Judicial Review Quotes

He had meditated changing his lodgings; but now, on a judicial review of the case in all its bearings, his calmer judgment told him that the race of landladies is like to the race of the leaves, and that there was but little to choose between them.

judicial review has permitted the Justices of the Supreme Court to impose their own biases, prejudices, and desires on the rest of the nation under the guise of constitutional interpretation.

When we recognize that legal rules are simply formulae describing uniformities of judicial decision, that legal concepts likewise are patterns or functions of judicial decisions, that decisions themselves are not products of logical parthenogenesis born of pre-existing legal principles but are social events with social causes and consequences, then we are ready for the serious business of appraising law and legal institutions in terms of some standard of human values.” Felix Cohen, Columbia Law Review, 1935

When virtually the whole of a society, including supposedly thoughtful, educated, intelligent persons, commits itself to belief in propositions that collapse into absurdity upon the slightest exami­nation, the reason is not hallucination or delusion or even simple hypocrisy; rather, it is ideology. And ideology is impossible for anyone to analyze rationally who remains trapped on its terrain. That is why race still proves so hard for historians to deal with historically, rather than in terms of metaphysics, religion, or socio-(that is, pseudo-) biology. Nothing so well illustrates that impossibility as the convic­tion among otherwise sensible scholars that race "explains" historical phenomena; specifically, that it explains why people of African descent have been set apart for treatment different from that accorded to others. But race is just the name assigned to the phenomenon, which it no more explains than judicial review "explains" why the United States Supreme Court can declare acts of Congress unconstitutional, or than Civil War "explains" why Americans fought each other between 1861 and 1865.

The Supreme Court, the final arbiter of legal conflicts, reviews, acts of the executive and Congress. With this power, the Court is seen as a political institution as well. "Because the key provisions of the Constitution are couched in grand ambiguities and because the key provisions concern the larger issues of our life, of our liberties, and of our happiness, the Supreme Court, by the exercise of judicial review, wields tremendous political power," Joaquin Bernas, a Jesuit priest and constitutionalist, said.

Manner is everything,” an elegant translation of that judicial axiom: “Form over content.

Although the delegates appear to have assumed that the federal courts would exercise some form of judicial review over federal and state laws, Article III says nothing explicit on the subject. It states in broad terms that the federal courts’ judicial power “shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties.

The Court’s exercise of judicial review is an ever-present and renewable source of interbranch tension. While the court-stripping efforts were responses to the Supreme Court’s constitutional rulings, Congress pushes back regularly and more productively against the Court’s statutory decisions. In the early 1990s, Congress responded sharply to the Court’s rightward turn in a series of civil rights cases decided several years earlier.

Like any magic, you have to be careful with a magical song—listen to it too often, and it will become routine. You’ll hear the chord changes before they come, and the song will lose its ability to surprise and teleport you. But if I’m judicious with a magical song, it can take me back to places more vividly than any other form of memory.

The decision’s significance, of course, lay in the Court’s assertion of authority to review the constitutionality of acts of Congress. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall declared—a line that the Court has invoked throughout its history, down to the present. In the guise of modestly disclaiming authority to act, the Court had assumed for itself great power.

Across Western nations, shell-shocked citizens experienced all the well-worn tactics of rising totalitarianism—mass propaganda and censorship, the orchestrated promotion of terror, the manipulation of science, the suppression of debate, the vilification of dissent, and use of force to prevent protest. Conscientious objectors who resisted these unwanted, experimental, zero-liability medical interventions faced orchestrated gaslighting, marginalization, and scapegoating. American lives and livelihoods were shattered by a bewildering array of draconian diktats imposed without legislative approval or judicial review, risk assessment, or scientific citation. So-called Emergency Orders closed our businesses, schools and churches, made unprecedented intrusions into privacy, and disrupted our most treasured social and family relationships. Citizens the world over were ordered to stay in their homes.

In fact, only six days later, with Chief Justice Marshall not participating, the Court avoided a possible constitutional confrontation. Voting 5–0 in Stuart v. Laird (1803), the justices upheld Congress’s repeal of the Judiciary Act of 1801, a move some historians see as reflecting the Court’s unwillingness to test the full dimensions of the power it had just claimed for itself. More than half a century would pass before the Supreme Court again declared an act of Congress unconstitutional. That was the Dred Scott decision of 1857 (Scott v. Sandford), invalidating the Missouri Compromise and holding that Congress lacked authority to abolish slavery in the territories. That notorious decision, a step on the road to the Civil War, was perhaps not the best advertisement for judicial review. But since then, the Court has lost its early reticence. It has declared acts of Congress unconstitutional more than 150 times.

