Chapter 1. The Supreme Court’s Authority and Role .
1. The Power of Judicial Review
· Article III of the Constitution is silent on whether the federal courts can review acts of executive and legislative branches
Þ Marbury v. Madison (1803)
¨ Establishes the authority for the judiciary to review the constitutionality of executive and legislative acts
¨ Marshall’s Arguments for judicial review:
© Having a written constitution is pointless if Congress can change it all willy nilly or ignore it at will
© Textual Argument: Article III grants the power to decide cases “arising under the constitution”
© Some constitutional provisions are specifically addressed to the courts, so
© It is the province and duty of the judicial department to say what the law is
§ Federalist No. 78: the interpretation of the laws is the proper and peculiar province of the courts
© Some constitutional provisions are specifically addressed to the courts, so courts must not yield to the legislative act of changing the rule
© The supremacy clause , Article VI, declares that state judges must apply the Constitution to federal laws made in pursuance to the Constitution as the supreme law of the land
§ So the Supreme court should be able to exercise the same power in its appellate capacity
© Since Article VI requires judges to take an oath to support the Constitution, they cannot uphold unconstitutional laws without violating this oath
· Meaning of Marbury v. Madison
¨ Broad
© Book: courts have a special competence to interpret law, including the Constitution, so that thye are the ultimate, supreme interpreters of the Constitution
© The Supreme Court should and is the only one that can interpret the Constitution
§ “It is emphatically the province and duty of the judicial department to say what the law is”
© Implications
§ The court does not need to defer to other branches
§ The courts should decide any ambiguities in the Constitution
¨ Narrow
© Book: judicial review is a byproduct of a court’s duty to decide cases within its jurisdiction in accordance with law, including the Constitution
© The court is there to resolve disputes
© Implications
§ The court should show deference to other branches
§ The courts should interpret the Constitution when doing so is necessary in deciding a case (should avoid if can)
2. Supreme Court Authority to Review State Court Judgments
Þ Martin v. Hunter’s Lessee (1816)
¨ Legitimated the Supreme Court’s authority to review judgments of the state courts
© Supreme court review ensures uniformity in the interpretation of federal law/Constitution
© If Congress did not create lower federal courts, then Supreme Court would not have any cases besides the ones the Constitution gives it
· Further Clashes Between Supreme Court and State Court Authority
Þ Cohens v. Virgina (1821)
© Supreme Court sustained its jurisdiction to review the validity of state laws, including criminal proceedings
§ State courts often can’t be trusted to adequately protect federal rights, because state judges are dependent for office
§ So criminal Δs can seek review if they think their conviction violated the Constitution
3. Judicial Exclusivity in Constitutional Interpretation
Þ Cooper v. Aaron (1958)
¨ Broad reading of Marbury
¨ The Constitution is the supreme law of the land (Article VI) and Marbury declared that the federal judiciary is supreme in interpreting the Constitution, so every state legislator/executive/judicial officer must follow the Constitution as the Supreme court has interpreted it
© Even though State was not a party, it is bound to the interpretation the Supreme Court made, which is not the usual way
· The Authoritativeness of Supreme Court Decisions
¨ Are Supreme Court decisions binding on Congress?
© Dickerson v. UnitedStates: no
§ Congress retains the ultimate authority to modify or set aside judicially created rules that are not required by the Constitution, but may not supersede decisions in interpreting and applying the Constitution
· Political Restraints on the Supreme Court – Checks on the Supreme Court
¨ Judicial selection: the nomination by the President and confirmation by the Senate (Article II §2, cl. 2)
¨ Impeachment: House can impeach and Senate can convict for treason, bribery, or other high crimes and misdemeanors (Article II §4)
¨ Court-Packing: Congress sets the size and budget for the court
¨ Court-Stripping: Congress has power to make ‘exceptions’ to the Supreme Court’s appellate jurisdiction (Article III, § 2)
Þ Ex Parte McCardle (1869): although appellate jurisdiction for the Supreme Court is not derived from acts of Congress, but from the Constitution, jurisdiction is nevertheless conferred with such exceptions and under such regulations as Congress shall make
¨ C
pute is insufficiently developed and is instead too remote or speculative to warrant judicial action
© Injury is not here yet
· Political Questions:
¨ From Marbury v. Madison
© Disavowed the court’s authority to intervene with presidential decisions in which the President possessed a Constitutional or legal discretion
¨ The court refuses to review cases with subject matter that the court feels should be left to the politically accountable branches of government
Þ Baker v. Carr (1962)
¨ 6 factors to be considered in determining if political
© Constitutional factors
§ Textually demonstrable commitment to another branch
§ Lack of judicially discoverable and manageable standards (no legal footprint/some legal guidance of dealing with issue)
§ Initial policy determination (if no legal standard, would require policy choice)
© Prudential factors
§ Lack of respect to other branches
§ Unusual need for adherence to decision already made
§ Embarrassment of multifarious pronouncement (important for the country to speak with one voice in situations involving foreign relations)
· Distinguishing Legal from Political Questions
Þ Powell v. McCormack (1969)
© House refused to seat Π because he falsified some documents, though satisfied the Constitution’s requirements
© Court found justiciable
§ Only found first element present, and noted that sometimes different branches will interpret the Constitution differently
Þ Goldwater v. Carter (1979)
© Court would not decide whether President had power to unilaterally terminate a treaty, when Senate can participate in treaty ratification
§ Would have to choose between two branches and could result in multifarious pronouncement with foreign treaty
Þ Nixon v. United States (1993)
© Appeal from Senate committee for impeachment trial was not justiciable
§ “Sole” in Constitution weighs heavily for textually demonstrable commitment to another branch
