Lecture: Political Institutions II: Judiciaries, Courts & Judicial Review
Lecture script · about 15–20 minutes spoken · Week 9
Opening
Picture a student senate that votes 14 to 6 to ban flyers on the main lawn. A student group says the ban breaks the student charter. It takes the dispute to the campus judicial board, a panel of 5 students chosen by lottery. The board votes 4 to 1 that the ban conflicts with the charter, so it can't be enforced.
Think about what that means. A small group nobody elected told an elected body that its rule doesn't count.
You'll meet that move in a lot of places. Maybe you're a business major watching an arbitration panel settle a contract fight. Maybe you're a nursing student whose hospital ethics board can overrule a department's policy. Maybe you're a club officer facing a judicial board yourself. The question is the same: who gets the final word on the rules, and should that body answer to the majority?
Here's where we are. Weeks 1 to 7 built your toolkit, from the line between empirical and normative claims to the parliamentary and presidential designs. Week 6 named a court setting an act aside as one of the checks and balances. Week 8 gave you the three-layer read: design, practice, and verdict. In this lecture we open up that court check. I'll name what courts do, pull apart three ideas people blur, read the text, and trace the power to one case. Then we'll compare two ways to build the power, learn to check a case, and weigh a hard debate with no verdict. Next comes Week 10, the U.S. case as a whole.
1. What courts do
Think about a workplace grievance panel. A worker says she was denied overtime the handbook promised. The panel hears both sides, reads the overtime rule, and decides what it means for her. Then it notices a manager's memo that contradicts the handbook, and it sets the memo aside.
That panel did three jobs, and courts do the same three. Here's the term. The judicial function is the three jobs courts do: resolve disputes, interpret and apply the law, and, where the power exists, check the other branches of government.
Notice the phrase "where the power exists." The first two jobs are what make a body a court at all. Two neighbors argue about a property line, and the court decides: that's resolving a dispute. A court decides whether a park's "no vehicles" rule covers electric scooters: that's interpreting and applying the law. The third job is different. Refusing to enforce a law because it breaks a higher rule needs a special power, and not every court has it.
Here's the mistake to watch for. People assume every court everywhere can strike down laws, because the court they hear about most can. But that third job exists only where a constitution, a law, or a court's own ruling sets it up.
Pause and try this. A court refuses to enforce a state statute because it conflicts with the state constitution. Which of the three jobs is that?
Run through the three jobs before you choose.
Here's the answer. It's checking another branch, because the court is setting aside the legislature's act under a higher rule.
2. Review, independence, jurisdiction
Picture a referee in a soccer league. You could ask three questions about her. Can she overrule the league's rule book? Can the team owners fire her for a call they hate? And is this game even in her division? Those are three separate questions, and courts raise all three.
Here are the terms. Judicial review is a court's power to set aside a law or an official act that conflicts with the constitution, so that the act cannot be enforced. Judicial independence is the set of conditions that let judges decide cases without fear or favor: secure tenure, insulated selection, and compliance with their rulings by the other branches. Jurisdiction is the rule that decides which court may hear which case, so that a dispute goes to a court with authority over it.
Let's sort six statements about two countries I've made up, Calvany and Brenmoor. Brenmoor's Constitutional Court may strike down a statute: that's review. Any Calvany court may refuse to apply an unconstitutional statute: also review. Brenmoor's judges can't have their pay cut while they serve: independence, through secure tenure. Calvany picks judges by a commission of judges and lawyers, not the cabinet: independence, through insulated selection. Brenmoor's government carries out rulings it dislikes: independence, through compliance. Only Calvany's labor courts hear wage disputes: jurisdiction. That's 2 review, 3 independence, and 1 jurisdiction, for 6 statements.
Here's the trap. People treat review and independence as one idea, because both make courts sound strong. But review is a power, and independence is the conditions for using any power without fear.
Pause and try this. "Judges in a country can't be removed for a ruling the president dislikes." Is that review, independence, or jurisdiction?
Ask whether it's a power, a condition, or a door.
Here's the answer. It's judicial independence, because it describes a condition that protects judges, not a power they hold.
