How did judicial review in the United States develop out of prerogative writs? In this video, at 58:15 Justice Scalia says that the judicial review concept in the United States developed out of the prerogative writs: mandamus and injunction. What does he mean by that? How did judicial review develop out of these two writs, exactly? Where (book or article) can I find more information about that?
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.
In brief: In common law systems, are there specific laws? Yes. Are they written down? Yes, here are the laws of Australia and New Zealand. Or are there only previous court rulings? No. Elaboration: Broadly (and rather vaguely) speaking there are 3 sources of law in a common law jurisdiction: Statute law which consists of the Acts passed by the legislature Administrative law which consists of the rules and regulations made by the administrative arm of government under the powers granted them by the constitution or delegated by the legislature Case law which consists of the decisions made by the courts; this can be decisions based on Long-standing precedents whose origins are lost in the mists of time Interpretations of statute and administrative law It is important to remember that the courts only get involved to resolve conflicts (civil or criminal) - they do not unilaterally make decisions on the law. Judges (if they are wise) never give opinions on the law - that is the role of solicitors and barristers who are the paid advocates of the parties. The role of a judge is to decide how the law fits the circumstances of the particular case before them. To do this they interpret the statutes, administrative rules and decisions made by other judges on similar cases. The decision of a superior court is binding on a subordinate court, persuasive on an equivalent court or a court in a parallel jurisdiction and subject to review by a superior court. The overwhelming majority of cases do not make new case law - most of the arguments in court are about why (or why not) the established law applies to the current facts; they are not about what the law is. Occasionally a decision will be made that modifies the previous interpretation or even more rarely represents a paradigm shift - those are the cases that matter!
It is generally held that Textualism is a kind of Originalism, which is a set of theories: these theories have something in common, which sets them apart from Minimalism or Living Constitiutionalism. The problem is that it is very difficult to establish a defining canon for Originalism, whereas Textualism is a newer development prominently associated with Scalia. There are three related theories: Original Intent, Textualism, and Original Public Understanding, subsumed under the umbrella of Originalism. The textual difficulty is finding a (somewhat) contemporary advocate of Original Intent or Public Understanding who maintains that theory in the face of Textualism, so that we can see the essential principles that distinguish the theories. Smith ("Why originalism won’t die…" says that Originalism is the view, embraced by Antonin Scalia, Robert Bork, Clarence Thomas and many academic legal theorists, that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted its provisions As characterized by R.G. Natelson, The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth. The public meaning theory seems to have not gotten much traction, though it might be subsumed under an attempt within Original Intent theory to find evidence for that original intent. Scalia (the arch-Textualist) characterizes his "opponent" originalism (not textualists) saying "Originalists believe that the Constitution should be interpreted to mean exactly what it meant when it was adopted by the American people." (quote from Scalia AUSTIN AM.-STATESMAN, May 6, 2005, copied from Smith) Bork (The tempting of America) says that under the Original Intent view, "a judge is to apply the Constitution according to the principles intended by those who ratified the document" (emphasis added) A variant sub-theory is strict constructionism, and in Common-Law Courts in a Civil-Law System, Scalia cites the case of Smith v. United States, 508 U.S. 223 to illustrate the difference between strict construction and textualism. In this case, case where defendant was said to have used a firearm during and in relation to a drug trafficking crime when he offered it in exchange for cocaine. Scalia, opining in the minority, rejects the majority’s "strict" interpretation of the word "use", says The phrase “uses a gun” fairly [emphasis added] connoted use of a gun for what guns are normally used for, that is, as a weapon. When you ask someone “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway. In Scalia’s theory, which is a formalist but not a mechanical theory, words are to be interpreted "fairly", rather than "strictly": A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means. Focusing on the difference between Scalia’s theory as a representative of textualism (sometimes called "original meaning" theory), and his characterization of other broadly-construed originalist theories (strict constructionism, as identified in Common-law courts…, Scalia in particular denies the relevance or even the existence of “intent” behind legislation. The first and most obvious reason this is true is that, with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false followed by some interesting extracts from Senate floor debate that indicates how a certain bill was passed without anyone apparently reading the relevant committee report. In short, the difference between original intent and original meaning has to do with whether the words used in a statute are dispositive, or are they a guide to discerning the intention of the legislature where that intention is to be enforced.
The practice of having all SCOTUS cases heard by the whole court (en banc) rather than by individual justices or panels is nowhere specified in the US Constitution. Nor is it mentioned by The Federalist which is often a good source on the intentions of the Framers. It seems to have been adopted by the first session of the court with little discussion -- at least none that has come down to us. I strongly suspect that English models were in the minds of those early court members, but I do not know exactly which models. The practice of the various state Supreme courts may also have been influential. This practice seems to have been confirmed and definitely settled by Chief Justice John Marshall, who did so much to define the Court's procedure. He also strongly encouraged the court to issue a single option in each case, discouraging both concurring and dissenting opinions. He felt that the Court should always speak with a single voice. During the first fifteen years of his tenure, he himself wrote close tom 90% of the court opinions, according to an academic study of the Marshal Court I read about a year ago. It is worth recalling that in the early years there were not many SC cases, and there was no need to split up the work of the court. It is also worth remembering that at that tine there were no separate appeals courts. Rather, each Justice &quot;rode circuit&quot; holding court in several different cities, in each sitting with one or two District Court judges as a panel court. Thus when a case reached the SC on appeal, it had already been passed on by a single Justice. The justices, through the end of the Marshall Court in the 1830s spent more than half of each year on circuit. Addition: One should also remember thst from the start through the 1830s the Justices lived in boarding houses during the Court term, and in most terms most or all of the Justices lived in the same house, where the work of the Court was discussed over dinner and in the evenings. None of which Really answers &quot;why do we do it this way?&quot; I do not know of any document that first laid out this practice, much less gave reasons for it.
