If Marbury v Madison was overturned, would this eliminate Judicial Review in the United States? Background Marbury V. Madison established the practice of Judicial review in the United States, though the principle existed before the case. This gave the Supreme Court power to invalidate laws, or portions of laws, that it found unconstitutional. By the same token, it limited the Supreme Court to a court of appeals with respect to writs of mandamus and not as a court with original jurisdiction on the matter. Marbury v. Madison, like any other Supreme Court case, is subject to being overturned either by the Supreme Court, or by amendment to the constitution. If this were to happen, that means the Judicial Act of 1789 regains full force of the law, and presumably the power to issue writs of Mandamus with original jurisdiction. But there is another part of the case that led me to ask this question... Question If Marbury v Madison was overturned, thereby reinstating in full the Judicial Act of 1789, does this also mean that the Surpeme Court loses the power of Judicial review? And, if so, does this loss of power apply to all cases where it has been applied?
Marbury V. Madison did not establish judicial review. It was simply the first case where that power was used. It was clearly spelled out in The Federalist #78 that this power would exist in the new constitution, and those who voted to ratify it understood, or should have understood, that it would exist. All that Marbury V. Madison decided was that the Supreme court did not have original jurisdiction to issue Writs of Mandamus That could be overturned, or the constitution could be amended to grant such jurisdiction to SCOTUS. That would not have any major effects on the US judicial system as far as I can tell. I suppose that the constitution could be amended so as to deny the power of judicial review to the courts. But I think the resulting system would be potentially unstable, and this would require a far more fundamental change than simply &quot;overruling Marbury V. Madison&quot; As #78 of The Federalist said: By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (emphasis added) The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . . [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
It is binding precedent for lower federal courts in the Ninth Circuit. They are required to follow it. It is persuasive precedent for the other circuits and for state courts. They may be persuaded by the reasoning and will consider the fact that the Ninth Circuit held as it did to be one factor in their decision-making, but they can make a different decision if they want to. Some courts are also more persuasive than others, although this is usually not explicitly acknowledged in written opinions. For example, state courts in the Ninth Circuit are likely to give more weight to a Ninth Circuit opinion than they are to give weight to a decision from another circuit. Cases from the Second Circuit are more likely to be persuasive than cases from other circuits, because of its reputation. Cases from the Southern District of New York are more likely to be persuasive than cases from most other non-local District Courts. There is also a personal reputation function that comes into play when looking at persuasive decisions. Some judges have a better reputation or a better reputation with a particular other judge, and their decisions may be considered more carefully. This is not explicit, but it means a good lawyer will mention the judge's name when a case in support of his position was decided by a well-regarded judge. Finally, the Ninth Circuit's holding would be persuasive precedent for the Supreme Court. You could write law review articles about this, but to dip one toe in: they may be persuaded by the reasoning and it matters to their function of providing unifying law, so especially during the process of applying for a writ of certiorari, they will care what different circuits have held on an issue and which circuits are going which way. But they are not bound by the circuit courts, and will overturn all of the circuits if they think that's the right decision. They did that a while ago with a statute about what it meant to use a firearm while committing a crime, for example.
The U.S. Supreme Court, given the discretionary nature of its customary appellate jurisdiction, has adopted the practice of not considering complaints filed with it in its original jurisdiction until leave to do so is granted. As the highest legal authority in the land, there is no other court in which this procedure can be litigated. A complaint filed without leave would either be rejected, or would be deemed a request for leave to file it, and evaluated on that basis. Without the grant of leave to file the complaint, it will not be considered by the U.S. Supreme Court on the merits.
