According to Epstein, and Walker’s text, Constitutional Law for a Changing America: Institutional Powers and Constraints, and general judicial mythology, Chief Justice John Marshall and his court secured the power of judicial review for the High Court in Marbury v. Madison, Martin v. Hunter’s Lessee 14 U.S. (1Wheat) 304 (1816) and Cohens v. VA 6 Wheat. 264 (1821).  After two hundred years we generally accept this premise because the analyses offered by Story and Marshall sealed the deal, so to speak.  In particular, the latter two cases outlining the justification for federal review of state cases involving national questions does not provide an “out” clause for a state judge that disagrees with a ruling or finds the ruling illogical.  Yet, this summer in Florida, we have a situation that is reminiscent of the battles between the Marshall Court and the Virginia Supreme Court back in the early 1800’s.

According to the Miami Herald, state judges in Florida are testing the strength of judicial review.[1]  In late July, a federal District Court judge, the honorable Mary Scriven (appointed by G.W. Bush in 2008), voided a 2002 state statute; the statute essentially relieved peace officers and prosecutors from needing to show knowledge of illegal drug possession to move forward with prosecution.  On July 27, 2011, Judge Scriven ruled that the law violated due process when passing on Mackle Vincent Shelton’s habeas corpus petition.  The ruling was followed by dozens of defendants asking for dismissal of their cases.

At last count, three state judges have outright ignored Judge Scriven’s ruling.[2]  These state judges, along with Florida’s prosecutors, determined that the federal judge’s analysis was not sound.  Another state judge agreed with the federal judge and has noted that the ruling is “absolutely binding”.[3]

As it stands now, the law is unconstitutional in some federal and state courts and constitutionally sound in others.  Surely, this is not an outcome we expect more than two hundred years after Chief Justice Marshall settled the question. The federal courts can review state laws if they violate a right guaranteed by the constitution or interfere with a federal statute.  And, if a federal District Court judge makes a troublesome or flawed ruling, the resort according to doctrine is to a higher federal court.

Yet, should judges and prosecutors as officers of the court, state or federal officers, be required to uphold the principles of Marbury, Hunter’s, and Cohens without considering the legitimacy or sagacity of the binding ruling?  Is this shirking of federal power another piece of evidence that the politics played with nominations and elections of both federal and state judges is eroding the ‘myth of the court’ and thus providing more fodder to the suggestion that our system may be outgrowing its limits?  Or, has the recent trend of judicial decisions that provide more power to the states also undermined the ability of the federal system to police the constitution and impose unfavorable opinions on the state courts?

[2] The Herald also reports that another federal District Court judge also disagreed with Scriven’s analysis and held the law constitutional.   However, this ruling came after several state judges ignored the federal court’s decision.

[3] Supra n.1

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