Judicial Process in America

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The judicial system of the USA consists of three levels. On the lower level, there are federal districts and specialized courts. On the second level, there are federal appellate courts. The final court of appeal is the Supreme Court of the United States. In contrast to the courts of appeal, it takes the things at its discretion. Only the hundreds of the most important cases are accepted by the Supreme Court out of many thousands of cases.

One of the most important cases is the case of Marbury v. Madison, i.e. a judicial precedent, which provided the extension of the competence of the Supreme Court in the United States to the judicial review of decisions from other branches of the government.

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U.S. Supreme Court

For the first time in the history of the United States, the Supreme Court has recognized the unconstitutional act of the Parliament, creating a precedent for future similar decisions. The consequence of this decision has been the implementation of the principle of checks and balances among the three branches of the government. Thus, the Supreme Court could consider the legislation of the Congress for compliance with the Constitution and repealing these laws, if they are contrary to the fundamental law.

This decision of the Supreme Court has showed the legal subculture, a judicial background, representing the public opinion, politics and any other potential influences, which took place during resolving this case.

Thereof, it seems appropriate to begin with the fact that the U.S. Constitution is a cautiously balanced and equilibrated document. However, it grants the very limited powers to the courts. It does not contemplate avowedly the power of the U.S. Supreme Court to review the constitutionality of legislation or treaty. This essay will discuss the origins of a judicial review, examine what happens when the law is struck down as unconstitutional, as well as present some opposing views on a judicial review.

Whereas the institution of the judicial review is not directly stipulated in the Constitution of the United States, the incorporation of this court function was expected on the eve of adoption of the Fundamental Law of the U.S. Until 1789, the power of the judicial review had been exercised in a number of states. Therefore, state courts declared the unconstitutionality of laws adopted in contravention with the state law.

Furthermore, many of the founding fathers (the authors of the Constitution and the founders of the United States of America) insisted on assuming the power to review court decisions of the U.S. Supreme Court under the Constitution. The best illustration can be found in The Federalist Papers when Alexander Hamilton and James Madison spoke in support of the legal incorporation of the judicial review.

The most extensive discussion of the judicial review was in Federalist No. 78. It was published on May 28, 1788, and written by Alexander Hamilton, who insisted on the legal incorporation of a judicial review institution. He said that the Supreme Court would secure such a situation in which the will of the American society, as expressed in the U.S. Constitution, would prevail over the will of law, which could express only a temporary reflection of the volition of people. Madison was fully confident that the constitutional interpretation should be delegated to a reasonable independent judgment rather than to the controversial political process discretion.

Therefore, the concept of the judicial review that a Court had the power to declare the Acts of law unconstitutional was exceedingly disputable in 1803 when the Supreme Court declared its power in the landmark case of Marbury v. Madison, 5 U.S. 137 (1803). It became the first case to clarify the rights and the legal significance of the judicial review.

This case arose as a result of a political debate that erupted after the presidential elections in 1800, in which a Democratic-Republican Thomas Jefferson defeated the president of the Federalists John Adams. The case began with addressing by William Marbury, appointed by the President John Adams to the position of justice of the District of Columbia, to the Supreme Court to compel the Secretary of State James Madison to issue the relevant patent (the certificate of appointment of judges to the post). According to Marbury, the state government delayed the release of the patent, which prevented him from the exercising of his powers. The court presided over by John Marshall refused the request, citing the fact that his statement referring to the Judiciary Act of 1789) is absolutely contrary to the Constitution of the U. S.

Thomas Jefferson officially became the President of the United States on March 4. He ordered his Secretary of State, James Madison, not to deliver the remaining orders of appointment, hoping that this would delay the delivery, so that they could lose their force. Marbury and several other feds did not receive the documentary evidence of appointment of judges and filed the suit in the U.S. Supreme Court, referring to the rights of Mandamus. Referring to this rights Marbury hoped to force James Madison to deliver the remaining orders of appointment to the feds. The curious fact in this story was when the Chief Justice John Marshall, who was going to hear the case, was too blame for the fact that the orders of appointment did not come down to Marbury and several other feds.

