1. Describe these two judicial philosophies. Judicial Activism is when judges/courts do not strictly stick to the interpretation of a law, but create a new one. Easily explained, when an issue is being ruled upon, courts establish a new law to rule broadly on the issue rather than limit their verdict. A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts.
In this essay, first the arguments of the Federalist Paper and the Supreme ruling of Marbury v. Madison will be discussed. Then these two sources will be compared and the similarity and difference will be clarified. Finally, the necessity of judicial review in the checks and balance system and its importance will be proved. One of the most important features of the jurisdiction, Hamilton stated, was the complete independence of the branch from the other two branches. The tenure in which the judges hold during good behavior is their biggest protection and creates the separation from other branches.
Other source of America law is administrative law it consist of rules, regulations, orders and decisions of administrative agency or governmental organization. This law performs a specific functions and rules issued by administrative agencies, since they make their own regulations it is not usually found in the statutes, with stringent procedures individuals must follow to obtain assistance from the agency and this is how administrative law is impacted. In addition, the sources that amount to mandatory authority is primary sources it refers to cases, statutes, or regulations that the court must follow because it is binding on the court. Even though, lower courts are required to follow decisions from higher courts in the same jurisdiction. Example: You are in Federal District Court for the Southern District of Florida.
Parliament can still undermine any of the laws which implement these changes, therefore these developments do not fully undermine parliamentary sovereignty. Therefore, parliament is supreme; unless it involves the European law then the European Union will take the power. Secondly, the effect that the European Union has had on parliamentary Sovereignty. The European Union has meant that parliament is not the ultimate power for the UK, if a British law brings up conflict with the European Law, for example employment law, then it would be the European Law that would stand. But Britain does have the choice to stay in the European Union or not, as parliament are allowed to leave at any given time.
One was: Did Marbury have the right to receive the commission? Marbury deserved to receive the commission because the commission takes effect once the Executive’s power of appointment has been exercised. Another issue was if the Supreme Court had original jurisdiction to issue writs of mandamus. The answer was no, the Supreme Court did not have original jurisdiction to issue the writs of mandamus. For the court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or for them to enable the ability to exercise appellate jurisdiction.
For example, the ever-changing law on how discrimination went from sanctioning segregation to dissolving segregation illustrates how adaptable common law is. This law also derives its basis from these court proceedings called precedents to guide cases based on past rulings. The one disadvantage of common law is how cases will surmise. As Rogers (2012) attests, “even the best judicial minds often disagree, based at least in part on their judicial philosophy and political ideology” (Section 1.1). Depending on each of the judge’s beliefs, cases can go in any direction from their analysis.
The Sixth amendment protects the accused upon the case against him. The Right to Counsel is given to everyone and this constitutional mandate adheres to the constitution. An accused may choose his own if his means permit him to do so. If not, however, and it is upon the court to appoint who shall represent him, the accused has no say of who will be appointed for him since what is contemplated by law is the essence of a competent lawyer’s presence. The right of self-representation may, of course, be opted upon refusal to receive the services of the one appointed by the court, but it shall still be in conformity with the set guidelines for the same right (Tomkovicz,
This is true, but to interpret the laws and judge their constitution are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of
Checks and balances are put into place so that no one area of the government can have full control or become too powerful. In the three branches checks and balances vary and are essential. The Legislative branch given the power to make laws and is there to check the Executive and Judicial branch. The Executive branch is given the power to carry out the laws and is there to check the Legislative and Judicial branch. The Judicial branch is given power to interpret the laws and is there to check the Legislative and Executive branch.
The Supreme Court takes part in judicial review which is examination by a country's courts of the actions of the legislative, executive, and administrative branches of government to ensure that those actions conform to the provisions of the constitution. “Judicial review enables the courts to protect constitutional principles against attacks by elected officials” (Dye 326). Since they are not elected by the people many believe that it would be better if we had restraints on the judicial power. Justices seek both to advance favored policies and to win approval from audiences they care about. They are likely to care a great deal about their reputations among other elites, including academics, journalists, other judges, fellow lawyers, members of other interest groups, and their friends and neighbors.