Implicit in the argument of Marbury v. Madison763 is the thought that the Court is obligated to take and decide cases meeting jurisdictional standards. Chief Justice Marshall spelled this out in Cohens v. Virginia:764 “It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” As the comment recognizes, because judicial review grows out of the fiction that courts only declare what the law is in specific cases765 and are without will or discretion,766 its exercise is surrounded by the inherent limitations of the judicial process, most basically, of course, by the necessity of a case or controversy and the strands of the doctrine comprising the concept of justiciability.767 But, although there are hints of Chief Justice Marshall’s activism in some modern cases,768 the Court has always adhered, at times more strictly than at other times, to several discretionary rules or concepts of restraint in the exercise of judicial review, the practice of which is very much contrary to the quoted dicta from Cohens. These rules, it should be noted, are in addition to the vast discretionary power which the Supreme Court has to grant or deny review of judgements in lower courts, a discretion fully authorized with certiorari jurisdiction but in effect in practice as well with regard to what remains of appeals.769
At various times, the Court has followed more strictly than other times the prudential theorems for avoidance of decisionmaking when it deemed restraint to be more desirable than activism.770
- 5 U.S. (1 Cr.) 137 (1803).
- 19 U.S. (6 Wheat.) 264, 404, (1821).
- See, e.g., Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525, 544 (1923), and Justice Roberts in United States v. Butler, 297 U.S. 1, 62 (1936).
- “Judicial power, as contradistinguished from the powers of the law, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62–63 (1936).
- The political question doctrine is another limitation arising in part out of inherent restrictions and in part from prudential considerations. For a discussion of limitations utilizing both stands, see Ashwander v. TVA, 297 U.S. 288, 346–56 (1936) (Justice Brandeis concurring).
- Powell v. McCormack, 395 U.S. 486, 548–49 (1969); Baker v. Carr, 369 U.S. 186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967).
- 28 U.S.C. §§ 1254–1257. See F. Frankfurter & J. Landis, supra at ch. 7. “The Supreme Court is not, and never has been, primarily concerned with the correction of errors in lower court decisions. In almost all cases within the Court’s appellate jurisdiction, the petitioner has already received one appellate review of his case . . . . If we took every case in which an interesting legal question is raised, or our prima facie impression is that the decision below is erroneous, we could not fulfill the Constitutional and statutory responsibilities placed upon the Court. To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.” Chief Justice Vinson, Address on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It “is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari.” Chief Justice Warren, quoted in Wiener, The Supreme Court’s New Rules, 68 HARV. L. REV. 20, 51 (1954).
- See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, supra at 111–198, with Gunther, The Subtle Vices of the “Passive Virtues”: A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964).