250 word discussion response 13

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Instructions: Do not include statements such as great work, or excellent post. Try to include information that is challenging and respectful and that will stimulate debate. Additionally, please remember that simply posting the main post and a student colleague response post does not end the forum; the discussion forum should be dialogue that is continual until the Sunday deadline. Also, be mindful of including references and citations whenever citing facts to support your position.

Response posts 250 words and 1 reference for support is also the minimal expectation; APA 6th edition citations and references.

Respond to Trent:

What was the ruling in Marbury v Madison and how did it change the role of the judiciary? The questions asked in the case of Marbury v Madison was, “do the plaintiffs have a right to receive their commission, can they sue for their commission, and does the Supreme Court have the authority to order the delivery of their commissions” (Oyez, 2020). According to the Oyez website, the Court found that “Madison’s refusal to deliver the commission was illegal but did not order Madison to hand over Marbury’s commission via a writ of mandamus. Instead, the Court held that the provision of the Judiciary Act of 1789, enabling Marbury to bring his claim to the Supreme Court, was itself unconstitutional since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established” (Oyez, 2020). Marshal later, “expanded that a writ of mandamus was the proper way to seek a remedy but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have the power to modify the Constitution through regular legislation because the Supremacy Clause places the Constitution before the laws. In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional” (Oyez, 2020). The outcome of the case allows for federal courts to declare legislative and executive acts unconstitutional. This case is an example of how simple wording or ideology can jeopardize the effectiveness of the Constitution and chip away at the sides of an Amendment weakening the effectiveness based on partisanship.

Judicial activism and Judicial review both are related to the legal system but are opposites in approach. Judicial activism “is the interpretation of the Constitution to advocate contemporary values and conditions” (Prabhat S, n.d.). Judicial restraint is, “where the courts should uphold all acts of the Congress and the state legislative unless they are violating the Constitution of the country” (Prabhat S, n.d.). The difference is that judicial restraint helps with the balance of power with the three branches and a review of consistent laws (Prabhat S, n.d.). Judicial activism allows for the ability to overrule individual acts or judgments (Prabhat S, n.d.). Also, with judicial activism, judges are required to use their powers to correct injustices when the other constitutional bodies are not acting (Prabhat S, n.d.).

One example I found for judicial activism was in an article by Elizabeth Slattery talking about the Federal drug sentencing issues. Slattery describes, “Federal law imposes mandatory minimum sentences for defendants convicted of drug crimes that typically correspond to the type and amount of drug involved in the crime. Before August 2010, a defendant convicted of possession with intent to distribute five grams of crack cocaine was subject to a mandatory five-year minimum sentence, whereas a defendant would have to possess 500 grams of powder cocaine with the intent to distribute before he could be subjected to the same mandatory minimum sentence. In August 2010, Congress passed the Fair Sentencing Act, which reduced the disparity in sentencing between offenses involving crack cocaine and those involving powder cocaine from a ratio of 100-to-1 to a ratio of 18-to-1 to restore fairness to federal cocaine sentencing. Two years later, the Supreme Court determined that the Act applied to sentences imposed after August 2010 even if the offense was committed before that time” (Slattery, 13 C.E.).

It seems like a great plan, then along came to the Equal Protection Clause guarantees that all people are equal under the law (Slattery, 13 C.E.). The courts recognized that “the 100-to-1 ratio did not violate equal protection when Congress adopted it in 1986 because there was no intent or design to discriminate. However, the Court asserted, the discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act” (Slattery, 13 C.E.).

The above case shows how judges can overrule the legislative role and put policy considerations above the requirements of the law (Slattery, 13 C.E.). So, to summarize the events instead of interpreting the law and following applicable precedents, the courts ignored prior cases both for and against to reach their own desired outcome (Slattery, 13 C.E.). This direction of handling issues will have to much partisan influence, so a better way to establish a fair and balanced system is needed. I have no idea how to fix such a problem; it seems throwing more laws and restraints only makes the problem worse.


Prabhat S. (n.d.). Difference Between Judicial Activism and Judicial Restraint | Difference Between. Retrieved March 3, 2020, from http://www.differencebetween.net/language/words-language/difference-between-judicial-activism-and-judicial-restraint/

Oyez. (2020). Marbury v. Madison. Oyez. https://www.oyez.org/cases/1789-1850/5us137

Slattery, E. (13 C.E., June 13). How to Spot Judicial Activism: Three Recent Examples. The Heritage Foundation. https://www.heritage.org/the-constitution/report/how-spot-judicial-activism-three-recent-examples

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