The Declaration of Independence is often cited (along with the Federalist Papers) when the court is attempting to justify a particular interpretation of The Constitution by looking at the intent of the drafters. For example, in Arizona State Legislature v. Arizona Independent Redistricting Commission 576 U.S. ____ (2015), in establishing that the people have ultimate sovereignty quoted the Declaration of Independence: Governments are instituted among Men, deriving their just powers from the consent of the governed... Following that (after also quoting some text from the Constitution), Justice Ginsberg concludes: In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in... As a second example, Justice Scalia, in his dissent in Obergefell v. Hodges 576 U.S. ___ (2015), refers to the Declaration of Independence: This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
The place to begin thinking about this question is to understand the foundational question of what a &quot;writ&quot; is. A &quot;writ&quot; is a court order directed at another government official, often, sometimes, a government official who isn't even a party to the case, although sometimes the government official is a party to the case. A writ of mandamus, is a writ directing a government official to carry out a non-discretionary duty. An injunction is a court order (not necessarily a writ, although some writs are injunctions, indeed writs are usually a subset of injunctions directed at government officials) which directs a person who is a party to lawsuit, or is contractually or organizationally connected to a party to a lawsuit, to take some sort of action or to refrain from taking some sort of action. Most injunctions are not writs. The usual remedy if a government official does not obey a writ of mandamus or an injunction is to hold that government official in contempt of court, for example, by personally fining or incarcerating that government official. How did judicial review develop out of this two writs, exactly? As a footnote, there are a lot more than two kinds of writs. There are actually maybe half a dozen in regular use, including writs of prohibition (ordering public officials not to do something), writs of certiorari (reviewing discretionary decisions of lower courts and public officials acting in a quasi-judicial role on legal issues), writ of quo warranto (resolving disputes over who holds a public office), writs of attachment (ordering public officials to seize property, especially tangible personal property, to satisfy a money judgment), writs of restitution (ordering a public official to restore possession of real property to someone), writs of execution (ordering public officials to carry out court orders, usually money judgments rather than death penalty orders), writs of assistance (authorizing a public official to trespass on someone's real property in furtherance of some other purpose), and writs of garnishment (authorizing a public official to seize property owned by a money judgment debtor from someone other than the debtor who is in the possession of the debtor's property like a bank or an employer, if they don't comply in turning over that property), and more. The modern trend is to replace historic common law writs (which are statutorily authorized in the federal system by the All Writs Act which was one of the first acts passed by the first Congress in 1789), with court rules with plain English names that confer equivalent authority. To appreciate what a big deal this is, you need to compare the powers of common law legal system judges to the powers of civil law legal system judges such as the ordinary court judges of France, Spain and Germany. Civil law judges don't have the contempt of court power. They have some resources to enforce their orders, but no tool nearly so powerful or sweeping. The ordinary courts of civil law countries, unlike those of common law countries, historically have not had the power to rule on questions of &quot;public law&quot; (i.e. disputes involving governmental agencies and officials apart from issuing sentences in criminal cases). Instead, civil law judges in ordinary civil law courts only have jurisdiction over disputes between private parties and over criminal prosecutions. Separate public law tribunals, sometimes called administrative courts and sometimes called something different, handle public law cases (in France, for example, these cases are handled by the &quot;Council of State&quot; which is run by elite civil servants whose upper levels are populated almost entirely by graduates of France's top university). In the 20th century, when Europeans (and people in other civil law countries) started to imitate the vibrant U.S. constitutional individual rights jurisprudence mostly arising under the federal Bill of Rights, the bureaucratic inertia of centuries was too great to copy the common law model, so instead, civil law countries instead tended to create stand alone &quot;constitutional courts&quot; outside the ordinary court system, with the authority to enforce their newly enacted human rights protections in their national constitutions instead, handling this special and important subset of public law in the same manner that non-constitutional public law questions had always been handled by a separate set of courts in those countries. This divide emerged because in post-Norman invasion England, judges are successors to feudal aristocrats who personally held courts and resolved disputes between their subjects and had life and death power over then and a direct command authority over all public officials. Professional judges in the common law system were originally courtiers who volunteered to substitute for the aristocrats themselves in doing this job (which required lots of skill and was more boring than training to sword fight and ride horses and commanding soldiers), who as agents of local lords had all of the authority and power of the lords themselves for whom they were trusted inner circle advisors. The core contempt power is actually the power to summarily fine or incarcerate someone who disrespects the judge or aristocrats in the presence in open court, without a trial, which was broadened to include include defiance of and disrespect for the court outside of its presence by disobeying its orders. In contrast, if someone is disrespectful or disorderly in a civil law court, the judge calls the cops just the way anyone who wasn't a judge would if someone got out of control in their office or board meeting. Civil law judges, following the classical Roman tradition, were appointed specialized civil servants, rather than delegates of aristocrats, from the state in continental Europe and in countries that followed the continental