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The Power of the Federal Judiciary: Sources & Consequences

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  • 0:02 Judical Review
  • 2:06 Judicial Interpretation
  • 4:07 Judicial Activism
  • 5:29 Lesson Summary
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Lesson Transcript
Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

Federal judges and Supreme Court justices make their decisions using different rationales and theories. This lesson explores the power of the federal judiciary, including a discussion of judicial review and judicial activism.

Judicial Review

The United States Supreme Court gains its power from the United States Constitution. The Constitution implies, though doesn't outwardly state, that the Supreme Court has the power to declare laws unconstitutional. This power is known as judicial review and was first recognized through the 1803 Supreme Court case of Marbury v. Madison.

In this famous case, the Supreme Court nullified a portion of the Judiciary Act of 1789. The case is well-known and often cited because it marked the first time the Supreme Court invalidated an act of Congress, and it ushered in a strengthening of the Court's power and position. The Supreme Court now had the final word regarding the Constitution.

The Marbury decision was written by Chief Justice John Marshall, who served as Chief Justice from 1801-1835. Under Marshall, the Supreme Court continued to expand its authority and also that of the national government. The Court was known for practicing judicial nationalism. Using judicial nationalism, the Court often sided with the federal government, even at the expense of the states. For example, we see judicial nationalism at work in the 1824 Supreme Court case of Gibbons v. Ogden. Here, the Court sided with the federal government when declaring that the states had no right to regulate interstate commerce.

However, the Court hasn't always sided with the federal government. By President Franklin Roosevelt's time, the Court shifted. Roosevelt had a difficult time convincing the Court to allow his New Deal legislation in the 1930s. Though recognizing the need, the Court initially declared much of legislation to be unconstitutional.

Judicial Interpretation

Often, a federal judiciary decision is based on an interpretation. Many decisions require statutory interpretation. This is the analysis and understanding of a federal law. The courts often look to the legislative history of a statute in order to determine what the legislators intended when they passed the law.

For example, our federal courts regularly analyze and determine what behavior constitutes discrimination. The federal law prohibits discrimination based on race, color, religion, sex or national origin. Later statutory interpretation led the Supreme Court to rule that 'sex' includes pregnancy, childbirth and other related medical conditions.

The federal judiciary also uses constitutional interpretation. This is the analysis and understanding of the United States Constitution. In other words, federal judges and Supreme Court justices must constantly analyze and determine what certain constitutional provisions mean, such as the Second Amendment's 'right to bear arms.' The Court must decide if this is an absolute right to possess and use firearms. Or, can the government prohibit some, or all, possession and use of firearms?

Some justices, usually conservatives, prefer a literal interpretation of the Constitution. Others, usually liberals, prefer a living Constitution method by which judges and justices may update and reinterpret portions of the Constitution to make it more applicable in light of our current circumstances. Under this theory, many argue the Second Amendment was written to apply only to militias during wartime and that private citizens shouldn't be permitted to possess firearms in everyday circumstances.

Judicial Activism

There's no doubt that federal judges and Supreme Court justices each have a personal viewpoint on matters. Judges and justices are typically labeled and appointed according to their political views. A liberal president usually picks liberal candidates, while conservatives regularly pick conservatives. These political views also affect how a judge or justice views the role of the federal courts.

For example, many conservative judges use a theory of judicial restraint. This is a type of judicial interpretation that emphasizes the limited nature of the court's power. Under this theory, the role of the courts is to interpret existing law, rather than make new law. These judges tend to strictly follow statutes and previously set precedent.

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