Announcement

Collapse
No announcement yet.

A quick couple of questions about judicial review

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • A quick couple of questions about judicial review

    It is my understanding that when a law is passed, the supreme court has the power to review it and decide whether or not it is constitutional. Now do they just get to choose what they review and don't? For example, did they just get to choose that they wanted to review the Patriot Act, or did something have to happen first? And I am correct in believing that the supreme court can open up laws from the past at any time? How does this work? Does one of the justices say, there was that law passed a while back, and it is unconstitutional, let's review it, and then it is reviewed?

    And what if a state law is unconstitutional? Is the state supreme court the only one allowed to review it? What if they don't strike it down as unconstitutional? Can the supreme court step in and do this? And how is this done? Does one of the justices just say, "Hey. That law down in Alabama is unconstitutional, let's review it."
    "The first man who, having fenced off a plot of land, thought of saying, 'This is mine' and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race had been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men: 'Beware of listening to this imposter; you are lost if you forget the fruits of the earth belong to all and that the earth belongs to no one." - Jean-Jacques Rousseau

  • #2
    Re: A quick couple of questions about judicial review

    Originally posted by johncmcleod
    And what if a state law is unconstitutional? Is the state supreme court the only one allowed to review it? What if they don't strike it down as unconstitutional? Can the supreme court step in and do this? And how is this done? Does one of the justices just say, "Hey. That law down in Alabama is unconstitutional, let's review it."
    It's my understanding that a case of this nature has to move through lower-level courts first before it can be in a position to be heard by the USSC. That's as much as I can say; there's sure to be more knowledgable posts coming shortly... and less knowledgable ones too.
    The cake is NOT a lie. It's so delicious and moist.

    The Weighted Companion Cube is cheating on you, that slut.

    Comment


    • #3
      Court decisions are appealed up through the court system from the local level up to the Supreme Court when the loser in the verdict feels that the law is misinterpreted or unconstitutional.

      Even when it gets to the Supreme Court, not everything is reviewed. There is definitely not enough time to go back to old laws looking for stuff unless someone brings up an appeal. This is why Supreme Court decisions are always named after individual cases, such as Roe vs. Wade or Brown vs. Board of Education.
      Visit First Cultural Industries
      There are reasons why I believe mankind should live in cities and let nature reclaim all the villages with the exception of a few we keep on display as horrific reminders of rural life.-Starchild
      Meat eating and the dominance and force projected over animals that is acompanies it is a gateway or parallel to other prejudiced beliefs such as classism, misogyny, and even racism. -General Ludd

      Comment


      • #4
        Wait, I thought judicial review was different than making a decision on a case between two parties. I thought judicial review was when they simply took a law and said "No, this is unconstitutional." and shot it down.
        "The first man who, having fenced off a plot of land, thought of saying, 'This is mine' and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race had been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men: 'Beware of listening to this imposter; you are lost if you forget the fruits of the earth belong to all and that the earth belongs to no one." - Jean-Jacques Rousseau

        Comment


        • #5
          I don't think so, johncmcleod. Judicial review began with Marbury vs Madison in the early 19th century, where Chief Justice Marshall found a law unconstitutional (iirc it allowed the president illegally broad powers regarding jobs and political appointments) when Marbury objected to being replaced in his job, though I don't recall the specifics (google it )

          The courts must have a case brought to them, there must be an aggrieved party. If nobody's hurt by a law, then it can't really be unconstitutional, can it... (as someone's constitutional rights must be abridged by a law for it to be unconstitutional).

          That's why they have "test cases", where groups like the ACLU and whatnot intentionally do something to test a law, ie refusing to give information under the Patriot Act, or trying to get someone hired for a job that would violate an affirmative action statute or some such.

          * However, they don't ALWAYS have to go through the lower courts. They can be brought directly to the supreme court if there's a good reason to do so, usually IIRC if it's a big enough question or if it directly affects presidential powers or something like that (though i'm not sure of the specifics).
          <Reverend> IRC is just multiplayer notepad.
          I like your SNOOPY POSTER! - While you Wait quote.

          Comment


          • #6
            Than what case overthrew the patriot act?

            Sorry for the late response. I was caught up with my other homework and forgot to check if anyone responded.

            Thanks a million.
            "The first man who, having fenced off a plot of land, thought of saying, 'This is mine' and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race had been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men: 'Beware of listening to this imposter; you are lost if you forget the fruits of the earth belong to all and that the earth belongs to no one." - Jean-Jacques Rousseau

            Comment


            • #7
              I don't think any case overthrew the patriot act, I was just giving examples of possible cases I think the ACLU did indeed have several test cases, including a library, but I think they only made minor inroads against the law.
              <Reverend> IRC is just multiplayer notepad.
              I like your SNOOPY POSTER! - While you Wait quote.

              Comment


              • #8
                If no case overthrew the patriot act, than how come it got shot down by the supreme court?
                "The first man who, having fenced off a plot of land, thought of saying, 'This is mine' and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race had been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men: 'Beware of listening to this imposter; you are lost if you forget the fruits of the earth belong to all and that the earth belongs to no one." - Jean-Jacques Rousseau

                Comment


                • #9
                  I wasn't aware that it was?