3. Reading the text first
Imagine someone tells you your lease lets the landlord walk in any time. Before you argue, you read the lease. Courts deserve the same habit.
The U.S. Constitution was signed in 1787. Article III, Section 1 says "The judicial Power of the United States, shall be vested in one supreme Court". Section 2 extends that power to cases "arising under this Constitution". Now search both sections for the words "judicial review." They aren't there. That's an empirical claim on the design layer, and you can check it against the National Archives transcript yourself.
Next, the design argument. Alexander Hamilton wrote The Federalist No. 78 in 1788, one of the 85 essays. He says the judiciary has "neither FORCE nor WILL, but merely judgment". He calls it "beyond comparison the weakest of the three departments of power". Both are empirical-leaning claims about how courts are built. Courts have no force of their own and no will of their own to set policy, so they can only judge. Hamilton makes those claims inside an argument for protecting the courts. The essay came 1 year after the signing, and the case you'll meet next came 15 years after the essay.
Here's the trap. People believe judicial review is written into Article III, because the power feels so familiar. It isn't named there. That doesn't make the power illegitimate. It tells you the power came from somewhere else.
Pause and try this. Someone says, "Article III gives the Court the power of judicial review in so many words." How would you check that claim?
Think about which document you'd open and what you'd search for.
Here's the answer. You'd open the Article III text and search for "judicial review," and you'd find it isn't there, because the text never names the power.
4. Marbury v. Madison
Imagine a campus job offer letter that was signed but never handed to you. You go to the top office to demand it. The office says three things. You have a right to the job. The rules give you a remedy. And this office isn't allowed to give it to you. That's close to the shape of the case that created American judicial review.
Marbury v. Madison, decided in 1803, asked three questions. Did Marbury have a right to his commission, the signed document that formally appoints a person to a public office? Yes. Did the law give him a remedy? Yes. Could this Court issue the writ, the formal court order he wanted? No. A statute had given the Court original jurisdiction, the authority to hear a case first, in this kind of case. That grant conflicted with Article III, so the statute was void. That's 2 yeses and 1 no.
The holding is the rule of law a court's decision rests on, the part of an opinion that answers the legal question the case put. In the opinion's own words: "It is emphatically the province and duty of the judicial department to say what the law is." And: "a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument". The case came 16 years after the signing. The Court set up judicial review in its own opinion, not by quoting the text.
Here's the trap. People say the Court ordered the commission delivered. It held that it couldn't.
Pause and try this. Marbury had a right and a remedy. Why didn't he get his commission from this Court?
Remember the third question.
Here's the answer. The law that let him sue in this Court first conflicted with Article III and was void, so the Court held it couldn't issue the writ. Marbury got the right, not the remedy, and the Court got the power.
5. Three cases, three questions
Think about three trips to a doctor. One visit decides who's in charge of your care. One decides how far a prescription can reach. One decides whether you're treated the same as everyone else. Three visits, three kinds of question.
This course pins three Supreme Court cases. Marbury v. Madison, 1803, is about power: who decides what the Constitution means. McCulloch v. Maryland, 1819, is about scope: implied powers and federal supremacy, with the line "the power to tax involves the power to destroy". That one's a preview, and Week 10 rebuilds it. Brown v. Board of Education, 1954, is about equality: "Separate educational facilities are inherently unequal." That's 3 cases, and from the first to the last is 151 years.
Here's the trap. People blend all three into one story about a powerful Court. But each settled a different kind of question.
Pause and try this. Which of the three cases is about the scope of federal power?
Match each case to power, scope, or equality.
Here's the answer. It's McCulloch v. Maryland, because it's about implied powers and how far federal power reaches, not about who reviews laws.
6. Two ways to build the power
Picture two schools with a bad rule in the student handbook. In the first, any teacher can refuse to enforce it in their own classroom. In the second, only one appeals committee can cancel a rule, and it can act before anyone gets punished. Both schools can fix a bad rule. They route the job differently.
