Fall 2016 Constitutional Law Hafetz
The Power of Judicial Review
Marbury v. Madison (1803)
What is the historical setting for the case?
Issues presented:
Does the withholding of William Marbury’s commission as a justice of the peace for the District of Columbia, violate a vested legal right?
Is there a judicially enforceable remedy, by writ of mandamus, to remedy this violation?
Court’s ruling (CJ John Marshall):
Marbury has a vested right to the commission
Marbury’s entitlement to the commission is a legal, not a political, question and thus a writ of mandamus would be ordinarily be appropriate
Court’s Ruling (continued):
Supreme Court, however, lacks the power to issue a writ of mandamus directing the President to deliver Marbury’s commission:
Section 13 of the Judiciary Act of 1789 purports to expand the original jurisdiction of the Supreme Court, by authorizing it to issue writs of mandamus to executive officers
: Article III, sec. 2 of the Constitution limits the set of categories in which the original jurisdiction of the Court may be exercised (cases involving ambassadors or consuls or in which a state is party)
Court’s Ruling (continued):
The statute (specifically, section 13), therefore conflicts with the Constitution
A “law repugnant to the Constitution is void”
establishes the principle of judicial review of the Constitution, the fundamental (or supreme) law of the country
What does Marshall rely to establish judicial review (since the Constitution itself does not reference it)?
Marshall’s Basis for Judicial Review:
Article III, sec. 2: authorizes the Court to decide cases “arising under” the Constitution
Oath Clause of Art. VI, sec. 3
Supremacy Clause of Art. VI, sec. 2
Structure and History
Framers’ adoption of a written Constitution
Relative institutional competence of courts and Congress in interpreting the Constitution
Describes the interpretation of the Constitution by courts as the “very essence of judicial duty”
How might Marshall have avoided reaching the result he reached in Marbury and invalidating the provision of the Judiciary Act as violative of the Constitution?
What factors might have nonetheless caused Marshall to reach the result he did?
What are the best policy arguments for judicial review?
What are the best arguments against judicial review?
Two distinct questions surfaced by Marbury, which are sometimes conflated:
Does the Constitution bind the federal government.
Does the Court’s interpretation of the Constitution bind the other two branches.
Does Marbury necessarily answer the second question?
Might Marbury be read as holding that a court may not act unconstitutionally in a litigated case, and not deciding whether the Court can order other branches from actions it deems unconstitutional?
What alternative readings might there be to Marbury and to notion of judicial supremacy?
Alternatives to idea of “judicial supremacy”
“Popular Constitutionalism”:
Rejects idea of judicial supremacy and depends on the people, through their elected representatives, to protect constitutional values and punish violations
What are the pros/cons of this view?
Constitutional pluralism:
Branches share interpretive authority over the Constitution
Even under Marbury, the legislature and executive can criticize Court decisions and campaign against them politically, hoping that the force of their reasoning will induce the Court to overturn them, and the people can overrule the Court’s decisions by constitutional amendment.
Constitutional pluralism goes further, positing that each branch has unreviewable discretion to interpret the Constitution within its own interpretive domain
What are the pros/cons of constitutional pluralism?
Cooper v. Aaron:
Arkansas Governor Orval Faubus and other state officials claimed authority to nullify Supreme Court decisions ordering integration of public schools
Supreme Court ruled that state officials cannot nullify decisions of the Supreme Court
President Eisenhower ordered federal troops to Arkansas to protect black students and enforce federal court orders calling for integration of Central Rock High School
Ex Parte mccardle (1869)
Habeas corpus petition brought by southern newspaper publisher imprisoned during Reconstruction for publishing incendiary articles advocating opposition to Reconstruction
District judge denies habeas petition and mccardle appeals to Supreme Court under 1867 statute which granted SCOTUS appellate jurisdiction over habeas petition denials
Congress eliminates Court’s jurisdiction over the case after case is argued but before decision is issue
SCOTUS validates congressional withdrawal of its appellate jurisdiction
However, as its subsequent decision in Ex parte Yerger made clear, another path to Supreme Court lay open, thus potentially qualifying McCardle
Case or Controversy Requirements
Article III: limits the judicial power to “cases” or “controversies”
Case or controversy requirement
Requires those challenging government action have a particular legal grievance, rather than an abstract policy dispute
Advisory Opinions
Federal courts will not give advisory opinions on the legality of executive or congressional action
Justices declined to provide President Washington with advice on U.S. policy of neutrality in the war between England and France in 1793
Nonadversary suits
No
d desegregation of plaintiffs’ schools too attenuated
Redressability
Will plaintiff obtain relief from a judicial decree
A common focus is on whether there are independent intervening actors
Third Party Standing
Litigants generally may not assert rights of others
But a third party may establish standing based on an identity of interest with the rights holder
Craig v. Boren
Beer seller permitted to challenge a drinking-age law that discriminated against male beer buyers
Generalized grievances
Courts are typically reluctant to interfere with or subvert the political process and to allow suits where harm is widespread and diffuse
The Court has found an exception for suits alleging congressional action under the taxing and spending power violates the Establishment Clause (allowing taxpayers to litigate objections to public expenditures that aid religion and thus exceed constitutional limits) (Flast v. Cohen)
This exception, however, has been construed narrowly and found not to apply to in-kind property transfers (Valley Forge Christian College v. American United) or provision of tax credits for contributions to school tuitions organizations then used to provide scholarships to students attending private schools, including religious schools (Arizona Christian School Tuition Org. V. Winn)
In some cases, the Court has found that injuries were “widely shared” and still found an injury in fact
E.g., Mass v. EPA (although there, the Court relied heavily on the fact Massachusetts is a sovereign state)
Can Congress confer citizen or taxpayer standing by statute, thus overcoming the prudential ban on generalized grievances (assuming constitutional injury-in-fact requirement is met)
Scalia in Part IV of Lujan: suggests the Constitution requires a certain type of personal injury (akin to those at common law)
Kennedy and Souter, in their separate concurrence, however, state that congressionally enacted citizen-standing provisions may be constitutional as long as they are specific about the nexus between the injury and the class of citizens authorized to bring suit
Doctrines of Non-Justiciability
Ripeness, Mootness, and Political Question
