Judicial review is the principle where the U.S. Supreme Court has the authority to review all law.  Based on judicial review the U.S. Supreme Court can review states’ laws, federal legislation, executive regulations and, depending on your view, Constitutional law. 

Because of precedence in common law, the ruling of Marbury v. Madison (5 U.S. 137, 1803 – syllabus) establishes that the U.S. Supreme Court stands in the role of adjudicator of all other law.  In the court’s opinion, Mr Chief Justice Marshall wrote:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.

I’m satisfied that these two sentences are the Marshall court’s foundation for judicial authority and that the next statement is meant to demonstrate a situation in which they expected the court’s authority to be called upon from that time forward when he wrote:

If two laws conflict with each other, the courts must decide on the operation of each.  So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

The authority and extent of judicial review has been challenged, especially in the Twentieth Century, but that may better be handled in reviews of due process and judicial restraint.

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

This statement lives within the section of code dealing with the U.S. judiciary’s federal courts.  The “district courts” in the statement refer to the first of three levels of federal courts. 

Not much of the legislative context for this survives today so it’s difficult to know the extent to which its creators intended its use but one historical incident that appears to have given rise to the legislation was the a French diplomat Francis Barbe Marbois was attacked in America and had little legal recourse.

Seminal Cases:

In 1980 the U.S. Second Circuit Court of Appeals heard the case of Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).  The case was brought by the father and sister of a young man allegedly tortured to death by a Paraguyan official.  Initially the case was dismissed for “want of federal jurisdiction” but the 2nd Circuit reversed the lower court’s decision, remanding the case.

This statute allows foreign nationals to sue other foreign nationals in federal court based on non-U.S. laws.

The appeal will be heard by the Ninth Circuit Court of Appeals.

By way of contrast,  statutory law creates law with the successful statutes of a legislative body and regulatory law utilizes requirements and obligations handed down by members of the executive branch to form law.  Consitutional law predicates its laws upon the articles of the Constitution.

A governing principle of common law is stare decisis which in short means that if the components of a case are materially the same as a previously decided case then a similar result must be reached.

In the U.S. the Supreme Court, the only court expressly created by the Constitution, is a common law court by implication of Article 3 of the Constitution.  The Supreme Court uses common law to adjudicate the legal implications of statutory and regulatory law and the application of and implications of Constitutional law.

The term comes from English laws that were considered common among different districts over which itinerent judges presided.  These laws were not statutory in nature but the citizens of the several districts held them to be universally understood.   These common laws are referred to as having authority to review royal power in the Magna Carta by the term “. . . except by the lawful judgement of his peers or by the law of the land.” (emphasis mine)

The term literally means “standing by decisions” or “standing by things decided” in Latin.  It provides stability and consistency to common law rulings.

Judge Hand lived during a period often cited as judicially progressive (the late Nineteenth and early Twentieth Century saw the Supreme Court active in reviewing large volumes of state legislation based on an application of “due process” to economic and social issues).  Judge Hand advocated for judicial restraint and leaving law-making to the legislature; professionally, he did not believe in overturning or striking down legislation even if his personal opinion a particular law was negative.  Learned Hand even felt that the Bill of Rights was not to be used by courts to overrule statutory law; thus his arguments that the “due process” clauses of the Fifth and Fourteenth Amendments should not be used by judges to meddle in legislation.

Judge Hand was a strong advocate of the principle of free speech.  His free speech test, most famously found in Masses Publishing Co. v. Patten (1917), was that anything short of directly inciting illegal action should be protected speech.  This view was overturned on appeal and Supreme Court Justice Oliver Wendell Holmes, Jr.’s “clear and present danger” test became the standard for free speech in the June 1919 Schenck v. United States decision.  Perhaps it isn’t suprising to find that Hand is credited as one of three or four judicial theorists who’s arguments seemed to sway Justice Holmes so that when he wrote his famous and ubiquitous “shout[ing] fire in a crowded theater” statement in the November 1919 decision of Abrams v. United States, his dissent modified free speech tests for the last century.

Judge Hand may have been a somewhat forgettable lawyer and a standout as a federal judge but his greatest contribution was to the body of judicial theory; most especially in regards to libertarian interpretation moderated by judicial restraint.

One of the major, meritorious battles Gov Sebelius will face will focus on her view of abortion as an elected executive.  During her two terms as Kansas Governor, Mrs. Sebelius has vetoed some legislation such as HB 2503 (2005) and SB 389 (2008, Gov Sebelius’ comments) but she also signed a bill known as Alexa’s Law which allows for prosecution of people who commit violence against fetuses.