I am guessing that the question is about the United States, since the &quot;objection!&quot; procedure is not the same in other places. The Supreme Court has held that even though you have the right to represent yourself, this is conditional on your maintenance of proper conduct. If you disrupt proceedings and disregard judicial directions, then the judge can find you in contempt of court, just as with anybody else who was doing that. In Illinois v Allen, 397 U.S. 337 (1970), a self-represented litigant &quot;started to argue with the judge in a most abusive and disrespectful manner&quot;, threatened the judge's life, and made clear that he intended to filibuster the process, saying &quot;There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this.&quot; The judge ordered him removed from the courtroom on several instances of this behavior, and also appointed professional counsel. Following a series of appeals against all this, the Supreme Court ultimately said: Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course. be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
In a trial by judge (bench trial) that could certainly happen. Most substantial parts of the judicial process can be sealed, under numerous laws and theories. The U.S. FISA "Court" is notorious for operating virtually entirely in secret. Various laws allow for secret subpoenas or warrants, with the subjects on which they are served held criminally liable for violating the court's order for secrecy. In a trial by jury it would probably be impossible for an exonerating fact to be presented to the judge only, since the proper role of the jury is to decide all questions of fact in a case. Furthermore, a court can compel a witness to testify, with no requirement to mitigate the damages of such testimony. However, if the accused knew that an exculpatory fact could be provided by a witness, and that the witness might decline to give (honest) testimony to a jury, he would presumably waive his right to a jury trial, at which point the testimony could (in theory) be given only to the judge.
The Court of Appeals made Judge Sullivan the respondent. Flynn petitioned the Court of Appeals for a writ of mandamus to order the inferior court to dismiss the criminal proceedings against Flynn. Normally the adversary in the 'parent' proceedings would oppose such a petition but in this case the adversary, the Department of Justice, supported Flynn's petition. The Court of Appeals made Judge Sullivan the respondent and did not appoint an amicus curiae. That allowed Judge Sullivan to seek a review en banc of the Court of Appeals' 24 July 2020 decision. The Court of Appeals has since vacated the 24 July 2020 decision and will re-hear the petition for the writ of mandamus en banc. It has asked parties to consider whether there are &quot;no other adequate means [than mandamus] to attain the relief&quot; desired. Federal Rules of Appellate Procedure, Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs: The court of appeals ordinarily will be adequately informed not only by the opinions or statements made by the trial court judge contemporaneously with the entry of the challenged order but also by the arguments made on behalf of the party opposing the relief. The latter does not create an attorney-client relationship between the party's attorney and the judge whose action is challenged, nor does it give rise to any right to compensation from the judge. If the court of appeals desires to hear from the trial court judge, however, the court may invite or order the judge to respond. In some instances, especially those involving court administration or the failure of a judge to act, it may be that no one other than the judge can provide a thorough explanation of the matters at issue. Because it is ordinarily undesirable to place the trial court judge, even temporarily, in an adversarial posture with a litigant, the rule permits a court of appeals to invite an amicus curiae to provide a response to the petition. In those instances in which the respondent does not oppose issuance of the writ or does not have sufficient perspective on the issue to provide an adequate response, participation of an amicus may avoid the need for the trial judge to participate. Interesting point made at 41:00 in episode 175 of The National Security Law Podcast by Bobby Chesney and Steve Vladeck: the Court of Appeals didn't address the question of 'standing' or whether Sullivan was a proper party to make a petition. The Court announced that &quot;Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate&quot; they ordered the re-hearing of Flynn's petition en banc.
In this case the Plaintiff, James Maloney, has previously been charged with a crime for possession of nunchucks. He is apparently suing to enjoin further enforcement of the law under which he was previously charged. US Federal courts will only take up a "case or controversy", which means an issue where actual, not theoretical rights are at stake, and in order to vindicate a constitutional right, it must either have previously been violated, or there must be a plausible and immediate threat to it. Claiming that a law is unconstitutional as part of a defense to a charge of violating that law is a common and probably the best known method of challenging a law (or a government action) for unconstitutionality. But there are other ways. One way is to apply for an injunction against enforcement of the law. That is the procedure that was followed in, for example, the recent case where there was a ruling against the ADA in a district court. In order to use that procedure, the plaintiff must present evidence that there is a credible threat that the law will be invoked against him (or her) if the action which the plaintiff claims is protected by a constitutional right is taken. In short, one need not put oneself in a position where one goes to prison or is found guilty of a crime if one loses the case to challenge the constitutionality of a law or of a government policy or action. But one must establish that it is a real "case or controversy", with real parties in opposition to each other, and real rights at stake, not a mere law student's exercise, nor a collusive case, with both "sides" having the same actual goal. In the case reported, the previous criminal charge helps to establish that this is a real issue.