There are really only two standards of appellate review: plenary and deferential. Conventionally there are four basic standards (with many variants), which in ascending order of deference to the trial court or administrative agency are de novo, clearly erroneous, substantial evidence, and abuse of discretion. But the last three are, in practice, the same, because finer distinctions are beyond judges’ cognitive capacity. The multiplication of unusual distinctions is a familiar judicial pathology.

In urging the court to invalidate the Trespass Act, Hamilton expounded the all-important doctrine of judicial review—the notion that high courts had a right to scrutinize laws and if necessary declare them void. To appreciate the originality of this argument, we must recall that the country still lacked a federal judiciary. The state legislatures had been deemed the most perfect expression of the popular will and were supposed to possess supreme power. Mrs. Rutgers’s lawyers asserted state supremacy and said congressional action could not bind the New York legislature. At bottom, Rutgers v. Waddington addressed fundamental questions of political power in the new country. Would a treaty ratified by Congress trump state law? Could the judiciary override the legislature? And would America function as a true country or a loose federation of states? Hamilton left no doubt that states should bow to a central government: “It must be conceded that the legislature of one state cannot repeal the law of the United States.

be “a familiar judicial exercise.”46 My colleagues believed the courts should not avoid the question by invoking the “political question” doctrine.47 They consequently sent the case back to the lower court for a decision on the merits.48 Though alone, I saw the case differently. “In the Middle East,” I wrote, “administrative matters can have implications that extend far beyond the purely administrative.”49 The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an “official decision by the United States to begin to treat Jerusalem as a city” under Israeli sovereignty.50 She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves.51 What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-related question. The upshot is that neither the classical view of Cicero nor the “political question” doctrine prevents today’s Court from reaching, and deciding the merits of, many questions in which security and civil liberties collide. But there are other doctrines, embodied in other cases, that have had much the same effect.

questioning the lawfulness of a long-standing State Department policy specifying that the birthplace of an American citizen born in Jerusalem be given as “Jerusalem” rather than “Israel or Jordan” in his passport.43 The courts were asked to review this policy in light of a congressional statute requiring the State Department to describe the birthplace as “Israel” if the citizen so wished. Did the statute unconstitutionally interfere with the President’s power to conduct foreign affairs?44 The lower courts had decided that the case presented an unreviewable political question.45 But the Supreme Court held to the contrary. All the justices but one (and I was the one) considered the matter of deciding what the statute meant and whether it was constitutional to be “a familiar judicial exercise.”46 My colleagues believed the courts should not avoid the question by invoking the “political question” doctrine.47 They consequently sent the case back to the lower court for a decision on the merits.48 Though alone, I saw the case differently. “In the Middle East,” I wrote, “administrative matters can have implications that extend far beyond the purely administrative.”49 The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an “official decision by the United States to begin to treat Jerusalem as a city” under Israeli sovereignty.50 She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves.51 What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-related question. The upshot is that neither the classical view of Cicero nor the “political question” doctrine prevents today’s Court from reaching, and deciding the merits of, many questions in which security and civil liberties collide. But there are other doctrines, embodied in other cases, that have had much the same effect.

