Judiciary Power: Can Courts Repeal Laws?

In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or the United States Constitution. The Constitution is considered the fundamental and paramount law of the nation, and it cannot be altered by an ordinary act of the legislature. The power of judicial review gives courts the ability to impose their own views of the law, and it is considered a crucial mechanism to prevent laws that violate the Constitution from being made and enforced. However, critics argue that it gives the courts the ability to impose their own views of the law without adequate checks from other branches of government.

Judicial review

The US Constitution does not explicitly define the power of judicial review, but the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution. This power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the US Constitution. Judicial review of the government was established in the landmark decision of Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional.

The first American decision to recognize the principle of judicial review was Bayard v. Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor. The North Carolina court and its counterparts in other states treated state constitutions as statements of governing law to be interpreted and applied by judges. These courts reasoned that because their state constitution was the fundamental law of the state, they must apply the state constitution rather than an act of the legislature that was inconsistent with it.

In the period 1960–2019, the Supreme Court held 483 laws unconstitutional in whole or in part. The Supreme Court has been reluctant to construe a federal statute as precluding judicial review of a claim that the government has acted unconstitutionally. The Congressional Review Act (CRA) and the Administrative Procedure Act (APA) work together to protect private parties against actual, threatened, or potential lawless agency action.

The US Supreme Court

While the US Supreme Court cannot directly repeal laws, its power of judicial review serves as a critical check and balance in the US legal system. By evaluating the constitutionality of laws, the Court ensures that the rights and freedoms guaranteed by the Constitution are upheld. This process reinforces the separation of powers and prevents the overreach of legislative authority. When a law is found to be inconsistent with the Constitution, it is typically left to the legislature to address the issue by amending or repealing the law in question.

In summary, while the US Supreme Court cannot repeal laws itself, it plays a vital role in interpreting the Constitution and safeguarding against unconstitutional legislation. Its power of judicial review allows it to strike down laws that violate constitutional principles, thus preserving the balance of powers and protecting the rights of citizens. When laws are found to be inconsistent with the Constitution, it is the responsibility of the legislative branch to take corrective action, either by modifying or repealing the law to bring it into compliance with constitutional requirements.

Marshall's opinion

In the United States, judicial review refers to the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or the United States Constitution. While the US Constitution does not explicitly define the power of judicial review, its authority has been inferred from the structure, provisions, and history of the Constitution.

In his opinion, Marshall stated that the people established a government of limited powers through the Constitution. He argued that the "powers of the Legislature are defined and limited" and that the Constitution is written to ensure these limits are not mistaken or forgotten. According to Marshall, these limits would become meaningless if they could be overridden by those they were meant to restrain. He emphasized that the Constitution is the fundamental and paramount law of the nation and cannot be altered by an ordinary act of the legislature.

One of the first critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. Spaight disagreed with the doctrine, arguing that the courts were usurping authority that was not granted to them by the Constitution. He denied that the courts had the power to declare laws void and that there was nothing in the Constitution to support such a claim.

The Judiciary Act of 1802

The Act also restructured the circuit courts into six circuits, each with one Supreme Court justice. Unlike the 1801 Act, no new circuit judgeships were established, so the justices had to resume the practice of "riding circuit" to hold court in each district within their circuit, alongside the local district judge. The circuit courts were now composed of only two judges, and the Act allowed them to certify any legal questions to the Supreme Court if the two judges disagreed. The district judge was not permitted to hear appeals of their own decisions, so appeals from the district courts were decided by the circuit justice alone.

One of the most significant provisions of the Act was that only one judge was required to convene a circuit court. Consequently, Supreme Court justices could frequently rely on district court judges to convene circuit courts, alleviating the burden of extensive travel. The dates of the Supreme Court term were also changed by the Act, postponing them from June and December to February 1803, effectively cancelling the Supreme Court term for the rest of 1802.

Limits of the Constitution

The Constitution establishes the federal judiciary, with Article III, Section I stating that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." While the Constitution establishes the Supreme Court, it permits Congress to decide how to organise it, including the power to create inferior federal courts.

The Legislative Vesting Clause of the Constitution provides that all legislative powers shall be vested in a Congress of the United States, marking a departure from the British legal tradition of parliamentary supremacy by providing external limitations on the power of Congress. The Framers of the Constitution intended to limit Congress's powers to those specifically enumerated in the Constitution, reflecting their experience as colonists under the rule of the powerful British Parliament of the 1700s.

The Constitution also includes checks on congressional power, such as the President's qualified veto power over legislation, which serves as a safeguard against legislative tyranny. The Supreme Court plays a crucial role in this regard, as it has the authority to strike down state laws found to be in violation of the Constitution, ensuring that each branch of government recognises the limits of its own power.

The Supreme Court's appellate jurisdiction allows it to hear cases on appeal involving points of constitutional or federal law, with some exceptions. However, the Court's jurisdiction can be limited by acts of Congress, which may keep certain classes of cases out of its jurisdiction or subject them to reexamination and review.

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