Judicial Review – Main Documents

Part I: Essay Definitions 

1. Judicial Review is the power to veto the actions of other agencies of government. In other words, it is a review by the United States Supreme Court of the constitutional validity of a legislative act. 
2. The origin of Judicial Review is Marbury v. Madison (1803). 
3. Selective Incorporation is a constitutional doctrine that ensures states cannot enact laws that take away the constitutional rights of American citizens that are enshrined in the Bill of Rights. It is the case by case basis where Supreme Court uses Bill of Rights against states.
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4. Grounds or reasons for incorporation have changed over time (how); How is it case by case and gradual? Include Justice Cardozo/Frankfurter’s arguments and compare to Black’s. Black believed that the Bill of Rights should be applied against states in its totality. Justice Cardozo’s/Frankfurter’s argument was that only the most important should be forced against the states.
5. Judicial Activism is an approach to the exercise of judicial review. It can also be a description of a particular judicial decision. This is a case where a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. It is considered progressive. Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that a judge should hesitate to strike down laws unless they are obviously unconstitutional. This is considered conservative. 
6. One case where judicial activism was applied was Brown v. Board of Education. This is a case of judicial activism because the judges made an executive decision that invalidated past legislation (Plessy v. Ferguson). A case that represents judicial restraint is Dred Scott v. Sanford. This represents judicial restraint because the judges did not overturn any decisions. They restrained themselves and produced a conservative decision that limited the exercise of their power, as they stated that Congress could not control slave movements. 
7. The two main clauses of the 14th amendment are the Equal Protection Clause and the Due Process Clause. 
8. The main clauses of the 14th Amendment are the Due Process Clause and the Equal Protection Clause. The Due Process Clause also includes the Citizenship Clause. The Citizenship Clause granted citizenship to “all persons born or naturalized in the United States.” The Due Process Clause declared that states cannot deny any person, “life, liberty, or property, without due process of law.” The Equal Protection Clause said that a state “may not deny any person within its jurisdiction the equal protection of laws.” It also discusses representatives for the government and the public debt. 
9. Suspect Classifications refers to a characteristic in applying a law, in which a court will review subject to a strict scrutiny standard. A classification is called suspect because it is likely to be based on illegal discrimination. An example is race. Quasi-Suspect Classifications are statutory classifications established on gender or legitimacy. Courts must apply intermediate scrutiny and see if it is important to government interest. If not, it will use rational basis review. 
10. The rational basis test is a test used to determine whether a law or governmental regulation or action violates the Equal Protection Clause. It is the default level of review that a court applies when engaging in judicial review. Intermediate/heightened scrutiny is used to determine the constitutionality of a law in some contexts. It is more rigorous than normal review, but less than strict scrutiny. The challenged law must advance an important government interest. It is used in equal protection challenges to gender classifications, as well as in cases where right to freedom of religion and freedom of expression from government interference is involved. Strict scrutiny also determines the constitutionality of certain laws. It is often used by courts when a plaintiff sues the government for discrimination. It is the highest standard of review. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest” and must have narrowly tailored the law to achieve that interest. 
11. A case that successfully used the rational basis test was Romer v. Evans. One case that successfully used intermediate scrutiny is Craig v. Boren. A case that used strict scrutiny was Brown v. Board of Education. 

Part II: Court Cases facts, Key questions, rationale/reasoning, decision. 

Provision of 14th, implications of decision Gibbons v. Ogden (1824) The case of Gibbons v. Ogden deals with the question of whether the Commerce Clause gives Congress authority over interstate navigation. This case came about because Gibbons and Ogden both operated steamboats in New York. Facts of this case include the fact that Gibbons had a federal coastal license, while Ogden received his license under state law. Ogden filed a suit against Gibbons in New York State Court. He then received a permanent injunction. The New York State Court rejected the idea that U.S. Congress controlled interstate commerce, which was argued by Gibbons. The Supreme Court’s holding was no. The Supreme Court reversed the lower court’s holding that Article 1, Section 8 of the Constitution grants Congress the power to regulate interstate commerce. The major reasoning was delivered by Chief Justice John Marshall. 

The ruling held that when Congress and a state pass conflicting laws which regulate interstate commerce, the federal law will govern under Congress’ grant of power to regulate interstate commerce under the Constitution. “This Court is, therefore of the opinion that the decree of the chancellor of that state is erroneous and ought to be reversed, and the same is hereby reversed and annulled.” This case established the right of Congress of Congress to regulate interstate commerce. It held federal law (Article 1, Section 8 of the Constitution) above that of the conflicting state law which attempted to regulate interstate commerce. 

For this case, there is no provision of the 14th Amendment used as it was not passed yet. Instead, it used the Commerce Clause. It would have been procedural had the 14th Amendment been in place.

