recall that that less handsome man told you that Jefferson

was a Democratic Republican while Adams, Marbury, and even Marshall were all Federalists.

By ruling against his own party, Marshall made a decision that was favorable to Jefferson

and thus, likely to be supported.

The second move was even cooler. Marshall's ruling took the power of writs of mandamus

away from the Court, making it look weaker, while at the same time giving the Court the

power to declare the law that had granted it the mandamus power in the first place unconstitutional.

So by weakening the Court in this instance, like Daredevil going blind as a kid, Marshall

made it much stronger for the future, like Daredevil getting stronger in the future.

Thanks, Thought Bubble!

So that's where judicial review comes from, but that still leaves many questions. A big

question is, why has this ruling stuck around and hasn't been overturned by other laws or

later court decisions? Another question is, is judicial review a violation of separation of powers?

Some say that it's judges making laws and thus an anti-democratic usurpation of the legislature's power.

Let's talk about this rulings longevity first. Remember when I said last time that the Supreme

Court rulings are binding in lower courts? You don't remember do ya? You were sleepin'. Wake up!

Well, in general, Supreme Court precedents are binding on future Supreme Courts too because

of the principle of stare decisis, which is Latin for "let the decision stand." This doesn't

mean that future Supreme Court's can never overturn the decisions of prior Courts, it's

just that they try very hard to not do it.

This idea of precedent is one way that judges can be said to make laws. Appellate decisions

are like common law in that they are binding on future courts and constrain their decisions

and because they don't have to be grounded in a specific statute.

Other courts have to follow the higher court's interpretation of the law, and this interpretation

has the effect of redefining the law without actually rewriting the statute.

On the other hand, appellate decisions are technically not common law in that they are

only binding on courts, not executive agencies or legislatures. They are, however, signals

to courts and legislatures about how courts will rule in the future. Maybe an example

will help. If you watch cop shows, or you get arrested a lot, you probably know something

about Miranda vs. Arizona which gave us the Miranda Warning. You have the right to remain

silent and all that stuff. Hopefully, you've never heard that in person, though. But hey,

we're not here to judge. That's what the courts are for! Bahahahaha. Okay.

In that case, the Supreme Court threw out Miranda's conviction because he hadn't been

told he had the right to remain silent. Without knowing that he didn't have to talk, he made

a confession that got him convicted. The court didn't rewrite Arizona's law but it sent a

signal to Arizona's law enforcement agencies, and those in all the other states, that in

the future courts would throw out the convictions of defendants who hadn't been informed of

their rights. As a result, police procedures changed in every state, and now the police

are supposed to read the Miranda Rights to anyone they arrest.

So those are the very basics of judicial review. We've probably raised as many questions as

we've answered, but that's why we're making a bunch of these videos! So we can teach it all! All of it!

Anyway, the big concern for many is that cases like Marbury vs. Madison, which give courts

the power to strike down pieces of legislation, overturn the judgment of the elected representatives

that made the laws and violate the idea of separation of powers.

Well, that is a thorny issue, but it's one that we don't have time to de-thorn today.

For now, understand that judicial review is how the courts work in practice and not necessarily

a defined power granted by the Constitution. Just remember, the executive and legislative

branches also operate with a lot of implied powers that aren't explicitly granted to them

in the Constitution. That's because the governance of the United States has evolved and changed

over time to hopefully, suit the needs of the country as they change over time.

Thanks for watching.

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