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Supreme Court (2) (Judicial Review (Power of the SC is to declare acts of…
Supreme Court (2)
Judicial Review
Power of the SC is to declare acts of congress or actions of the executive- or acts or actions of state government unconstitutional therefore null and void
The Supreme Court found this power for itself in the 1803 case Marbury vs. Madison- first time the SC declared an act of Congress unconstitutional.
By using its power of judicial review, the court can update the meaning of the constitution, hence the court decides what the 8th amendment forbidding cruel and unusual punishment means today
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The SC has involved itself in a host of political issues – acting as grantor of fundamental civil rights and liberties – S.C has made landmark decisions on issues such as rights of racial minorities, capital minorities, gun control & freedom of speech
The power of judicial review gives the court political importance but also turns it into a quasi-legislative body because decisions have almost the same effect of a law having passed by Congress
EG; Roe vs Wade- court stated women have the constitutional right to an abortion – effect was comparable to an abortion rights law.
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Too much power?
Checked by Congress: Senate confirms all appointments, power to impeach, Congress can initiate constitutional amendments to overturn rulings.
Recent, although unsuccessful examples:flag desecration, abortion, and prayers in state schools.
Checks by President: Nomination of judges, can openly criticise court, the power to pardon. (Trump pardoning Jack Johnson)
Other checks: some parts of the constitution are unambiguous, No enforcement powers (Brown v Board – only implemented by Eisenhower sending in troops to Little Rock in 1957), has to wait for a case to come before it
Due Process
No precise legal definition of the term has been made, it is understood to refer to the principle of limited government.
Substantive due process demands that the substance of the law must not be arbitrary, unreasonable or unconstitutional
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