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For our first week you read Article III of the US Constitution and Marbury v Madison

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For our first week you read Article III of the US Constitution and Marbury v Madison. We will be discussing the role and authority of the judiciary.

Many argue we have problems with judicial activism.

For your initial discussion post discuss:

1) What was the ruling in Marybury v Madison and how did it change the role of the judiciary?

2) What is judicial activism v judicial restraint? Do we have judicial activism in the courts today? If so, is it a problem and how can it be fixed?

Classmate 1 Jeffrey: This 200-year-old case certainly took some time to understand. Marbury v Madison (1803) is one of the most significant cases in the history of the United States Supreme Court and paved the way for the court to be what is it today. This case formulated what is now known as judicial review.

In 1801 the outgoing President John Adams was about transfer the presidentship to the incoming Thomas Jefferson. In the days and weeks leading to the transfer of power, President Adams passed the Judiciary Act of 180; granting him the authority to appoint dozens of judges from the Federalist Party to preserve the values from his presidency. Almost all of the intended Federalist Judges received their commissions to begin their five-year term, these judges came to be known as Midnight Judges. The issues arose when President Jefferson began his term and certain commissions were yet to be delivered.

Thomas Jefferson directed the Secretary of State James Madison to withhold all remaining commissions that were yet to be delivered. One of these commissions was for William Murbury. William Murbury contested for months to have his commission honored but to no avail. Several months later he petitioned the United States Supreme Court to issue a writ of mandamus to force James Madison to deliver his commission.

In 1803 the United States Supreme Court decided in a unanimous vote dismissing the writ of mandamus and Murbury’s claim to his commission. Chief Justice John Marshall delivered the opinion that would set the stage of the court for centuries to come. The court agreed that Murbury had a right to his commission and the legal remedy of a writ of mandamus was the correct remedy that Murbury was entitled to. The legal barrio preventing this was the new question if the Supreme Court had the jurisdiction to hear the case under the Judiciary Act of 1789.

The young court found itself in a constitutional conflict. The court found the Judiciary Act of 1789 challenged Article III of the United States Constitution. The Supreme Court could not have original jurisdiction over the case because a State or foreign dignitary was not subject to a lawsuit. The Supreme Court would have been able to make a determination of the case if they had appellant jurisdiction if the case was appealed by an inferior court. This revelation gave birth to the concept of judicial review. This court ruling gave the United States Supreme Court the authority to strike down legislation or statutes passed by Congress that conflicts with the interpretation of the United States Constitution.

Judicial activism versus judicial restraint is a delicate balance that no one has a clear answer to. Judicial activism is a term used for progressive Supreme Court Justices who use the interpretation of the United States Constitution to strike down statutes that are not in line with American values. For example, the Warren Court was the first Supreme Court bench to be referred to as a judicial activist for its progressive decisions. This court was led by Chief Justice Earl Warren from 1953 to 1969 and made substantial decisions that are bi-partisan revered today, such as their ruling in Brown v. Board of Education (1954).

On the opposite end of the spectrum from judicial activism is judicial restraint. Judicial restraint is where the Supreme Court refrains from making progressive social, political, or economic rulings, and leaves those decisions to the states or other branches of Government. Additionally, long-lasting rulings that will impact societal views will only be made when there are clear violations of the Constitution. Simply with judicial restraint, the belief is the Supreme Court interprets laws and does not create them. .

Our current Supreme Court bench is not believed to be overly activist. This opinion is not only shared by the Government but by a member of the Court. The late Justice Ginsburg said in 2013 the court was the least activist it had been in 60 years. There does not seem to be a problem with the court attempting to be overly activist. Many people believe the Court could stand to be more progressive when it comes to current social and political dilemmas.

References:

Adam Liptak, How Activist is the Supreme Court, The New York Times (Oct. 12, 2013), https://www.nytimes.com/2013/10/13/sunday-review/how-activist-is-the-supreme-court.html.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Elianna Spitzer, What Is Judicial Activism, ThoughtCo (Jun. 22, 2020), https://www.thoughtco.com/judicial-activism-definition-examples-4172436.

Marbury v. Madison, 5 U.S. 137 (1803).

Marbury v. Madison, History (Dec. 2, 2009), https://www.history.com/topics/united-states-constitution/marbury-v-madison.

