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Here's what I've failed to quite grasp: if judicial review wasn't a thing, then what power would SCOTUS have had? Would they have just served as the "jury" for

Here's what I've failed to quite grasp: if judicial review wasn't a thing, then what power would SCOTUS have had? Would they have just served as the "jury" for each case, but without the ability to set legal precedent for future similar cases? And if so, doesn't that mean they could still take future cases and rule the same way... just with more repeated/wasted work?

HWR_14 3y ago
The Supreme Court using precedent is totally different from judicial review. Not all, or even most, of their cases today require judicial review. For example, the Supreme Court recently ruled on how to interpret a law on wetlands adjacent to the waterways. Judicial review is limited to describing the Supreme Court throwing out a law as unconstitutional, as opposed to applying legal reasoning and precedent to understanding the law.
- dataflow 3y ago
  I didn't mean to say all their cases require judicial review. But I am asking about cases where the question really is "what is the effective law, given that the constitution says X but plaintiffs believe the statute says not-X?" Like, if it turns out the statute really goes against the constitution, then what else can the court do if not declare it unconstitutional? Just read it for amusement, give their 2 cents, and shrug and tell congress it can do whatever it wanted anyway? What does the constitution even mean at that point?
  - paulddraper 3y ago
    Basically, yes. If the Executive, Legislative, and Judicial branches disagree about what the Constitution means, that is of course a real problem. Opponents of judicial review argued that the Judicial branch has no supremacy over the other two branches in reading the Constitution. You worry about the legislature running roughshod over the Constitution without anyone to stop them. Okay, fair enough. But then who prevents the courts from running roughshod over the Constitution without anyone to stop them? Who watches the watchers? Does judicial review actually prevent the problem? (Disclaimer: Personally, I agree with judicial review. I think Marshall's argument in Marbury v Madison is cogent.)
    - dataflow 3y ago
      > But then who prevents the courts from running roughshod over the Constitution without anyone to stop them? Depending on how you look at it, the answer is either nothing, or impeachment. But regardless, this doesn't seem like sound reasoning. The constitution itself becomes meaningless if congress can just override it through ordinary legislation without going through the amendment process. This is true regardless of whether or not anyone watches the watchers. Moreover this doesn't even seem like it needs a logical leap; the constitution literally says: > The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority [...] That seems to be a very explicit mention that the Supreme Court can adjudicate all cases regarding the laws of the United States, and also determine the relief (if I understand "equity" correctly). That... seems to be exactly what judicial review is, no? Otherwise what would this "power" the constitution speaks of be?
  - patmorgan23 3y ago
    The Veto was originally seen as the check on unconstitutional statues, and that it was improper for a president to use it to dismiss a statue they disagreed with politically.
    - dataflow 3y ago
      That's a cool fact, but then what was the point of the amendment process?
- dllthomas 3y ago
  How is judicial review different from what naturally follows from a combination of constitutional supremacy and precedent?
I_am_uncreative 3y ago
Well, in the UK they have the principle of Parliamentary Supremacy. Like here in the US, courts there can set legal precedent, but unlike here, they can't rule a law that has been enacted by the Parliament as being unconstitutional.
- dragonwriter 3y ago
  > Well, in the UK they have the principle of Parliamentary Supremacy. Like here in the US, courts there can set legal precedent, but unlike here, they can't rule a law that has been enacted by the Parliament as being unconstitutional. Yes, Parliamentary sovereignty—that the law is exactly and only what Parliament [0], directly or by delegation to other bodies, says it is—is the central, fundamental, element of the British Constitution (arguably, that is the whole of the British Constitution, insofar as by that you mean something functionally analogous to the US Constitution, that is, a fundamental law to which all other law is subordinate.) There is no Constitution as a distinct document setting out fundamental law with its own amendment process distinct from normal legislation in the UK. You couldn't meaningfully have a law that transcends the normal acts and processes of the legislature without courts being able to set aside regular acts of the legislature as not-law for conflict with it, and you can’t reasonably read the power to resolve all cases and controversies arising under thr Constitution (which explicilty is the preeminent law and limits the power of Congress to make law) and laws of the United States as anything other than including the power to resolve disputes over whether an act of Congress is within the power assigned to Congress in the Constitution. Note that the UK does have judicial review that extends to all acts of delegated power by government body, just not to primary legislation, which is not delegated but a direct act of the sovereign power. In the US, Congress’s legislative power is delegated by the people via the Constitution (popular sovereignty), rather than having Congressional sovereignty as the sole operative Constitutional principal. So, really, judicial review itself is not different between the two systems, only who is the sovereign from which all government power held by other bodies is delegated differs. [0] in present terms; in historical terms, perhaps “the Crown”, embodied in the personal acts of monarchs prior to the establishment of the principle of Parliamentary sovereignty, and by the acts of the Crown-in-Parliament since, rather than merely “Parliament” would be more accurate.
- 3y ago
vkou 3y ago
> , then what power would SCOTUS have had? The same power that any court has. When two people disagree as to what a law means, they would be the ultimate arbiter of it. They've certainly doubled down on the ultimate part...
- dataflow 3y ago
  Okay, so imagine plaintiffs claim the constitution says X and so that's the law even if the statute says not-X. Whereas defendants claim the statute says not-X but they believe it doesn't conflict with whatever the constitution says. SCOTUS being the arbiter studies both and finds that the constitution says X, the statute says not-X, the constitution is supreme, and therefore X is in fact the law. Exactly how is that different from saying the statute is "unconstitutional"?
  - vkou 3y ago
    I have a better example to ponder. Imagine the claim is that the constitution says X, the statute says not-X, and the court rules ABCD and a pony. How exactly do you prevent that sort of thing? What mechanism could do so? If you can think of one, I'll note that it can likewise be applied to the scenario you described. If you can't, then I'll argue that the court's power is... Quite open-ended, with no limits on it.
    - dataflow 3y ago
      > How exactly do you prevent that sort of thing? What mechanism could do so? You don't prevent it, you deal with it after the fact. If Congress finds the court ruling egregious enough it obviously has mechanisms to deal with it. Like by impeaching justices, installing new ones, etc. And if for whatever reasons those aren't options, well, then there is no recourse. Regardless, even if the court's power were unlimited, this is not answering my question or addressing my point regarding judicial review...