The most comprehensive studies of racial bias in the exercise of prosecutorial and judicial discretion involve the treatment of juveniles. These studies have shown that youth of color are more likely to be arrested, detained, formally charged, transferred to adult court, and confined to secure residential facilities than their white counterparts.65 A report in 2000 observed that among youth who have never been sent to a juvenile prison before, African Americans were more than six times as likely as whites to be sentenced to prison for identical crimes.66 A study sponsored by the U.S. Justice Department and several of the nation’s leading foundations, published in 2007, found that the impact of the biased treatment is magnified with each additional step into the criminal justice system. African American youth account for 16 percent of all youth, 28 percent of all juvenile arrests, 35 percent of the youth waived to adult criminal court, and 58 percent of youth admitted to state adult prison.67 A major reason for these disparities is unconscious and conscious racial biases infecting decision making. In the state of Washington, for example, a review of juvenile sentencing reports found that prosecutors routinely described black and white offenders differently.68 Blacks committed crimes because of internal personality flaws such as disrespect. Whites did so because of external conditions such as family conflict. The risk that prosecutorial discretion will be racially biased is especially acute in the drug enforcement context, where virtually identical behavior is susceptible to a wide variety of interpretations and responses and the media imagery and political discourse has been so thoroughly racialized. Whether a kid is perceived as a dangerous drug-dealing thug or instead is viewed as a good kid who was merely experimenting with drugs and selling to a few of his friends has to do with the ways in which information about illegal drug activity is processed and interpreted, in a social climate in which drug dealing is racially defined. As a former U.S. Attorney explained: I had an [assistant U.S. attorney who] wanted to drop the gun charge against the defendant [in a case in which] there were no extenuating circumstances. I asked, “Why do you want to drop the gun offense?” And he said, “‘He’s a rural guy and grew up on a farm. The gun he had with him was a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles, and it’s not like he was a gun-toting drug dealer.” But he was a gun-toting drug dealer, exactly.

Legislatures, so this story goes, are hamstrung in their ability to enact the will of the people due to the growing power of bureaucrats, the large role played by central banks, the rise of judicial review, and the greater importance of international treaties and organizations. But there is also another big piece of the undemocratic puzzle: Even in areas where parliaments retain real power, they do a bad job of translating the views of the people into public policy. Elected by the people to represent their views, legislators have become increasingly insulated from the popular will.

In conclusion, by the time Marbury v. Madison came before the Supreme Court in 1803, judicial review was firmly implanted in American law.

Judicial review involves a court overturning an act of Congress or of the executive branch on the grounds that the act in question contravenes the federal Constitution. It is founded on the principle that courts will be unbiased guardians of the clear meaning of the Constitution.

Hamilton articulated fundamental concepts that he later expanded upon in The Federalist Papers, concepts central to the future of American jurisprudence. In renting the property to Waddington, he declared, the British had abided by the law of nations, which allowed for the wartime use of property in occupied territory. New York’s Trespass Act violated both the law of nations and the 1783 peace treaty with England, which had been ratified by Congress. In urging the court to invalidate the Trespass Act, Hamilton expounded the all-important doctrine of judicial review—the notion that high courts had a right to scrutinize laws and if necessary declare them void.

Even though today few would argue that the Court does not have the power of judicial review, such was not the case when Chief Justice John Marshall authored the Marbury decision. However, after this landmark decision, the assertion that the Supreme Court had the authority to interpret the Constitution and to void the acts of other branches of government on this basis was rapidly accepted. This decision established the Supreme Court as the supreme keeper of the Constitution to the exclusion of the executive and legislative branches of our government.

The Supreme Court first asserted its right to judicial review of all actions taken by the other branches of government in the case of Marbury v. Madison, 5 U.S. 137 (1803). This was the most famous, or infamous, decision handed down by the Marshall Court, and it was important for at least two reasons. First, the Court marked new territory for itself by asserting it had a judicial power to review the acts of other branches of the federal government. Additionally, this case signified the first time the Supreme Court declared an act of Congress to be unconstitutional. This would only happen one other time before the Civil War.

The concept of “judicial review” has shaped American jurisprudence like no other. The term itself is not found in the Constitution.

A corrupt and dynastic political party is antithetical to the rule of law and to carefully crafted constitutional checks and balances to prevent abuse of power. A tendency towards autocracy and consequent institutional subversion is inevitable with a party thus configured. The result is a prime minister bereft of real power, subservient to the dynastic head and a mute spectator to the loot and plunder of the nation’s resources; a president who is a loyal camp follower and will faithfully rubber stamp the decisions ordained by the dynasty: witness how unhesitatingly President Fakhruddin Ali Ahmed signed the Proclamation of Emergency at Mrs. Gandhi’s bidding in 1975 and ponder whether Mrs. Pratibha Patil, (besieged as she was by her co-operative sugar factory in liquidation, her co-operative bank bankrupt, and her family embroiled in the murder case of a popular intra-party rival in Jalgaon at the time of her nomination by Mrs. Sonia Gandhi), would have done otherwise; or for that matter whether President Pranab Mukherjee, whose many acts of subversion of the Constitution during the Emergency have been documented by the Shah Commission, is so radically transformed that he would now protect it; a judiciary accused of judicial overreach when it censures the government or brings its ministers to book while its inconvenient judgments are subjected to review or Presidential Reference; a CAG whose findings against the government’s decisions are vilified as being patently erroneous, in excess of jurisdiction and even motivated, although that august body, the Constituent Assembly had opined that as the guardian of the nation’s finances, the CAG was as important a Constitutional functionary as the justices of the Supreme Court; a CVC appointed despite the taint of corruption and over the protest of the leader of the Opposition, whose appointment was finally quashed by the Supreme Court; and a CBI whose only role on empirical evidence is to falsely implicate political opponents and wrongly exonerate the regime’s members and cronies.

