The power of judicial review and how it is seen as a check on a purely majoritarian democracy.

Briefly explain the power of judicial review and how it is seen as a check on a purely majoritarian democracy. What are the positive and negative aspects of judicial review? Explain how these issues are demonstrated in Obergefell v. Hodges (2015). Provide at least one quote from the majority decision and/or Scalias dissent as an example of one side of the debate over judicial review (25 points).
Identify and briefly explain two modes of constitutional interpretation. Apply your selected modes of interpretation to Dobbs v. Jacksons Womens Health (2022) to show how different approaches can lead to different outcomes. In doing so, include one quote from the dissenting opinion to provide an example of each mode of interpretation you identify. Stated differently, your response must include two quotes from the case which exemplify two different modes of interpretation. As the dissent repeatedly refers to the majority decision, you will have several options (25 points).
We have discussed how the establishment clause can run up against the free exercise clause of the First Amendment. How is Espinoza v. Montana Department of Revenue (2020) an example of this? How does it also serve as an example of what Schwartzman and Tebbe describe as the Roberts Court systematic reworking of the establishment clause? While you are not required to include quotes in this response, you may find that textual substantiation helps to ground your argument (25 points).
No on E v. Chui provides examples of reasons that impact whether the Supreme Court will or wont – grant cert and hear a case. Provide one such issue from the case and explain why that factor should either encourage the justices to hear the case or limit their ability to grant cert. Turning to the merits of the case, do you believe the San Francisco regulation is a violation of free speech? Why or why not? Be sure to make a legal not personal argument. Make sure to not merely parrot the arguments made by the petitioners and respondents (25 points).

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Judicial Review: A Check on Majoritarian Democracy

Judicial review is the power of a court to review legislative acts and executive actions and declare them unconstitutional. It serves as a crucial check on the power of the legislative and executive branches, ensuring that laws and government actions are consistent with the constitution.

Positive Aspects of Judicial Review:

  • Protection of Minority Rights: Judicial review can protect the rights of minority groups that may not be adequately represented in the legislative process.
  • Ensuring Constitutional Adherence: It helps ensure that laws and government actions comply with the Constitution’s principles and limitations.
  • Promoting Fairness and Justice: By striking down laws that are unfair or discriminatory, judicial review can promote a more just society.

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Negative Aspects of Judicial Review:

  • Judicial Activism: Critics argue that judicial review can lead to judicial overreach, where judges impose their own policy preferences rather than interpreting the law.
  • Undermining Democratic Process: Some argue that judicial review can undermine the democratic process by allowing unelected judges to overturn the will of the people.

Obergefell v. Hodges (2015): A Case Study

The landmark Supreme Court case of Obergefell v. Hodges provides a clear example of judicial review in action. In this case, the Court ruled that the Fourteenth Amendment requires all U.S. states to legally recognize same-sex marriage. This decision was based on the Court’s interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

By striking down state laws that prohibited same-sex marriage, the Court protected the rights of same-sex couples and ensured equal treatment under the law. However, the decision also sparked controversy, with some arguing that it overstepped the Court’s role and infringed on the rights of states to define marriage.

In conclusion, judicial review is a powerful tool that can be used to protect individual rights and ensure the rule of law. However, it is important to balance the need for judicial oversight with respect for democratic processes. The case of Obergefell v. Hodges demonstrates both the potential benefits and limitations of judicial review, highlighting the ongoing debate about the proper role of the judiciary in a democratic society.

 

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