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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, t

by 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?

by HWR_14 3y ago

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?