American intelligence, by contrast, sharply distinguishes between foreign and domestic targets. Almost all American intelligence is aimed abroad, at foreign allies and adversaries. Only one of the eighteen intelligence agencies has domestic intelligence collection as a core mission: the Federal Bureau of Investigation, which is housed within the Department of Justice and operates with extensive legal and policy constraints, judicial review, and congressional oversight to protect American rights.36 The National Security Act of 1947 explicitly prohibits the CIA from exercising any “police, subpoena, law-enforcement powers, or internal-security functions.

The absolute latest date where judicial review became a generally recognized tool of government is 1803, with the famous case of Marbury v. Madison. There is an incorrect but popular notion, not so much among scholars but among lawyers and the general public, that judicial review was “invented” by Chief Justice John Marshall in that case.73 But the evidence demonstrates that judicial review in fact goes back earlier to at least the framing of the U.S. Constitution. And arguably, at least as an idea, back to inventive common law judges in England, especially Lord Edward Coke (pronounced “cook”).

The Random Book Club is an offshoot of the shop which I set up a few years ago when business was sore and the future looked bleak. For £59 a year subscribers receive a book a month, but they have no say over what genre of book they receive, and quality control is entirely down to me. I am extremely judicious in what I choose to put in the box from which the RBC books are parcelled and sent. Since subscribers are clearly inveterate readers, I always take care to pick books that I think anyone who loves reading for its own sake would enjoy. There is nothing that would require too much technical expertise to understand: a mix of fiction and non-fiction, with the weight slightly towards non-fiction, and some poetry. Among the books going out later this month are a copy of Clive James’s Other Passports, Lawrence Durrell’s Prospero’s Cell, Iris Murdoch’s biography of Sartre, Neville Shute’s A Town Like Alice, and a book called 100+ Principles of Genetics. All the books are in good condition, none is ex-library, and some – several of them each year – are hundreds of years old. I estimate that if the members decided to sell the books on eBay, they would more than make their money back. There is a forum on the web site, but nobody uses it, which gives me an insight into the type of person who is attracted to the idea – they don’t like clubs where they have to interact with other people. Perhaps that is why I came up with the idea in the first place – it is a sort of Groucho Marx approach to clubs. There are about 150 members and, apart from a minimal amount of advertising in the Literary Review, the only marketing I do is to have a web site and Facebook page, neither of which I have updated for some time. Word of mouth seems to have been the best way of marketing it. It has saved me from financial embarrassment during a very difficult time in the book trade.

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Once the Constitution became a legal rather than a political document, judicial review, although not judicial supremacy, became inevitable.

Only once before, in the landmark case of Marbury v. Madison, which established the principle of judicial review, had the Court invalidated an act of Congress on constitutional grounds. John McLean of Ohio and Benjamin R. Curtis of Massachusetts dissented; Curtis was so outraged by the decision that he resigned from the bench. Much

This noncompetitive sale of public property for private gain was being duplicated around the country. The government has orchestrated the sale of state assets to new private business ventures that had close ties to top officials and their families. The government used the same dictatorial powers to declare privately held lands part of new “development zones” to sell those, in turn, to business ventures tied to the government. This was all done behind closed doors with no competitive bidding, public hearings or judicial review.

