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Judicial Review

The opinions expressed by columnists are their own and do not necessarily represent the views of

Everything I know about Constitutional law I learned in one three-hour class at Marietta College, Marietta, Ohio 45750 taught by Dr. Robert Hill.

It turns out I learned a lot. In fact, had I known you could learn that much in college by actually going to class, I would have spent much more time on campus and much less time … recovering (if you know what I mean and I think you do).

Anyway, one of the cases we studied was titled (or, as we survivors of Dr. Hill's Con Law class like to put it, "styled") Marbury v. Madison which was decided in 1803.

It had to do with a lame duck President (John Adams) appointing magistrates who were confirmed by a lame duck Congress but whose commissions weren't delivered until after the new President, Thomas Jefferson, had been sworn in.

The new Secretary of State, James Madison, invalidated many of the commissions including one for James Marbury, who sued Madison. Hence the name of the case.

Bibbity-bobbity-boo and whatta-ya got?

Chief Justice John Marshall writes an opinion (based on a unanimous 4-0 decision) holding that the Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void.

This concept has become so ingrained in American law and politics than no one has seriously sought to challenge it.

Dear Mr. Mullings

Didn't Newt Gingrich say if he were President he would ignore Supreme Court decisions with which he disagreed?

Yes, but you might have missed the word "seriously."

To show how powerful this concept is to the American system of government, in 2000 the Supreme Court ruled by a vote of 5-4 in favor of Gov. George W. Bush and Richard Cheney and against Vice President Albert Gore, Jr. and Sen. Joseph Lieberman in the case dealing with the Florida recount.

The issue was whether the Florida Supreme Court had acted properly in ordering recounts in some counties. The U.S. Supreme Court decided it had not; but not happily nor easily. From the decision (which was written Per Curiam - without a specific author named) ends with this:

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

One wonders whether Mr. Gingrich would have suggested President Bill Clinton had the authority to overrule the U.S. Supreme Court and order the recount to continue in Florida.

Even FDR whose concern for the niceties of the Constitutional limits on the Executive Branch was almost non-existent, attempted to "pack the Court" by adding Justices who would tip the balance in his favor.

The current Supreme Court case that has the cable chat shows in a projectile sweat is the Department of Health & Human Services v. Florida: Whether some or all of the Affordable Care Act (Obamacare) is Constitutional.

The first day of arguments had to do with an arcane law (the Anti-Injunction Act of 1867) that forbids Federal courts ruling on the legitimacy of a tax law before the law goes into effect.

The reason for the law was to prevent people opposed to a given tax from suing and asking a court to issue a restraining order preventing the collection of that tax as a method to prevent any new taxes.

Waiiiiittttt a minute. Just how old is Grover Norquist?

The other to major questions are: Is the individual mandate Constitutional; and, if it is not, does that invalidate the entire law?

The play-by-play after the first full day of arguments over the personal mandate had Court watchers guessing (by the tone and number of questions from the various Justices) that the Court might be leaning toward a ruling of Unconsitutional.

The Court will probably not issue a ruling before the very end of the current term - sometime this Summer - so you don't have to stay up tonight waiting for the jury to come back.

As Supreme Court Justices say at the end of their decisions: It is so ordered.

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