The implications of this decision include giving defined powers for implied powers. This case decided that Congress had the right to regulate commerce between states and that federal law is supreme over state laws. 

Brown v. Board of Education (1954 and 1955) 

 Brown v. Board of Education began when the Brown family, a family of black Americans, as well other students, were denied admission to a white school, even though it was closer to their home. This was permitted under laws, those which allowed segregation based on race. As a representative of a class action suit, Brown filed a claim alleging that laws permitting segregation in public schools were a violation of the 14th Amendment’s Equal Protection Clause. Brown then filed a class action suit, consolidating cases from Virginia, South Carolina, Delaware, and Kansas against the Board of Education in federal district court in Kansas. After the District Court upheld segregation using Plessy v. Ferguson as authority, Brown petitioned the United States Supreme Court. The major question was whether segregation on the basis of race in public schools deprives minority children of equal educational opportunities, violating the 14th Amendment. 

The Supreme Court said that it did and, therefore, reversed the District Court’s decision. The ultimate decision was that separating educational facilities based on racial classifications is unequal in violation of the Equal Protection Clause of the 14th Amendment. In Brown v. Board of Education (II), the main question was over what means should be used to implement the principles announced in Brown I. It was decided that it shall be implemented “with all deliberate speed,” and is up to the courts and local school authorities to decide whether the action of the school authorities constitutes good faith implementation of the Supreme Court’s decision.

The provision of the 14th Amendment addressed by the case is the Equal Protection Clause. The Due Process Clause could have also been used, but the Equal Protection Clause was enough to declare segregation in public schools unconstitutional. This is case uses substantive due process. The implications of this decision include the declaration that separate but equal schools are inherently unequal. This case led to the desegregation of public schools in the United States of America. 

The case, therefore overturned the decision made in Plessy v. Ferguson, that declared “separate but equal” institutions were just. With Brown v. Board of Education, it was determined that “separate but equal” was inherently unequal. Some schools desegregated right away, while others maintained their status for years after the decision was made. Baker v. Carr (1962)/ Wesberry v. Sanders (1964)—treat as 1 concept but briefly explain both In the case of Baker v. Carr, under the Tennessee Constitution, legislative districts were required to be drawn every ten years. 

A Tennessee resident brought a suit against the Secretary of State, stating that the lines had not been redrawn since 1901. He claimed that the failure to redraw the legislative districts resulted in rural votes holding more votes than urban votes. He appealed that the rural votes counted more, therefore denying him equal protection of the law. Tennessee stated that redistricting was a political question and could not be decided by the Courts under the Constitution. Baker then petitioned the Supreme Court, which ultimately decided that an equal protection challenge to malapportionment of state legislatures is not a political question because it failed to meet any of the six political question test and is justiciable. The main question of this case was whether an equal protection challenge to malapportionment of state legislatures was considered non-justiciable as a political question. 

The Supreme Court stated no. Westberry v. Sanders was The provision of the 14th Amendment addressed by the case is the Equal Protection Clause. The malapportionment of state legislatures is not a political question and is justiciable. The implications of this decision include the fact that it outlined that legislative apportionment is a justiciable non-political question. It established the right of federal courts to review redistricting issues. This reversed the earlier decision which categorized redistricting issues as “political questions” outside the jurisdiction of the courts. 

Craig v. Boren (1976) 

 Craig v. Boren is based on discrimination of gender. Craig was a liquor store vendor that challenged the constitutionality of an Oklahoma statute that prohibited the sale of “nonintoxicating” 3.2% beer to males under the age of 21. The provision of the 14th Amendment that the case uses is the Equal Protection Clause. The Court maintained that a gender-based classification has to be important to a government purpose and, in this case, was not. The implications of this case include Regents of the University of California v. Bakke (1978) Allan Bakke was a white medical school applicant who was twice denied admittance into the University of California at Davis Medical School, though he had better scores than minority applicants who were accepted. He went to the California Supreme Court about the issue. After the lawsuit, the court found that the school’s affirmative action program violated Title VI of the Civil Rights Act, as well as the California law and, ultimately, the 14th Amendment’s Equal Protection Clause. 

After finding that the program violated Equal Protection, they ordered that Bakke be admitted. Shaw v. Reno (1993) Adarand v. Pena (1995) Barron v. Baltimore (1833)—start DPC/selective incorporation by explaining this case 14th Amendment was not passed so it does not use any provisions. 

The Roe v. Wade case began in 1970 when “Jane Roe,” whose real name was Norma McCorvey, filed a federal action against Henry Wade, the district attorney of Dallas County, Texas. 

 The implications of this include the fact that this case declared a pregnant woman is entitled to have an abortion until the end of the first trimester of pregnancy without any interference from the state. This struck down a Texas law that made it illegal except for when the mother was in danger. This case established the parameters for abortion that continue today. It is a very controversial case.

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