The Supreme Court was beyond their constitutional power when they handed George W. Bush the victory in 2000 by ruling that if all the votes were counted in Florida, as that state’s supreme court had ordered, it would “cause irreparable harm to petitioner [George W. Bush].” They were beyond their constitutional power every single time they struck down a law passed by Congress and signed by the president over the years. And most important, the Supreme Court was way beyond their constitutional authority every single time they created out of whole cloth new legal doctrines, such as “separate but equal” in Plessy v. Ferguson, “privacy” in Roe v. Wade, or “corporations are people” in Citizens United v. Federal Election Commission. But in the fine tradition of John Marshall, today’s Supreme Court wants you to believe that they are the über-overlords of our nation. They can make George W. Bush president, without any appeal. They can make money into speech, they can turn corporations into people, and the rest of us have no say in it. And they’re wrong. It’s not what the Constitution says, and it’s not what most of our Founders said. Which raises the question: If the Supreme Court can’t decide what is and what isn’t constitutional, then what is its purpose? What’s it really supposed to be doing? The answer to that is laid out in the Constitution in plain black-and-white. It’s the first court where the nation goes for cases involving disputes about treaties, ambassadors, controversies between two or more states, between a state and citizen of another state, between citizens of different states, and between our country and foreign states. Read Article 3, Section 2 of the Constitution—it’s all there. Not a word in there about “judicial supremacy” or “judicial review”—the supposed powers of the court to strike down (or write) laws by deciding what is and what isn’t constitutional. President Thomas Jefferson was pretty clear about that—as were most of the Founders—and the court didn’t start seriously deciding “constitutionality” until after all of them were dead. But back in the day, here’s what Jefferson had to say: The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves… When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.177 Their elective capacity? That’s a fancy presidential-founder way of saying that the people can toss out on their butts any member of Congress or any president who behaves in a way that’s unconstitutional. The ultimate remedy is with the people—it’s the ballot box. If we don’t like the laws being passed, then we elect new legislators and a new president. It’s pretty simple.

On behalf of the deference under the Administrative Procedure Act, it is said that Congress is not constitutionally barred from authorizing deference—as if Congress can detract from the office of the judges. The office of the judges, however, was an element of the Constitution’s grant of judicial power, and it required the judges to exercise independent judgment in accord with the law of the land. Put another way, when the Constitution authorized judicial power, it took for granted that judges, by their nature, had such a duty.19 This judicial duty was recognized very early, because it was the foundation of what nowadays is called “judicial review.” When writing about the judicial power of North Carolina in 1786, James Iredell explained: “The duty of the power I conceive, in all cases, is to decide according to the laws of the state,” and as “the constitution is a law of the state,” a statute “inconsistent with the constitution is void.” Or as put by John Marshall in Marbury v. Madison, where “both the law and the constitution apply to a particular case” the court “must determine which of these conflicting rules governs the case,” this being “of the very essence of judicial duty.”20 Judicial review, in other words, is entailed by judicial duty—a duty that accompanies judicial power and that requires judges to exercise their own independent judgment in following the law. And another result of this duty is that a mere statute cannot justify the judges in abandoning their independent judgment or in following extralegal rules or interpretations. As if this were not enough, the U.S. Constitution adds that no person shall be “deprived of life, liberty, or property, without due process of law.” If this means anything, it surely requires a judge not to defer to one of the parties, let alone to defer systematically to the government. Nonetheless, on the basis of a mere statute, the judges generally defer. The next step is to examine the varieties

We have had campaign-finance reform, and reform of the seniority system in Congress, and endless rounds of anticorruption measures in the federal government. Calls for “transparency” and “accountability” have meant more administrative and judicial supervision. In turn, power flows to impersonal institutions (agency review boards, courts, and so on) and away from elected leaders who can get things done—and who can be punished at the ballot box for delay and disappointment.

the American system of checks and balances disperses federal lawmaking authority among multiple, overlapping political forums. As a result, federal policymaking power is shared: Congress is given the primary power to draft laws, subject to the president's veto and judicial review; the executive branch is given the primary power to implement laws, subject to congressional oversight and judicial review; and the courts have the primary power to interpret laws, subject to a variety of legislative and executive checks, including the appointment process, budgetary powers, and the passage of "overrides"-laws that explicitly reverse or materially modify existing judicial interpretations of statutes.

The presumption took hold and grew ever firmer that it was the business of government to find solutions to all such problems. Any minister who sought to say that there was nothing that he could or should try to do about them was at once forced on to his defensive back foot by media and parliamentary pressure. At the same time, more citizens were ready to complain about the shortcomings of existing services, and more numerous and competent pressure groups, like the claimants’ unions I had come across in supplementary benefits, arose to pursue their complaints. To cap it all, the courts began, and went on to widen, the practice of subjecting the administrative decisions of ministers to judicial review. No wonder that the ministers themselves, also wilting (as their American and French counterparts were not) under the pressures of increasing parliamentary business, found themselves in difficulties.

