The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

justices come from the Quebec Bar. 80 By custom, three must come from Ontario, one from the Atlantic provinces and two from the three provinces of western Canada. 81 This mix of statutory and customary practice is done to ensure that interests of Canada’s provinces and territories are well represented by the Supreme Court of Canada. 82

3. Judicial Review in the U.S.

Although Article III never gave the federal courts judicial review power to invalidate actions of either the legislative or executive branches, the U.S. Supreme Court, in Marbury v. Madison (1803) assumed this power for itself and concluded that the federal courts have the power to invalidate actions of the other branches if the federal courts deem those actions to violate any provision of the U.S. Constitution. 83 Chief Justice Marshall, writing for the Marbury court, understood that this assumption of judicial review power could easily alienate the political branches of government and found an ingenious means to avoid a political confrontation on the issue with the then-Jefferson Administration that it would have lost, thereby forever debilitating the Court’s institutional prestige. 84 Because the judicial review power could be so decisive and because the judicial branch was designed to be the weakest of the three federal government branches, the U.S. Supreme Court has historically been reluctant to use this power, even in situations of manifest injustice. It has also used this power regressively to worsen the problem of racial hierarchy and social exclusion. For example, the Court’s first use of its judicial review power after Marbury, was the extremely problematic Dred Scott v. Sandford (1857), wherein the Court, in a majority opinion by then-Chief Justice Roger

80 Supreme Court Act, ss. 5 and 6 (2014 SCC 21). 81 McCormick, supra note 65 at 13. 82 Id. 83 Marbury v. Madison, 5 U.S. 137 (1803). 84 Id.

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