I. Judicial Review
A. Background—The United States is one of the few countries in the world that allows an unelected judiciary review legislation and executive actions to determine whether they meet constitutional standards. Since 1789, the Supreme Court had judged 179 federal laws unconstitutional.
1. Marbury v. Madison—in 1801, with the requirement to hand over the reins of power to the Jeffersonian Democratic-Republicans, John Adams and his secretary of state, John Marshall, decided to pack the federal judiciary with Federalist appointees. In the haste of changing governments—and for Marshall, jobs, since he had been appointed Chief Justice of the Supreme Court—not all warrants were delivered to recipients (which was also Marshall’s job). Jefferson and his secretary of state, James Madison, were so angered by what they considered a dishonest act that they decided to leave the warrants undelivered. Madison was then sued by William Marbury, one of those promised a new federal judgeship that saw his opportunity slipping away. The opinion of the Court, written by new Chief Justice John Marshall, stated that the government was wrong in taking this action, and the Court could order the government to issue a writ so ordering the government to do so, but the legislative act authorizing this action, the Judiciary Act of 1789, was itself unconstitutional.
2. McCulloch v. Maryland (1819)—Marshall, again writing the opinion for the Court, held that the state of Maryland had no right to tax a branch of the national bank in the state because federal laws always superceded state laws. This argued that any laws promulgated at the federal level had to take precedent over state laws, and state laws in conflict with federal statutes were in fact invalid. This view was not widely accepted; in fact, President Andrew Jackson, at the end of his term, placed his treasury secretary (and former attorney general) Roger B. Taney at the head of the Supreme Court upon John Marshall’s retirement because Taney shared Jackson’s view of the supremacy of states’ rights over federal legislation.
B. Ideology—If you allow this review process to be undertaken, then one would like to have some idea of the appointee’s ideology, it would seem.
1. Activist approach—The view that the general principles underlying the Constitution and its often vague language, amplifying those principles on the basis of some moral or economic philosophy and applying these principles to the case at hand would be in keeping with the spirit of the Framers when they created the Constitution.
2. Strict constructionist approach—that judges should confine them to applying the rules that are stated in or clearly implied by the language of the Constitution.
3. Purity of essence—Obviously, neither side in this debate can claim that they stand purely on one side in opposition to the other, since both use elements of these approaches to justify their ideology on a variety of topics.
C. Development of the Federal Courts—most Founders probably expected the Supreme Court to have the power of judicial review (although they did not see fit to say anything about it in the Constitution itself), but they also expected that the Court would play a relatively minor role in the federal government.
1. National Supremacy and Slavery
a. Marbury v. Madison
c. Scott v. Sanford
2. Government and the Economy—from the end of the Civil War to the early years of the New Deal, the Supreme Court was largely concerned with protecting the rights of property from government intrusion, eventually even deciding that the 14th Amendment—which was passed in order to overturn Scott v. Sanford and provided African Americans citizenship—actually included the protection of rights of corporations from by trampled by the government. I would also respectively disagree with Prof. Wilson’s contention that the Supreme Court could not be quite accurately represented during this period as either “pro-business” or “anti-regulartion,” because, with a few significant exceptions, it behaved in just such a manner.
a. Slaughterhouse Cases (1873)
b. Schecter Poultry Corp. v. United States (1935)
3. The Protection of Political Liberty and Economic Regulation—after the Schecter Poultry decision until 1974, the Supreme Court did not overturn a single piece of legislation of federal attempts to enact regulations on business—although it did void 36 congressional enactments that violated personal political liberties.
D. Structure of the Federal Courts—the only federal court authorized by the Constitution is the Supreme Court; all other federal courts and their jurisdictions are the creation of Congress. Constitutional courts authorized by Congress that exercise the judicial powers described in Article 3 of the Constitution have been given the same constitutional protections the Supreme Court enjoys; legislative and military courts, authorized by Congress for some specialized purpose, have judges appointed to fixed terms.