Democracies route judicial review the same two ways. Diffuse review is an arrangement in which any court may set aside an unconstitutional law while deciding an ordinary case, as in the United States. Concentrated review is an arrangement in which one constitutional court alone may set aside an unconstitutional law, often able to rule in the abstract; it is also called the Kelsen model. That name honors the Austrian jurist Hans Kelsen, whose design for Austria's 1920 constitution influenced its spread.
Back to my invented countries. In Calvany, any court hearing an ordinary lawsuit may refuse to apply an unconstitutional statute. That's diffuse. In Brenmoor, only the Constitutional Court may strike down a statute. Its 150-member legislature can send a new law for review before any dispute arises, if a third of the members ask, which is 50 members. That's concentrated review with abstract review, review before any dispute arises.
Here's the trap. People read concentrated review as a sign of an authoritarian court. It's a design choice many liberal democracies use, and neither architecture is more democratic by fiat.
Pause and try this. In Calvany, a trial court refuses to apply a statute during an ordinary lawsuit. Is Calvany's system diffuse or concentrated?
Ask how many courts hold the power.
Here's the answer. It's diffuse, because any court can use the power while deciding an ordinary case.
7. Checking a case three times
Imagine a friend says there's a law requiring landlords to give a week's notice, and a judge once said renters always win. You'd want to see the law and the judge's actual words first. Court cases need that caution, and chatbots make it urgent.
Chatbots invent whole court cases, citations, and judicial quotations, and they say them with confidence. A case citation is the reference that tells a reader where an opinion is printed, such as 5 U.S. 137 for volume 5 of the United States Reports at page 137. So this course treats a case name, a citation, and a quotation as three separate claims. You check each one against the Legal Information Institute, Oyez, or the Court's own site. For our three pinned cases, that's 3 claims each, 9 checks in all.
One honesty note. Sources don't always print a line the same way. The Court's own site shortens the Marbury sentence to "the province of the judicial department". This course follows the opinion.
Here's the trap. People assume a citation proves a case is real. A chatbot can format a perfect citation for a case that never existed.
Pause and try this. A chatbot gives you a real case name and a real citation. Do you still need to check its quotation?
Count the separate claims.
Here's the answer. Yes, because the quotation is its own claim, and a real case can carry a sentence its opinion never contains.
8. The counter-majoritarian difficulty
Go back to the judicial board. A few unelected students set aside a rule the elected senate passed. Was that the charter protecting students from a passing majority, or a few people overruling many?
Bickel's 1962 book, The Least Dangerous Branch, named the problem. It's in copyright, so I'll put it in my own words. The counter-majoritarian difficulty is the problem that an unelected court striking down a law passed by elected representatives overrides the majority in the constitution's name. That book came 159 years after Marbury.
Proponents of robust review make two arguments. Precommitment says a people binds its future self to rules it chose in a calmer moment, and courts hold it to that promise. Minority protection says some rights shouldn't depend on winning a vote. Critics respond at full strength. In a democracy, elected representatives should make the hard choices. And juristocracy, their term, names government in which too many value questions move from voters to judges.
Let's name some layers. "Article III never names judicial review" is empirical, on the design layer. "Brenmoor's government carries out rulings it dislikes" is empirical, on the practice layer. "Unelected judges ought not to overturn laws passed by elected representatives" is normative, on the verdict layer. The text and the cases can't settle that last one for you.
Pause and try this. Is "courts ought to protect minorities from majority votes" a design, practice, or verdict claim?
Notice whether it uses the word "ought."
Here's the answer. It's a verdict-layer claim, because it's normative, argued from values rather than checked against a text or a record.
Closing
Let's pull it together. Courts resolve disputes, interpret and apply the law, and, where the power exists, check the other branches. Review is the power, independence is the conditions, and jurisdiction is the door. Article III never names judicial review, and Hamilton called the courts the weakest branch. In Marbury v. Madison, the Court got the power. Marbury is about power, McCulloch about scope, and Brown about equality. Diffuse review spreads the power, and concentrated review gathers it. A name, a citation, and a quotation are three checks. And the counter-majoritarian debate is yours to weigh.
Next in this module come the slide deck, the Readings & Resources page, the lecture tutorial, the practice set, and the quiz. Then Week 10 turns to American government and politics, where McCulloch comes back in full.
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