European model. (In Rome, most cases were decide by judges who had a role closer to modern private arbitrators than today's judges.) As courts in England became more bureaucratized and divorced from the aristocratic model, the ordinary English courts drifted in the direction of civil law courts, but then, the English Chancellor (an official most similar in role to the Secretary of Treasury in the U.S.) who was a top cabinet level official of the Prime Minister and the King, developed a parallel set of courts that rather than being public law courts, handled what was called &quot;equity&quot;, basically providing legal remedies in cases where the bureaucratic civil law style courts of law in 18th and 19th century century England couldn't do anything since they had only narrow jurisdiction. The courts of chancery, a.k.a. judges of courts of equity in England, led by an aristocratic high cabinet official, took over the tradition of contempt of court authority previously wielded by aristocrats holding court over their subjects. And, when England decided to be efficient by merging the courts of law and the courts of equity into one unified system in the 19th century, the judges of the new combined system were granted to combined powers of judges in courts of law and judges in courts of equity, restoring to them the power to issue a wide variety of writs and to hold public officials in contempt of court if they disobeyed, something natural for the top government official holding the purse strings over all other government officials in England. Now, originally, in England, writs weren't used for the purpose of judicial review of legislation. Under the doctrines of royal absolutism and parliamentary sovereignty, courts in England until very recently, didn't have any authority to invalidate a law. But, rather than creating a separate set of public law courts, the English gave the ordinary judges of their ordinary courts the authority to force civil servants to obey the laws that Parliament enacted with royal approval. Once judges are used to bossing around civil servants for not doing their jobs in accordance with the law (which English judges had already been doing for centuries), it becomes second nature, in a complicated governmental system like that of the United States with federalism and the separation of powers, for judges to order state officials not to disregard federal laws that conflict with state laws (under the supremacy clause), which they did on a regular basis starting in the early 1800s, and to order federal officials to disregard federal laws that conflicted with the U.S. Constitution, which they did much less frequently until after World War II. The other piece of the story that is important to understand, is that there were no direct appeals of federal criminal convictions until the late 1800s when the intermediate federal courts of appeal were created, and this was also true in many states. Prior to that, the only form of judicial review of a criminal conviction was a writ of habeas corpus, which is why this takes such a prominent role as a protected writ in the federal constitution even before the Bill of Rights was adopted. The general rule was that a writ of habeas corpus should be denied any time that someone was incarcerated pursuant to a criminal conviction of a court with jurisdiction, or was in the process of facing trial on a criminal charge by a court with jurisdiction. But in the absence of any other form of judicial review of wrongful criminal convictions except the executive branch pardon power, courts read their mandate to find that criminal convictions were jurisdictionally deficient expansively to cover a multitude of procedural irregularities in a criminal conviction. So, even the review of law enforcement discretion now handled (a form of bossing around government employees) mostly through direct appeals of criminal convictions and pre-trial appeals of key rulings by trial courts in criminal cases, was historically done through writ practice. I personally learned this piecemeal, but one of the leading histories of law in the United States is A History of American Law by Lawrence M. Friedman.
What remedies are therein the United States? I would imagine that the witness could be prosecuted for perjury. My guess is that the plaintiff could prosecute the witness for the lost damages. Are there any other remedies like reopening the original trial or declaring a mistrial so that the plaintiff could sue the (deep-pocketed) defendant, or would this be double jeopardy? Perjury prosecutions are like unicorns. They are rumored to exist but are almost never seen. A prosecutor would be exceedingly unlikely to bring charges in such a case, but it might not hurt to ask. Even if the criminal prosecution prevailed, however, the defeated plaintiff would be no better off, or might get out of pocket court costs as restitution at most. You could request that the witness be sanctioned for contempt. But, this leaves the loser in the original case no better off unless the judge made the highly unusual decision to award compensatory damages as a contempt sanction. Similarly, if you have reason to believe that the attorney knew that the testimony offered was false, that would be grounds to grieve the lawyer which could result in the lawyer's suspension or disbarment, but that is very difficult to prove and again would not advance the unjustly defeated plaintiff's cause. Assuming that the time to move for a retrial (usually two weeks) expired when the new evidence was discovered, you could move to set aside the verdict (Federal Rule of Civil Procedure 60 or the equivalent state rule). The deadline for such motions based upon fraud by an adverse party is usually six months. Sometimes an independent action to set aside the verdict for fraud on the court could also be brought (sometimes within two or three years), which is an uphill battle, but probably the best option if all other deadlines have expired. The witness probably has absolute immunity from civil liability outside that court case for the testimony offered, so a civil action suing the witness for lost damages would be dismissed. The doctrine of double jeopardy does not apply, but a similar doctrine called "res judicata" (a.k.a. "claim preclusion") prohibits retrying a case that was tried on the merits between the same parties, if it has become a final order. So, filing a new case is ruled out assuming that no appeals were filed within the deadline for doing so. And, even if the deadline for filing an appeal has not lapsed, it probably wouldn't prevail because the key new evidence wouldn't be in the record. It would be better to file to set aside the judgment in a motion and to appeal if that motion was denied.