HWR_14 3y ago

The Supreme Court using precedent is totally different from judicial review. Not all, or even most, of their cases today require judicial review. For example, the Supreme Court recently ruled on how to interpret a law on wetlands adjacent to the waterways. Judicial review is limited to describing the Supreme Court throwing out a law as unconstitutional, as opposed to applying legal reasoning and precedent to understanding the law.

dataflow 3y ago
I didn't mean to say all their cases require judicial review. But I am asking about cases where the question really is "what is the effective law, given that the constitution says X but plaintiffs believe the statute says not-X?" Like, if it turns out the statute really goes against the constitution, then what else can the court do if not declare it unconstitutional? Just read it for amusement, give their 2 cents, and shrug and tell congress it can do whatever it wanted anyway? What does the constitution even mean at that point?
- paulddraper 3y ago
  Basically, yes. If the Executive, Legislative, and Judicial branches disagree about what the Constitution means, that is of course a real problem. Opponents of judicial review argued that the Judicial branch has no supremacy over the other two branches in reading the Constitution. You worry about the legislature running roughshod over the Constitution without anyone to stop them. Okay, fair enough. But then who prevents the courts from running roughshod over the Constitution without anyone to stop them? Who watches the watchers? Does judicial review actually prevent the problem? (Disclaimer: Personally, I agree with judicial review. I think Marshall's argument in Marbury v Madison is cogent.)
  - dataflow 3y ago
    > But then who prevents the courts from running roughshod over the Constitution without anyone to stop them? Depending on how you look at it, the answer is either nothing, or impeachment. But regardless, this doesn't seem like sound reasoning. The constitution itself becomes meaningless if congress can just override it through ordinary legislation without going through the amendment process. This is true regardless of whether or not anyone watches the watchers. Moreover this doesn't even seem like it needs a logical leap; the constitution literally says: > The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority [...] That seems to be a very explicit mention that the Supreme Court can adjudicate all cases regarding the laws of the United States, and also determine the relief (if I understand "equity" correctly). That... seems to be exactly what judicial review is, no? Otherwise what would this "power" the constitution speaks of be?
- patmorgan23 3y ago
  The Veto was originally seen as the check on unconstitutional statues, and that it was improper for a president to use it to dismiss a statue they disagreed with politically.
  - dataflow 3y ago
    That's a cool fact, but then what was the point of the amendment process?
dllthomas 3y ago
How is judicial review different from what naturally follows from a combination of constitutional supremacy and precedent?