These days, each of the federal branches has seized expanded authority over the states and the individual. In addition to Congress’s legislative authority, it is now commonplace for the courts to legislate by judicial review and the executive branch to legislate by regulation and executive order. More to the justification of the proposed amendment, the vastness of the federal bureaucracy—that is, an administrative state or what has become a fourth branch of government—destroys the very idea of a representative legislature and does severe damage to the separation-of-powers doctrine.

Respect for judicial review and the finality of court decisions is central to the rule of law.

In a second stage the aim is habituation. Whereas lawsuits and investigations unwind at the tedious pace of democratic institutions, Google continues the development of its contested practices at high velocity. During the elapsed time of FTC and FCC inquiries, court cases, judicial reviews, and EU Commission investigations, the new contested practices become more firmly established as institutional facts, rapidly bolstered by growing ecosystems of stakeholders. People habituate to the incursion with some combination of agreement, helplessness, and resignation. The sense of astonishment and outrage dissipates. The incursion itself, once unthinkable, slowly worms its way into the ordinary. Worse still, it gradually comes to seem inevitable. New dependencies develop. As populations grow numb, it becomes more difficult for individuals and groups to complain.

the judiciary, and particularly to the change in legal thought and in the position of the judge that culminated in the new principle of judicial review of statutes (as a means of sabotaging social reforms). The power of the judges thereby grew at the expense of the parliament.*

A title must muddle the reader’s ideas, not regiment them. Nothing is of greater consolation to the author of a novel than the discovery of readings he had not conceived but which are then prompted by his readers. When I wrote theoretical works, my attitude toward reviewers was judicial: Have they or have they not understood what I meant? With a novel, the situation is completely different. I am not saying that the author may not find a discovered reading perverse; but even if he does, he must remain silent, allow others to challenge it, text in hand. For that matter, the large majority of readings reveal effects of sense that one had not thought of. But what does not having thought of them mean?

constitutional system contains an unusually large number of counter-majoritarian institutions. These include the following: The Bill of Rights, which was added to the Constitution in 1791, just after the Constitutional Convention in Philadelphia. A Supreme Court with lifetime appointments for justices and power of judicial review, or the authority to strike down as unconstitutional laws passed by congressional majorities. Federalism, which devolves considerable lawmaking power to state and local governments, beyond the reach of national majorities. A bicameral Congress, which means that two legislative majorities are required to pass laws.

Against the backdrop of frequent and highly visible gubernatorial vetoes in the colonial era, the Constitution carefully specified the procedures to be followed whenever the president sought to negative a congressional bill. Yet the document failed to specify comparable procedures to be followed when judges sought to void Congress’s output—a small but telling sign that the Founders, with little actual experience with judicial review, did not anticipate that the judicial negative would one day surpass the executive negative as a check on Congress.

Hamilton had always regarded the judiciary as the final fortress of liberty and the most vulnerable branch of government. John Marshall remedied that deficiency, and many of the great Supreme Court decisions he handed down were based on concepts articulated by Hamilton. In writing the decision in Marbury v. Madison (1803), Marshall established the principle of judicial review—the court’s authority to declare acts of Congress unconstitutional—drawing liberally on Hamilton’s Federalist number 78. His decision in the landmark case of McCulloch v. Maryland (1819) owed a great deal to the doctrine of implied powers spelled out by Hamilton in his 1791 opinion on the legality of a central bank.

