There are in reality different judicial systems in the United States of America. the federal court system and the court system in each 50 states. but the United State Supreme Court, serving as the court of last resort.
Actually, even though the U.S. Supreme Court receive much attention and adulation as well as much criticism, we might get some advice for development of Korean Constitutional Court system from the U.S. Supreme Court system. especially Judicial review in the U.S. which means that ordinary courts may declare any congressional act void when they violate the Constitution is the backbone of the United State's Constitutional Law. The doctrine of judicial review has been widely admire by lawyers and scholars in the U.S. as well as in foreign countries. Also many countries including Japan, Korean.
This study is intends to analyze various aspects of the constitutional status and role of the U.S. Supreme Court, and problems of its implementation in to the constitutional system of Korea. This study consists of five chapters.
In Chapter 1. Introduction of this study. purpose, scope and methodology of this paper are included here
In Chapter 2. overviews the system of the federal and state judiciary of the United States. All the court systems in the United States, state and federal, have two basic types of courts: trial courts and appellate courts. The two have different functions and characteristics.
In Chapter 3. deals with the Constitutional Role and Judicial review of the United States Supreme Court. The Supreme Court is the only court that is specifically created by the Constitution. However, its composition and jurisdiction are determined by Congress.
There are two routes to review In the Supreme Court: an appeal. as a matter of right and the discretionary grant of a writ of certiorari. Very few cases fall into the category of appeals as of right, so as a practical matter certiorari is the only way to gain Supreme Court review. Certiorari means to "bring up the its record", and essential first step for review of a case by an appellate court. By exercising its appellate certiorari jurisdiction over cases involving issues of federal law coming from the lower federal courts and the highest courts of the states, the Court maintains the supremacy and consistency of federal law.
And focusing on the judicial review of governmental action such as legislations. Judicial review was officially recognized in 1803 in Marbury v. Madison. The basic idea behind Marbury is that constitutional judicial review of legislations is nothing extraordinary. As the Court observed, the first "province and duty" of all courts is to determine "what the law is" in any case before them.
The most impartial limit on the federal judicial power is imposed by a series of principles termed "justiciability" doctrines. The justiciability doctrines determine which matters federal courts can hear and decide and which must be dismissed. specifically, justiciability includes the prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine, Each of these justciability doctrines was created and articulated by the U.S. Supreme Court. Neither the text of the Constitution, nor the Framers in drafting the document, expressly mentioned any of these limitations on the judicial power.
In the Meanwhile, when the Supreme Court reviews the constitutionality of a legislation, the Court has used the balancing standard, the less restrictive alternatives standard, double standard and so on. These standards could give a correctable direction to Korean Constitutional Adjudication system.
In Chapter 4. Judicial review system of the United States would give some valuable suggestions to Korean constitutional adjudication system, by means of a comparative study between U.S. supreme Court and Korean Constitutional Court in their functions and roles, because although, in its institutional aspect, the Korean Constitutional Court system based on the concept of American judicial review. Therefore, it has many common institutional factors with that of the U.S., and indeed shares in many of the features common to all judicial review systems.
In Chapter 5. summaries the author's arguments, as a conclusion of this study, and proposal of the measures to improve and localize the Korean Constitutional Court System. Furthermore, many experiences in the U.S. concerning the scope and limit of judicial review(standard) will be also helpful where the system of Korean Constitutional Court System.