CONSTITUTIONAL LAW
I. Role of the Supreme Court in Constitutional Order
a. Introduction
i. Chemerinsky: pp. 1-28
b. Authority for Judicial Review
i. Basic Framework
1. Marbury v. Madison and Legitimacy of Judicial Review, pp. 2-20; 26-30
a. Historic/ Procedural Background:
i. Battle between Federalists and Anti-Federalists: Midnight Commission by John Adams of more federal judges to shift balance in favor of federalists
ii. When Jefferson becomes President, Marbury has not received his commission that was signed by then President Adams- failure of delivery
iii. Jefferson’s Secretary of State, Maddison, refuses to appoint Marbury the commission
iv. Marbury sues in Supreme Ct. according to 1789 Judiciary Act granting S. Ct. original jurisdiction in cases involving writs of mandamus.
b. Court Asks 3 questions:
i. (1) Is Marbury entitled to a commission?
1. CT: Yes, rights vest on Adams signature, not his delivery.
ii. (2) Does the law provide a remedy?
1. Yes. Every right is entitled to remedy. This is the foundation of a civil system. “The government is one of laws, not men”- meaning even the president must follow the law.
2. Exception is for “political questions”
a. Political questions are outside of the realm of the Court. The Constitution grants some political power to president: war, and to appoint cabinet, that falls outside of justiciability.
b. The remedy for a political question is throwing an official out of office, it is not a judicial remedy.
3. Mandamus s NOT a political question.
a. Mandamus involves the legal rights of individuals. This creates a duty for branches of the government to enforce.
b. Law clearly imposes a duty on Madison to deliver the commission.
c. This establishes the right of the judiciary to review the actions of the executive.
iii. (3) Does S. Ct. have the power to issue a mandamus as a remedy?
1. No. 1789 Judiciary Act is Unconstitutional
a. Act authorizes original jurisdiction to S. Ct. for mandamus.
b. A. III limits original jurisdiction to specifically designated cases and NONE OTHER.
2. Court has ultimate power to determine if legislation is constitutional or not.
a. 2 Structural Arguments
i. Theory of written Constitution: C is higher, fundamental law. Legislature cannot alter C. by § law without destroying supremacy of C.
ii. Judicial Expertise: “it is emphatically province and duty of judiciary to say what the law is.” Federalist 78 “peculiar province” of the court.
b. 3 Textual arguments:
i. A. III delegation to the judiciary to cases and controversies “ARISING UNDER” the C. Why grant this power to courts if C. did not want to give judiciary this power?
ii. Oath to support constitution: judges must swear an oath to the C.
iii. Supremacy Clause: federal § laws are subservient to C.
c. Result: Court dismisses for lack of jurisdiction. Marbury does not receive his commission but President Jefferson acquiesces to Judicial Review: the power of the Court to be the final review and say of the constitutionality of the actions of other branches of government. Court puts Jefferson in a corner. What is he going to do- appeal the decision that was rendered in his favor?
d. OUTCOME:
i. (1) Court is granted power of judicial review- “it is emphatically the province and duty of the judicial department to say what the law is”;
ii. (2) Constitution is deemed ultimate law of the land and other branches can only act if in accord with Constitution- “government of laws, not men.”
iii. (3) Marshall makes distinction that some “political questions” are outside the justiciability, jurisdiction and review of the Court.
ii. Review of State Court Judgments
1. NOTE: S. Ct. can only review state court decisions on federal law. Contract law, etc., wholly unto the state is NOT reviewable by S. Ct.
a. If a state can provide “independent and adequate state grounds” for a decision, this will insulate that decision from being reviewed by S. Ct.
2. Martin v. Hunter’s Lessee (1816): S. Ct. granted jurisdictional power to view constitutionality of stat
government
b. there is an “irksome” or delicate issue and to avoid conflicting with another branch
c. where there is a political remedy (voting someone out of office)
2. Baker v. Carr (1962): Court holds that EP claim against state’s current configuration of state legislature IS a justiciable issue and is not a political question.
a. BACKGROUND: π’s seek judicial order forcing Tennessee state legislature to reconfigure.
b. OUTCOME:
i. Dominant concern of political question is the Separation of Powers and respecting co-ordinate branches of government.
ii. 6 part test based on 2 grounds: (1) CONSTITUTIONAL (2 parts) + (2) PRUDENTIAL (4 parts)
1. Constitutional:
a. (1) textual commitment to coordinate branch in SOP;
b. (2) lack of judicially manageable standards to deal with the issue (if so, it is nonjusticiable)- in other words, is the Court fit to hear this case and would a Court ruling bring finality to the matter?
2. Prudential: Generally, is it wise for the Court to take the case?
a. (1) Impossibility of deciding the issue without a policy determination
b. (2) Impossible for the Court to undertake without disrespecting another branch
c. (3) Unusual need for an unquestioning adherence to a political decision already made;
d. (4) Potentially embarrassing pronouncements by other branches that would not coordinate with judicial decision.
iii. HERE: NOT a NON-JUSTICIABLE issue
1. There is no SOP concerns because this case involves a STATE actor and not a co-equal branch of gov’t
2. There is no potential embarrassment
3. There does exist a judicially manageable standard: EP clause: 1 man, 1 vote.
iv. Frankfurter DISSENT:
1. Policy decision. Judicial has no expertise here, nor does it have a constitutional requirement: 1 man 1 vote is preference, not constitutional requirement.
2. Response: there is no political accountability here, judicial review is necessary because the political process is shut to this group affected.
3. Powel v. McCormack (1969)
a. BACKGROUND: House of Reps. Refuses seat to a congressman accused of fraud.
