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Constitutional Law I
Santa Clara University School of Law
DeVito, Michael

I. Power of Judicial Review
a. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), is cited as authority for the judicial review power of courts. Marbury can be read as giving the judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution. Although many have argued that other branches also have the power and duty to interpret the Constitution, the Court increasingly contends that it has the ultimate power to do so.
II. Supreme Court Authority to Review State Court Judgments
a. Martin v. hunters Lessee legitimated supreme court authority to review judgments of the state courts. Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) upheld the constitutionality of section 25 of the Judiciary Act of 1789 which empowered the Supreme Court to review certain decisions of the highest state court which, generally speaking, ruled adversely to some federal right or claim. The Court rejected Virginia’s position that its courts’ interpretations were not subject to federal review regarding federal law. In Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), the Court again affirmed its power to review state court interpretations of federal law.
III. Judicial Exclusivity in Constitutional Interpretation
a. Cooper v. Aaron, 358 U.S. 1 (1958)[1], was a case in which the Supreme Court of the United States held that the states were bound by the Court’s decisions, and could not choose to ignore them.In an opinion signed by every justice, the Court noted that the school board had acted in good faith, and that most of the problems stemmed from the official opposition of the Arkansas state government to racial integration in both word and deed. Nonetheless, it was constitutionally impermissible under the Equal Protection Clause to maintain law and order by depriving the black students their equal rights under the law. More importantly, the Court held that since the Supremacy Clause of Article VI made the U.S. Constitution the supreme law of the land, and because Marbury v. Madison gave the Supreme Court the power of judicial review, then the precedent set forth in Brown v. Board of Education is the supreme law of the land, and is therefore binding on all the states, regardless of any state laws contradicting it.
i. Political Restraints on The Supreme Court
1. What means are available to the executive and legislative branches to counter Supreme Court decision other than voicing their disapproval?
a. judicial selection: the nomination and confirmation process à president nominates Justices to the Supreme Court subject to senate approval
b. Impeachment of Justices à ideological disagreement is not grounds for impeachment.
c. Court – Packing à congressional power over the size and budget of the court is a potential source of checking power
d. Court – stripping à Under the Exceptions Clause (Art. III, sec.2 cl. 2) Congress can make exceptions to and regulate the appellate jurisdiction of the Supreme Court. Does this clause confer broad power to restrict the Court’s appellate jurisdiction or simply to make limited exceptions? Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1868), held that Congress had power to remove the Court’s appellate jurisdiction regarding habeas appeals conferred by an 1867 Act. Still, appellate jurisdiction remained as conferred by the Judiciary Act of 1789 so all routes to the Court were not eliminated. United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), recognized some limits to Congress’ power to restrict appellate jurisdiction of the Court.
e. Constitutional Amendments à Article V specifies two methods for initiating the amendment process: Congress by a two thirds vote or two thirds of the states may apply to congress to call a constitutional convention “for proposing amendments.” The first, method is traditionally used the second remains untried.
IV. Constitutional and Prudential Limits on Constitutional Adjudication: The “Case or Controversy” Requirement
a. To qualify as a case or controversy
i. Advisory Opinions
1. Federal courts will not render Advisory Opinions.
2. Some state courts do allow advisory opinions
ii. Standing
1. Constitutional Requirements
a. Has suffered an “injury in fact” or imminently will suffer
b. Caused by the defendant’s conduct
c. A favorable judicial ruling would redress that harm.
d. Think of as three requirements 1. injury (directly+personally), causation (causal conncetion), redressibility (decision capable eliminating he

ng important constitutional and public law statutory questions. As such standing is crucial in defining the scope of judicial protection of constitutional rights.
iii. The Constitutional and Prudential Elements of Standing
iv. Mootness and Ripeness
1. Mootness: situation has taken care of itself At times, however, courts will hear such cases that are “capable of repetition yet evading review” because otherwise such cases would escape judicial review. (skipped)
2. Ripeness: Ripeness conveys the requirement that a dispute must have reached a point where the challenged governmental action has a direct adverse impact on the individual making the challenge. Self-executing acts are ripe once enacted; those that require some further action before a legal consequence attaches may be more controversial. At times, courts have held that such laws are not ripe until the further action has occurred. (skipped)
v. Political Questions are issues which the federal courts will not address because their subject matter is deemed to be not fit for judicial resolution. Baker v. Carr, 369 U.S. 186 (1962), articulates the classic statement of the various strands of the political question doctrine which includes a textual commitment of an issue to another branch, lack of judicial standards, impossibility of deciding an issue without policy judgments inappropriate for the judiciary, inability to decide an issue without showing disrespect for a coordinate branch, an unusual need to defer to a prior political decision, or a need for the nation to speak in one voice. Issues dealing with foreign policy or defense matters present classic political questions. (skipped)
Distinguishing Legal from Political Questions The Court declined to view as political questions the issues in Bush v. Gore, 531 U.S. 98