1. Federal district court—the lowest federal court. Each state has at least one, along with the District of Columbia and the Commonwealth of Puerto Rico. Cases heard in federal district court involve those claims for which the federal government would have jurisdiction.
2. US Court of Appeals—plaintiffs in a federal case who feel that their case was wrongly adjudicated may appeal that case to the US Court of Appeals; the Supreme Court will generally only hear those cases that have been heard in these courts first.
3. State courts—plaintiffs must first appeal their cases through the various state courts of appeals before submitting a case to the Supreme Court—and then the plaintiff must prove that some federally-guaranteed right is in question.
4. Senatorial courtesy—although the President appoints all federal judges, Senators from various states are asked to submit nominees for positions in the federal courts within their states.
E. Jurisdiction of the Federal Courts—Federal courts are only authorized to hear cases involving questions set out in Article 3 and the 11th Amendment in the US Constitution—these are “federal question cases.” All other cases are left to the state courts. Despite these restrictions, the case load of the federal courts is enormous.
1. Writ of certiorari—this is a document issued by the Supreme Court when at least four of its members are convince that a case submitted for consideration involves a “substantial federal question” (such as whether the federal government can require all Americans to purchase health care, for instance).
F. Getting to court—in theory, the courts are the great equalizer in the federal government, since we are “all equal before the law.” In practice, however, if you do not have the means to hire a very, very good lawyer, the chances of you getting your case heard by the Supreme Court is not very good.
1. In forma pauperis
2. Fee shifting—enables the plaintiff, should they prevail in the case, to collect court costs from the defendant.
3. Standing—a legal concept that defines who is entitled to bring a case before the court.
4. Sovereign immunity—you cannot sue the government without the consent of the government
G. The Supreme Court in Action
1. Briefs—documents submitted by the lawyers for the plaintiff and the defendant that summarize the lower court proceedings, the arguments for their side, and discussing similar cases to theirs that the Court decided in their favor (called citing precedent).
2. Amicus Curiae—arguments submitted by a party not a part of the proceeding as a “friend of the court,” supporting one side or the other.
3. Opinion of the Court—submitted in writing (although sometimes read from the bench), in which the Court gives the reasons for deciding the case in the manner they did. This opinion reflects the opinion of the majority of the justices.
a. Dissenting opinion—not all opinions issued by the Court are unanimous; those justices who disagree with the majority issue a dissenting opinion, where they give their reasons for disagreeing.
b. Concurring opinion—sometimes Justices who agree with the majority do so for reasons other than those stated in the majority opinion; they will then issue a concurring opinion.
H. Power of the Courts—most cases in federal courts have little to do with public policy; at other times, however, courts can (and have) set policy.
1. The Power to Make Policy—courts have made policy by declaring laws, acts of the President, and practices unconstitutional.
a. Stare decisis—the usual practice of the court, in which they allow common practices and interpretations of the law to stand; in other words, they follow precedent.
2. Views of Judicial Activism—particular view of judicial activism are largely a result of one’s view of the particular case in which the court decides to be activist in.
3. The Causes of Activism—in order for judges to act in an activist manner, the law must be sufficiently vague to leave an opening for a new interpretation. There also must often be a change in the mindset of a substantial portion of the populace willing to go along with this change, since the court is reliant upon other branches of government to actually enforce their decisions.
I. Checks on Judicial Power
1. Congress and the Courts—Congress has a number of ways of checking the power of the judiciary. The can impeach justices accused of wrongdoing, they can refuse to confirm those they feel will make bad judge, in rare instances Congress undo an interpretation by amending the Constitution—and they can limit the types of cases reaching the Supreme Court by changing the entire jurisdiction of the lower federal courts
2. Public Opinion and the Courts—although they like to think otherwise, federal judges are effected by public opinion; see the “switch in time that save nine,” the change in opinion that Justice Owen made during the New Deal.
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