I think a fair assessment of her position is that she has undermined anti-abortion proponents with sometimes weaker, sometimes stronger arguments but her consistent tone has been one supporting less restrictions on abortion.

It often seems like an odd thought that supports conservative government but doesn’t seem to appreciate privacy arguments.  It seems that smaller, less-intrusive government would extend to the doctor’s offices and bedrooms of citizens but that just doesn’t feel like it’s the case with a conservative viewpoint.  Oddly, it’s the more liberal view that argues for more privacy in personal arenas and more public accountability.  I feel that there are some who would suggest rhetorical arguments such as the liberal approach is for more oversight so that more wealth or benefits can be easily distributed.  

I’m not trying to say authoritatively or exhaustively that holding a conservative viewpoint on any topic precludes also valuing privacy arguments.

Justice McReynolds delivered the unanimous opinion of the court.

Pierce’s decision reiterates the State’s right to require mandatory education of all children within certain age restrictions2 but upholds parents’ rights to choose the manner of the education as long as those choices fall within certain acceptable guidelines.3  The appeal was brought on “due process” grounds, making it a Fourteenth Amendment case.

I found this case while researching First Amendment cases but upon reading the syllabus and Justice McReynolds’ opinion I was confused as to why it was associated with First Amendment rights until I looked it up in The Oxford Companion to the Supreme Court (Amazon, B&N)

 This case was adjudicated during a time when the bench applied substantive due process to cases on the basis of economic conditions.4  That fact is applicable in this case because the appeal was brought by the state of Oregon against the Society of Sisters of the Holy Names of Jesus and Mary and against Hill Military Academy.  Both appellees obtained restraining orders to stop the state of Oregon from inducing all children to attend local public schools.  Their claims were that the Compulsory Education Act of 1922 was damaging to their separate enterprises and that it would effectively stop any revenues without due process of law.

The use of due process upon grounds of economic issues was most active from late Ninteenth Century through the first quarter of the Twentieth Century.  This trend slowed such that by 1934 (Nebbia v. New York) the court applied a standard of reasonableness whereby it decided to accept that the market price of milk was the type of decision that might be best left to the market and the Legislature.

Pierce is notable because the use of substantive due process as it relates to economic issues has long since fallen out of favor and even though the constitutional basis of the case has been debated, Pierce has never been effectively challenged.  Board of Education v. Allen (1968) claimed that the Pierce decision was based on free exercise of religion which is difficult because Hill Military was a military school rather than a religious one.  Other cases have centered on Justice McReynolds’ use of “… rights guaranteed by the Constitution ….” might more aptly refer to fundamental rights, thus providing a basis for the decision.

1 Links to references for this case; multiple are given in case any one is unavailable:

• Oyez
• FindLaw
• Justia
• Cornell

2 From Justice McReynolds’ opinion:

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

3 From Justice McReynolds’ opinion:

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [p535] under their control; as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State.

 

• Allgeyer v. Louisiana (1897)
• Lochner v. New York (1905)
• Adair v. U.S. (1908)
• Coppage v. Kansas (1915)
• Adkins v. Children’s Hospital (1923)

Requirements for President Obama’s mortgage modification plan include:

• Must demonstrate a lack of ability to pay current mortgage.  Borrower’s retirement accounts will NOT be factored into ability to pay metrics.
• Must demonstrate a drop in income or increase in payment.  Every borrower seeking modification will be screened.
• Borrowers seeking a modification do NOT need to be delinquent in order to qualify.
• Borrowers with high total debt may be required to enter government-certified debt counseling.
• The mortgage must have originated prior to Jan 1, 2009.  The home must be occupied by the owner and must be a primary residence.  The home must be a 1-4 unit family dwelling.
• Loans have upper limits; single-family homes must carry no more debt than $729,750.
• Borrowers seeking to have their mortgages modified will incur no cost to have their mortgage modified.  Applications for modification will be accepted until Dec 31, 2012.
• There is no minimum or maximum loan-to-value ratio.
• Bankruptcy is NOT an automatic elimination; qualification for modification does NOT waive the legal rights of borrowers who are in litigation.
• Foreclosure actions are temporarily suspended while borrowers are evaluated for inclusion in the program.
• Eligibility for the program ends at the end of three years.