I_am_uncreative 3y ago

Well, in the UK they have the principle of Parliamentary Supremacy. Like here in the US, courts there can set legal precedent, but unlike here, they can't rule a law that has been enacted by the Parliament as being unconstitutional.

dragonwriter 3y ago
> Well, in the UK they have the principle of Parliamentary Supremacy. Like here in the US, courts there can set legal precedent, but unlike here, they can't rule a law that has been enacted by the Parliament as being unconstitutional. Yes, Parliamentary sovereignty—that the law is exactly and only what Parliament [0], directly or by delegation to other bodies, says it is—is the central, fundamental, element of the British Constitution (arguably, that is the whole of the British Constitution, insofar as by that you mean something functionally analogous to the US Constitution, that is, a fundamental law to which all other law is subordinate.) There is no Constitution as a distinct document setting out fundamental law with its own amendment process distinct from normal legislation in the UK. You couldn't meaningfully have a law that transcends the normal acts and processes of the legislature without courts being able to set aside regular acts of the legislature as not-law for conflict with it, and you can’t reasonably read the power to resolve all cases and controversies arising under thr Constitution (which explicilty is the preeminent law and limits the power of Congress to make law) and laws of the United States as anything other than including the power to resolve disputes over whether an act of Congress is within the power assigned to Congress in the Constitution. Note that the UK does have judicial review that extends to all acts of delegated power by government body, just not to primary legislation, which is not delegated but a direct act of the sovereign power. In the US, Congress’s legislative power is delegated by the people via the Constitution (popular sovereignty), rather than having Congressional sovereignty as the sole operative Constitutional principal. So, really, judicial review itself is not different between the two systems, only who is the sovereign from which all government power held by other bodies is delegated differs. [0] in present terms; in historical terms, perhaps “the Crown”, embodied in the personal acts of monarchs prior to the establishment of the principle of Parliamentary sovereignty, and by the acts of the Crown-in-Parliament since, rather than merely “Parliament” would be more accurate.
3y ago

vkou 3y ago

> , then what power would SCOTUS have had? The same power that any court has. When two people disagree as to what a law means, they would be the ultimate arbiter of it. They've certainly doubled down on the ultimate part...

dataflow 3y ago
Okay, so imagine plaintiffs claim the constitution says X and so that's the law even if the statute says not-X. Whereas defendants claim the statute says not-X but they believe it doesn't conflict with whatever the constitution says. SCOTUS being the arbiter studies both and finds that the constitution says X, the statute says not-X, the constitution is supreme, and therefore X is in fact the law. Exactly how is that different from saying the statute is "unconstitutional"?
- vkou 3y ago
  I have a better example to ponder. Imagine the claim is that the constitution says X, the statute says not-X, and the court rules ABCD and a pony. How exactly do you prevent that sort of thing? What mechanism could do so? If you can think of one, I'll note that it can likewise be applied to the scenario you described. If you can't, then I'll argue that the court's power is... Quite open-ended, with no limits on it.
  - dataflow 3y ago
    > How exactly do you prevent that sort of thing? What mechanism could do so? You don't prevent it, you deal with it after the fact. If Congress finds the court ruling egregious enough it obviously has mechanisms to deal with it. Like by impeaching justices, installing new ones, etc. And if for whatever reasons those aren't options, well, then there is no recourse. Regardless, even if the court's power were unlimited, this is not answering my question or addressing my point regarding judicial review...