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Judicial Power and Review Cheat Sheet (DRAFT) by

An overview of judicial power and review in the United States.

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Definition and Role

The power to decide cases and contro­ver­sies. The judiciary, partic­ularly the Supreme Court, plays a leading role in consti­tut­ional interp­ret­ation because of the uniquely American instit­ution of judicial review.

Original Jurisd­iction

The authority of a court to hear a case in the first instance to function as a trial court. The Supreme Court's original jurisd­iction is outlined in Article III, Section 2, paragraph 2 of the Consti­tution.

Justic­iab­ility Limits

Article III authorizes federal courts to hear several types of cases and contro­ver­sies: cases arising under the Consti­tution, federal laws and treaties, and cases involving citizens in different states.

Judicial Review of State Actions

Congress provided the mechanism for implem­enting the principle of federal consti­tut­ional supremacy over confli­cting state law. It provided for Supreme Court review final judgement or decree by the highest court in the state in three categories of cases: (1) where the validity of a federal law or treaty is "­drawn in questi­on", and the decision was against its validity; (2) where a state statute was challenged as "­rep­ugnant to the Consti­tution, treaties or laws of the United States­," and the decision was in favor of its validity; (3) where the constr­uction of the federal Consti­tution, treaty, or statute was drawn in question and the decision was against the title, right, privilege, or exemption claimed.

Limits on Appellate Jurisd­iction

Appellate jurisd­iction is the authority of a court to hear a case that has been decided by a lower court, It is something that can never be changed by the court but is always defined by some authority external to it, either by a statute or by the Consti­tution. Article III, section 2 describes the judicial power of the United States as extending to disputes involving foreign diplomats, admiralty and maritime jurisd­iction, and various contro­versies between states, between state and citizens of another, between citizens of different states, and where a foreign state is a party.

Marbury v. Madison (1803)

Establ­ishes the authority for judicial review of both federal and executive and legisl­ative acts. The Judiciary Act of 1789 was deemed uncons­tit­utional by the SC because Article III holds that the SC shall only have original jurisd­iction for a limited number of cases, and shall have appellate jurisd­iction for all other cases.

Policy: The Supreme Court has the power, implied from Article III, to review acts of Congress and the Executive and if they are found repugnant to the Consti­tution, to declare them void.

Eakin v. Raub (1825)

Instituted that the Consti­tution would still be the supreme law of the land and the foundation of our system, but its primary interp­ret­ation would shift from the Court to the explicitly political branches of govern­ment.

Presum­ption of Consti­tut­ion­ality

The Court presumes that a statute is consti­tut­ional unless it is proved otherwise. This presum­ption is confined almost exclus­ively to economic and social legisl­ation.

Presum­ption of Consti­tut­ion­ality

The Court presumes that a statute is consti­tut­ional unless it is proved otherwise. This presum­ption is confined almost exclus­ively to economic and social legisl­ation.


Three Consti­tut­ional Requir­ements: (1) Injury: the plaintiff must allege that he or she has suffered or will immedi­ately suffer an injury in fact, (2) Causation: plaintiff must allege that the injury is fairly traceable to defend­ant's conduct, (3) Repres­sib­ility: the plaintiff must allege that a favorable federal court decision is likely to redress the injury. Plaintiff may only assert his own rights and cannot raise the claims of third parties not before the court. Plaintiffs may not sue as a taxpayer who shares a grievance in common with other caretakers (Froth­ingham v. Mellon). Taxpayer standing has only been allowed to challenge government expend­itures as violating the Taxing and Spending Clause (Flast v. Cohen)


There is no longer an actual contro­versy between adverse litigants. Exception: if there is an injury likely to reoccur in the future and it is possible that it could happen to the plaintiff again (Roe v. Wade)

Case and Contro­versy

Federal cases may not issues advisory opinions (Muskrat v. United States). Some state courts may. There must be an actual dispute between litigants.

Martin v. Hunter's Lessee (1816)

The Supreme Court asserted its authority to hear civil cases tried in state courts that presented federal consti­tut­ional questions. The U.S. Supreme Court is final in decisions of state contro­versies if the claim is based on a provision of the U.S. Consti­tution or a statute passed by Congress. If only a state question is presented, the highest court in the state has the final decision, and will be reviewed by the SC.

Policy: The Supreme Court has jurisd­iction over issues of federal law in state courts.


A federal court will not hear a case unless there is a present or signif­icant threat of imminent injury. Seeks to separate matters that are premature for review because the injury is specul­ative and may never occur form those cases that are approp­riate for federal court action. Rationale is to protect courts from entangling themselves in abstract disagr­eements over policy.

Political Question

Defini­tion: A doctrine that excuses federal courts form consid­ering matters that, even though they may constitute a case and contro­versy, are not the sorts of things that are proper for a court to decide and could be better decided by one or both of the other branches of government (Baker v. Carr 1962). Not all questions involving politics constitute a political question.

Avoiding the Consti­tut­ional Issues

The Court will not pass on a consti­tut­ional question, if there is some other grounds on which the case may be disposed of. Consti­tut­ional questions would be avoided if the case could be decided on other grounds. The Court will first seek to construe the statute in such a way that the consti­tut­ional question is avoided.

Ex Parte McCardle (1869)

Congress has the power to enlarge or diminish the Court's appellate jurisd­iction. While the SC's appellate jurisd­iction is derived from the Consti­tution, the Consti­tution also gives Congress the expressed power to make exception to that appellate jurisd­iction.