The U.S. Supreme Court has no jurisdiction to set everyday procedural rules in state court, although it can mandate processes that flow from the constitution. In criminal cases, this allows it to regulate courtroom conduct that is prejudicial to defendants. The U.S. Supreme Court, for example, has prohibited keeping criminal defendants facing trial in a cage in the courtroom as is common in many jurisdictions elsewhere in the world. The Rittenhouse case took place in state court, over which the U.S. Supreme Court has limited authority in such matters. On the other hand, the U.S. Supreme Court has broad authority to establish court rules in the federal courts and could adopt rules in those courts if it deemed fit, and if its proposed rules were not legislatively vetoed by Congress.
Could the acceptance of the pardon then have any bearing on the case in the other jurisdiction? Possibly, but not much. There is very, very little case law on this point since: (1) pardons are rare (especially federal ones), (2) people who are pardoned generally do so because everyone in the criminal justice process in the prior case agrees that the person is reformed and they are usually correct, (3) the statute of limitations has often run on a new prosecution, and (4) many cases where these issues arise, are probably not appealed (either because the neither parties attempts to, or because a defendant is acquitted and there is no appeal), but an appeal is necessary to give rise to binding precedents. Can the admission of guilt be used in the new case? The criminal collateral estoppel effects of a pardon flow from the adjudication on the merits which is vacated. Also, comity between sovereigns and public policy mitigate such a rule. The pardon power would not be very interesting if it routinely resulted in a new prosecution that was conducted on a summary basis via a preclusion doctrine such as collateral estoppel. In many cases, the statute of limitations will have run on the original crime or there will be no parallel state law crime, but this is not always the case. Also, I would disagree with the statement that a pardon always implies an admission of guilt to the crime for which a pardon was granted, even though that statement is often used rhetorically. For example, one important use of the pardon power is to commute the sentence of someone who asserts that they are factually innocent but have been convicted of a crime, potentially in a manner that is not subject to further judicial review, and treating that as an admission of guilt doesn't make sense. As the Wikipedia entry on Burdick notes in the pertinent part: Legal scholars have questioned whether that portion of Burdick [ed. about admission of guilt] is meaningful or merely dicta. President Ford made reference to the Burdick decision in his post-pardon written statement furnished to the Judiciary Committee of the United States House of Representatives on October 17, 1974. However, said reference related only to the portion of Burdick that supported the proposition that the Constitution does not limit the pardon power to cases of convicted offenders or even indicted offenders. I would read this as dicta, as this portion of the holding was not necessary for the court to reach its conclusion and the fact pattern in Burdick was a typical fact pattern where guilt was not disputed. It didn't raise the concerns present when a pardon is requested based upon a claim of innocence, and granted following a conviction. Instead, the holding of Burdick was that there was no pardon because the pardon was rejected (in a manner very similar to a common law disclaimer of a gift), so its holding didn't need to reach the effect of a pardon that is accepted to resolve the case. Can it be used as &quot;reasonable cause&quot; for various actions? This is a bit too vague to know what you are getting at. I suppose that a pardon could constitute reasonable cause for some things favorable to a defendant who is pardoned (e.g., potentially in a motion seeking to reopen a termination of parental rights entered on the basis of the conviction). I suppose it could also be used in a manner potentially unfavorable to a defendant (e.g. showing a pattern of past conduct that demonstrates modus operandi in connection with a prosecution for a new crime). I don't think it could be used as grounds to deny an occupational or business license for bad character. Still, without more clear context it is harder to know what you are really looking for in this regard and I'm not confident that my examples address that. Does the defendant lose their right to refuse to testify in the new case? I haven't reviewed the case law, but my intuition is that if it has never been waived before, it wouldn't be waived by the pardon, but that if it was waived in a previous proceeding resulting in a conviction that was then pardoned, that the prior sworn testimony might be admissible evidence in the new action since it is not hearsay and isn't itself evidence of a prior conviction. The context of the prior testimony might have to be concealed from the jury. As noted by @Putvi, the defendant could not claim risk of conviction for the federal crime as a ground for invoking the 5th Amendment if a pardon is accepted (something that is implied in Burdick), but if there was an overlapping state law crime, risk of conviction for the state crime could constitute a grounds upon which to invoke the 5th Amendment. Burdick does stand for the proposition that a pardon not solicited by the defendant, that is rejected, cannot provide a basis for removing the 5th Amendment protection with respect to a risk of conviction for federal crime. I would also be inclined to think that matters disclosed in an application for a pardon might be admissible evidence as a non-hearsay statement of a party-opponent, if the statement was stripped of the pardon application context (which would be unduly prejudicial since it would imply a prior conviction which otherwise wouldn't be admissible).