                  [dans]Certain (small) parts of it were ruled against, but even in those cases (such as the wiretap issue) amending it could fix the problem (rather than eliminating it). The USA Patriot Act is still (mostly) in force, as far as I know.

                  [/dans]
                  <Reverend> IRC is just multiplayer notepad.
                  I like your SNOOPY POSTER! - While you Wait quote.

                  Comment


                  • #10
                    Yes, but I thought the supreme court said part of it was unconstitutional and shot that part down. Or did they just tell congress parts of it were unconstitutional and then congress just followed suit and took those parts out without the case our review or anything?
                    "The first man who, having fenced off a plot of land, thought of saying, 'This is mine' and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race had been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men: 'Beware of listening to this imposter; you are lost if you forget the fruits of the earth belong to all and that the earth belongs to no one." - Jean-Jacques Rousseau

                    Comment


                    • #11
                      The specific case I know about is


                      That's the National Security Letter issue - in fact not a specific element of the Patriot act, but a power the patriot act amends/allows.

                      This isn't even the Supreme court (although i don't doubt it went up the chain, EFF just doesn't cover it for some reason)... it was just a federal circuit court. ANY (federal) court has the power to rule something unconstitutional; hower the SCOTUS has the power to overturn or correct any lower court's ruling
                      <Reverend> IRC is just multiplayer notepad.
                      I like your SNOOPY POSTER! - While you Wait quote.

                      Comment


                      • #12
                        Originally posted by johncmcleod
                        Yes, but I thought the supreme court said part of it was unconstitutional and shot that part down. Or did they just tell congress parts of it were unconstitutional and then congress just followed suit and took those parts out without the case our review or anything?
                        More specifically though, indeed, the court did say part of it was unconstitutional (or an act allowed by it), because of a complainant. In this case, "John Doe". Someone (unnamed) who was given an NSL, and the ACLU took up the case for them.
                        <Reverend> IRC is just multiplayer notepad.
                        I like your SNOOPY POSTER! - While you Wait quote.

                        Comment


                        • #13
                          Originally posted by johncmcleod
                          Wait, I thought judicial review was different than making a decision on a case between two parties. I thought judicial review was when they simply took a law and said "No, this is unconstitutional." and shot it down.
                          No. There must be a "case or controversy" for a court to decide a matter. Otherwise, the courts would, in effect, be issuing advisory opinions. Once a case is taken to the SCOTUS, the Court decides whether or not to hear the case. If they hear it, then their review of the law in question takes place within the context of the case and arguments presented by counsel.

                          Comment


                          • #14
                            As stated, the Supreme Court cannot rule on a issue unless there is an actual case, with actual parties who are harmed. The Supreme Court will not take a case if one of the parties isn't harmed (ie, you can't bring a suit on behalf of your neighbor's rights, unless the violation of those rights personally harms you in a concrete manner). That is called standing. Do you have the standing to sue?

                            Now these cases come to the Supreme Court in two ways. One is through the federal courts, where they can be brought if the case is on a federal law or it is between two parties of different states and the total amount of the claim is over $75,000 (no dollar limit if its a suit based on federal law). It startes in District Court, then can be appealed to the Court of Appeals (who must hear the appeal) and then you can ask the Supreme Court to take it.

                            The other is through the state courts, where it goes all the way up the state court system and after the State Supreme Court rules on it, then if there is a US Constitutional question, it can be appealed to the Supreme Court.

                            In the two above situations, the parties have to petition for a writ of certiori (sp?), which basically means "PLEASE take this case". Then the Supreme Court gets to decide from all the cases that have gone through the Federal Court of Appeals or Constitutional questions in cases gone through State Supreme Courts which ones they want to pick.

                            Also there are some cases where the Supreme Court has original jurisdiction (ie, they are the only ones that can hear it), such as cases between states.

                            The Supreme Court can rule Congressional or State laws unconstitutional then, but only as part of the opinion to a case.
                            “I give you a new commandment, that you love one another. Just as I have loved you, you also should love one another. By this everyone will know that you are my disciples, if you have love for one another.”
                            - John 13:34-35 (NRSV)

                            Comment


                            • #15
                              Re: A quick couple of questions about judicial review

                              Originally posted by johncmcleod
                              And what if a state law is unconstitutional? Is the state supreme court the only one allowed to review it? What if they don't strike it down as unconstitutional? Can the supreme court step in and do this? And how is this done? Does one of the justices just say, "Hey. That law down in Alabama is unconstitutional, let's review it."
                              No. First, when you say "unconstitutional," I assume that you're referring strictly to the federal constitution, not to state constitutions (that's a subject for a whole different discussion). With that caveat, a complainant can bring an action in federal or state court to challenge a law. State laws can be reviewed by either state or federal courts, as can federal laws. There must be some "case or controversy" for a court to hear the action. If the action is filed in state court, and challenges a law based on the federal constitution, the defendants can then remove it to federal court, if they all agree to do so. If they remove it, it would go to district court, then (if appealed) to an appellate court, then may try to go to SCOTUS if appealed again. If the defendants do not remove the case, it would go from the trial-level court through the state appellate process to the state supreme court and the losing party might then try to get the case before the SCOTUS.
                              Last edited by Aabraxan; October 26, 2005, 09:50.

                              Comment

                              Working...
                              X