Classmate 2 Ivey: The ruling in the Marbury v. Madison case declared an act of Congress unconstitutional, establishing the judicial review doctrine. “The decision of the United States Supreme Court in Marbury v. Madison (1803) has been universally hailed as a political masterpiece” (Clinton, 1994). It basically gave the Supreme Court the authority over matter concerning the United States Constitution, and the laws of the land that govern it. It established that any decision that was made by an elected official could be, and mostly likely would be, politically motivated and self-serving. But laws are put in place to be equal to all parties, regardless of political party or affiliation. Marbury v. Madison was established to determine that the Court had the authority to determine when an administration acts unlawfully (Bradley, 2012). This changed the role of the judiciary by establishing that the Supreme Court had the power to declare legislation and executive and administrative actions inconsistent with the Constitution. It in essence strengthened the power of the Supreme Court in the are that they had the most knowledge of, Constitutional law. Most importantly, it gave true meaning to checks and balancing, which is the very essence that drives the three branches of government.

2) What is judicial activism v judicial restraint? Do we have judicial activism in the courts today? If so, is it a problem and how can it be fixed?

Judicial activism can be defined as “any instance in which the courts strike down a law that violates individual rights or transgresses the constitutional boundaries of the other branches of government” (Bolick, 2019). Judicial restraint is not as easily defined. It basically means that “judges are careful about not letting their views of policy or morality displace the law” (Strauss, 2011). Whether a judge or the court practices one or the other depends on how it is interpreted by those who study such things. What one writer may consider judicial activism, another may consider the same action as not going far enough, which would be judicial restraint. The purpose of the court is to enact the laws and guidelines of the Constitution as rule of law, and not allow personal feelings or political leanings to guide decisions. There should be moral ambiguity, and emotion should not factor in any decision. As far as whether we have judicial activism in courts today again depends on the view of who is answering the question. For example, a case such as Roe v. Wade has not been touched with a ten- foot pole by the Supreme Court since it was passed forty-eight years ago. This rings true of most of the most controversial cases in United States history. The fact that these cases were passed in the first place can be described as judicial activism. On the other hand, the fact that the court has refused to make any arguments or changes to them since inception can be described as judicial restraint. The bottom line is that the enactment of laws that derived form these types of cases were done in the name of constitutional law and the equal rights of all that come with it. Any requests to change them flies in the face of that and are mostly politically motivated.

Bolick, C. (2019). The Proper Role of “Judicial Activism.” Harvard Journal of Law and Public Policy, 42(1), 1–15.

Bradley J. (2012). A Marbury for our time, SCOTUSblog (Jun. 29, 2012, 2:36 PM), https://www.scotusblog.com/2012/06/a-marbury-for-our-time/

Clinton, R. (1994). Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison. American Journal of Political Science, 38(2), 285–302. https://doi.org/10.2307/2111405

Strauss, D. (2011). Originalism, conservatism, and judicial restraint. Harvard Journal of Law and Public Policy, 34(1), 137–.

Classmate 3 Crystal: The case of Marbury v. Madison revolved around the presidency of Thomas Jefferson and John Adams. Before President Jefferson took his place as President, the Judiciary Act of 1801 was passed by John Adams and the rest of Congress. This judiciary Act essentially created new judges, new courts, and the President had more power to appoint judges of their choosing. William Marbury was appointed Justice of the Pease for DC, but his commission was not delivered. He motioned for the Supreme Court to compel James Madison to deliver the documents. The Supreme Court (4 of 6) found that it was illegal for James Madison to not give the commission, but they did not order it. The conclusion of Marybury v. Madison was that the Supreme Court was not able to force it because of Section 13 of the Judiciary Act of 1789 conflicting with Article III, Section 2, of the Constitution, and was subsequently null and void. The Supreme Court further found that Congress was not able to modify or change the Constitution because the Supremacy Clause makes it so the Constitution overrides laws. This is all important because this case made it so there was now a judicial review so that a law can be declared unconstitutional and "a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument."

Judicial Activism and Judicial Restraint are important based on the readings from this week.

-Judicial Activism is when judges go beyond their duties of applying the law to the facts of individual cases. It essentially is when judges interpret the law their own way, subsequently amending constitutional rights based on their own notions of societal needs.

-Judicial Restraint is the idea of judges limited the exercise of their power. Essentially judges should be cognizant to strike down laws unless they are clearly unconstitutional.

I do believe that we have judicial activism in courts today. That is why people try and elect certain judges to their places. The phrase "activist judge" is usually for judges that do things their way. For example, a judge seeing a child pornography case whom has a small child of their own can be two types of judge: and activist, or a restraint judge. They could rule on the case based on their own opinion (activist), or they can exercise judicial restraint and put their own feelings aside. It is a problem because the court system should be a pillar of consistency, and it clearly is not. Judges cannot make their own determination, because there is an Amendment process which has helped our nation in matters such as the Bill of Rights. To fix it is difficult. Judicial activism stems from the political differences. The only way I see it to be fixed is ensuring the right people are in the seats. Which is hard because we are such a divided country.