In the case of Marbury v. Madisonб a special ingenuity was displayed by еhe Chief Justice John Marshall, who provided his input to the practice of supervision of the constitutionality of laws of a number of new arguments and conclusions. The Supreme Court, according to the arguments of Marshall, has such judicial powers, which have historically included the authority to interpret the content of laws.

Since the constitutional provision of the rule of the federal law over the state law makes the Constitution the' Supreme law of the State, since then the laws of the United States are issued in pursuance of the Constitution. The judges take an oath to defend the Constitution; therefore, the judges can and has the right to declare any legislative act as the unconstitutional one.

The Chief Justice John Marshall (1755-1835), being appointed to this post shortly before by Adams and who occupied a prominent place in the party close to the President, promoted the adoption of such a decision, which was later assimilated by the value of the second edition of the Constitution.

Thus, the decision of the Supreme Court asserted that the duty of the Court to annul the unconstitutional legislation is a natural result of its sworn duty to act in accordance with the Constitution. In short, the U.S. Supreme Court declared that the right of determination of unconstitutionality of a legal act is an exclusive prerogative of the judicial department.

As the U.S. Constitution endued the Supreme Court with the crucial responsibility in assuring individual rights, many people reasonably look to the Courts to exercise the judicial review to protect minority rights. It means that the Supreme Court uses the power of the judicial review to protect the minority rights by declaring laws unconstitutional if they infringe the rights of minority. This principle can be transformed in the secured one by a court canon, that ”The majority rules, but the minority has rights.“

Some scholars and politicians are the staunch supporters of a viewpoint that only the judicial branch can determine whether congressional laws have been adopted in accordance with the Constitution or not. Others believe that the Congress and the President are responsible for their own actions. Still, others accept as true that ultimately the people of the U.S., electing the Congress and the President, are liable for deciding which legislation corresponds to the U.S. Constitution.

Despite different points of view, at present, the Congress and the states hold some power to influence on what cases come before the Court. E.g., this happened with the right of Congress to define the Supreme Court the appellate jurisdiction, known as jurisdiction stripping.

However, the peculiarity of the Supreme Court’s decisions lies in the frequent tendency of these decisions to become politicized. The ability of the U.S. Supreme Court to legitimize political institutions makes it a constituent government body. Therefore, it discontinues being just a part of the U.S. judicial branch. The best examples of the above mentioned tendency are the decisions of the Supreme Court in Bush v. Gore, 531 U.S. 98 (2000) and in Baker v. Carr, 369 U.S. 186 (1962).

To illustrate the political element of the Supreme Court’s decisions, it is indispensable to notice that until 1962, ruling American parties sought to have ‘cut out’ a voting district in the way that would allow to assure the overrated representation. Therefore, such electoral geography was widely used in the U.S. In 1962, the U.S. Supreme Court declared this practice as illegal and ruled that all constituencies should be cut "substantially equal" in accordance with the principle of ‘one person - one vote.’ Hereby, by making these decisions, the U.S. Supreme Court confirmed that it could make political decisions which would be crucial for the further progress of the U.S. society, affecting every area of a human being.

The decision of the Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989) was one of the best illustrations of the Supreme Court’s social influence. In 1989, by a 5-to-4 decision, the US Supreme Court declared a Texas flag protection law to be the violation of the 1st Amendment's freedom of speech provision.


The Court's decision invalidated laws in force in 48 out of 50 states. The Supreme Court noted that the First Amendment protects the fundamental principle which provided that the authorities have no right to forbid people to express their views because of someone’s objections. However, the time has proved that the majority of American citizens still support the ban on flag burning. The Congress dіd, however, pass a Statute, the 1989-year Flag Protectіon Act, making it a federal crime to desecrate it.

Thereof, one of the most important cases in the history of the U.S. Supreme Court’s decisions is the case Marbury v. Madison, as well as the cases Bush v. Gore and Texas v. Johnson, which has defined the borders, the strength and the basic principles of the judicial review. It, in its turn, has represented and showed the legal subculture, a judicial background, the public opinion, politics and any other potential influences. It took place during resolving this case. Thus, the Court has become a much more powerful and important part of the U.S. judicial process.