Getting somebody confirmed to the Supreme Court has never been a slam dunk, in part because the Court’s role in American government has always been controversial. After all, the idea of giving nine unelected, tenured-for-life lawyers in black robes the power to strike down laws passed by a majority of the people’s representatives doesn’t sound very democratic. But since Marbury v. Madison, the 1803 Supreme Court case that gave the Court final say on the meaning of the U.S. Constitution and established the principle of judicial review over the actions of the Congress and the president, that’s how our system of checks and balances has worked. In theory, Supreme Court justices don’t “make law” when exercising these powers; instead, they’re supposed to merely “interpret” the Constitution, helping to bridge how its provisions were understood by the framers and how they apply to the world we live in today. For the bulk of constitutional cases coming before the Court, the theory holds up pretty well. Justices have for the most part felt bound by the text of the Constitution and precedents set by earlier courts, even when doing so results in an outcome they don’t personally agree with. Throughout American history, though, the most important cases have involved deciphering the meaning of phrases like “due process,” “privileges and immunities,” “equal protection,” or “establishment of religion”—terms so vague that it’s doubtful any two Founding Fathers agreed on exactly what they meant. This ambiguity gives individual justices all kinds of room to “interpret” in ways that reflect their moral judgments, political preferences, biases, and fears. That’s why in the 1930s a mostly conservative Court could rule that FDR’s New Deal policies violated the Constitution, while forty years later a mostly liberal Court could rule that the Constitution grants Congress almost unlimited power to regulate the economy.

the Constitution. As in the United States, statute and common law are subject to judicial interpretation, but there is no power of judicial review, at least not as the term is understood in the United States. The courts can influence and to some extent mold certain provisions through their interpretation of statute and common law. Indeed, their use of common

His path was in some ways traditional—Stanford to Stanford Law to judicial clerkship to high-powered law firm—but it was also marked by bouts of rebellion. At Stanford he created and published a radical conservative journal called The Stanford Review, then he wrote a book that railed against multiculturalism and “militant homosexuals” on campus, despite being both gay and foreign born. His friends thought he might become a political pundit. Instead he became a lawyer. Then one day, surprising even himself, he walked out of one of the most prestigious securities law firms in the world, Sullivan & Cromwell, after seven months and three days on the job. Within a few short years, Thiel formed and then sold PayPal, an online payments company, to eBay for $ 1.5 billion in July 2002, the month that Nick Denton registered the domain for his first site, Gizmodo. With proceeds of some $ 55 million, Thiel assembled an empire. He retooled a hedge fund called Clarium into a vehicle to make large, counterintuitive bets on global macro trends, seeding it with $ 10 million of his own money. In 2003, Thiel registered a company called Palantir with the Securities and Exchange Commission. In 2004, he would found it in earnest. The company would take antifraud technology from PayPal and apply it to intelligence gathering—fighting terrorism, predicting crime, providing military insights. It would take money from the venture capital arm of the CIA and soon take on almost every other arm of the government as clients.

I demand a closed chamber, for regrettably, what the accused has proposed to reveal here is a danger to public morals. The defendant, infected by his wife’s dissoluteness, which judicial language lacks words to describe, is the most appalling specimen I have ever come across in the long course of my life as a guardian of order and morals. Look at him, how he sits there, his gaze unmoved, at his table at the inn, hatching his plans for murder, necrophilia, and sodomy, le visage blême, serrant dans la main gauche la fiole avec le poison [50]—the palefaced killer!

Cable news is no more a town crier or gazetteer of the nation. It has gained the propensity of impinging on the power of the judiciary. Media trials during the prime time outmaneuvered and delineated the irreverent image to the power of judicial review. However, the presence of journalistic vulturism, sycophancy has downplayed their role as the fourth pillar of the state.

Cixi began to revolutionise China's legal system. In May 1902, she decreed a wholesale review of 'all existing laws...with reference to the laws of other nations...to ensure that Chinese laws are compatible with those of foreign countries'. With a legal reform team headed by a remarkable mind, Shen Jiaben, who had a comprehensive knowledge of traditional laws and had studied several differentWestern codes, a brand-new legal structure based on Western models was created in the course of the decade, covering a whole range of commercial, civil, criminal laws and judicial procedures. Cixi approved the team's recommendations and personally decreed many landmark changes. On 24 April 1905, the notorious 'death by a thousand cuts' was abolished, with a somewhat defensive explanation from Ci:xi that this horrific form of execution had not been a Manchu practice in the first place. In a separate decree, torture during interrogation was prohibited. Up to that point it was universally regarded as indispensable to obtain confessions; now it was deemed 'only permissible to be used on those whom there was enough evidence to convict and sentence to death, but who still would not admit guilt'. Cixi made a point of expressing her 'loathing' for those who had a penchant for torture, and warned that they would be severely punished if they failed to observe the. new constraints. Prisons and detention centres were to be run humanely; the abuse of inmates would not be tolerated. Law schools were to be set up in the capital and provinces, and law studies were to be made a part of general education. Under her a legal framework began to be constructed.