St. John’s University School of Law
Constitutional Law Spring 2010
John. Q. Barrett
I. Judicial Power and Judicial Review
a. JUDICIAL REVIEW
i. USSC: one Court with jurisdiction over—
1. Original (fixed list)
2. Appellate (basically anything but Congress can revise)
ii. Marbury v. Madison (1803): SC could not constitutionally hear the case as a matter of original jurisdiction. Although the Judiciary Act of 1789 § 13 authorized it, the statute was unconstitutional because Congress cannot allow jurisdiction beyond what is allowed in the Constitution. Established: Judicial Review—grants the federal courts the power to review the constitutionality of federal or state laws and executive actions.
1. What POWER does the USSC have under the Constitution?
a. Art. III Sec. 1: the judicial Power of the United States, shall be vested in one supreme Court.
b. Original and Appellate: Sec. 2 Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction.
2. USSC will not decide political questions.
iii. Cooper v. Aaron (1958): Governor of AK won’t enforce Brown.
1. Unanimous Court: the interpretation of 14A by this Court is the supreme law of the land.
a. So the Constitution isn’t the supreme law—what the Court says it is is the supreme law of the land.
iv. Lincoln’s Inaugural Address: warns of the danger of vesting all this power into this ‘eminent tribunal.’
1. The USSC decides a quarrel between two ordinary parties and it becomes powerful law. Lincoln warns we might ‘cease to be our own rulers.’
b. JUDICIAL SUPREMACY
i. REVIEW OF STATE COURT JUDGMENTS
1. Martin v. Hunter’s Lessee (1816): Court says we have the power to review highest state court judgments involving federal Constitution, laws and treatises. (Later extended to statutes).
a. Holding: appellate power of the USSC extends to cases pending in the state courts.
i. This is now a big part of Court’s docket.
b. Rejects VA’s view of the state and federal branches as co-equal sovereigns.
c. Rationale
i. Art. III says that the judicial power (including appellate) shall extend to all cases.
ii. Also, the Supremacy Clause means that Constitution applies to the states. It is the job of state court judges to faithfully apply the laws, so USSC can review them.
iii. Uniformity argument: when lower judges decide differently, the USSC must have the final word.
2. ADEQUATE and INDEPENDENT STATE GROUNDS
a. What happens when there is a purely state law, with no constitutional issue, in play?
b. Michigan v. Long (1983)
i. If the state court decision is clearly expressed as being decided on adequate, independent state grounds, of course we will not undertake review.
ii. If the ruling is ambiguous as to whether it relies on state or federal law, Court will review it. State has to make clear.
ii. Tiered Review and Preferred Claims
c. LIMITS ON JUDICIAL REVIEW
i. DIRECT POLITICAL CONTROLS
1. Impeachment of Justices
a. Art. II, sec. 4: all Civil Officers of the US shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
b. Art. I, sec 2: vests House with sole power of impeachment.
c. Art. I, sec 3: gives Senate sole power to try all impeachments.
2. Amendment of Constitution
a. Art. V
b. Not easy to amend Constitution. Only 33/over 10,000 have been approved.
i. Only 4 times in response to a USSC decision
c. What are the (implicit) limits to amendments? Are there any?
i. Think 13A (abolishing slavery). This contradicted many constitutional provisions which allowed slavery, but we all accept it as legitimate.
3. Appointment of Judges
a. Art. II, Sec. 2: the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.
b. Around ¼ nominations have not been confirmed by the Senate.
ii. CONGRESSIONAL POWER to CONTROL FEDERAL JURISDICTION
1. Power to Establish Federal Courts
a. Art. III vests power in “one Supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish.”
2. Exceptions/Regulations of USSC Jurisdiction
a. USSC divided into original (cases between states or involving diplomats) and appellate (everything else “with such Exceptions, and under such Regulations as the Congress shall make).
iii. Ex Parte McCardle (1869)
1. The first question is necessarily that of jurisdiction . . . Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.
2. USSC jurisdiction is conferred by the Constitution, but “with such exceptions and under such regulations as Congress shall make.”
3. Congress can delete USSC power.
II. JUSTICIABILITY
a. GENERALLY
i. Case or Controversy—Art. III, § 2: limits the jurisdiction of all federal courts to “cases and controversies,” requiring federal courts to deal only with real and substantial disputes that affect the legal rights and obligations of the parties having adverse interests, and that allow specific relief through a conclusive judicial decree.
b. NO ADVISORY OPINIONS
i. We are an adversarial system: we need two parties going against each other.
ii. “Case or controversy” requirement of Art. III has been regarded as precluding federal courts fro
i. MA v. EPA (2007): liberal majority says state has standing to sue the EPA to make them regulate emissions of motor vehicles.
1. States have a special position for standing—they are not ‘normal litigants’ for purposes of invoking federal jurisdiction.
2. Conservative dissent disagrees. State has not met three constitutional core elements. Court is transgressing proper role of judiciary in a democratic society.
ii. State Standing as Parens Patriae: two ways in which a state may assert standing to litigate as parens patriae to protect its quasi-sovereign interests (the interest that concern the state as a whole, as distinct from the welfare of individual state citizens).
1. State may assert its claim against a private party or another state;
2. State may assert its claim against the federal government.
d. ORGANIZATIONAL Standing
i. In addition to regular elements—
1. Members would have standing to sue independently;
2. Interests asserted are germane to organization’s purpose; and
3. Neither the claim asserted or the relief requested requires the members’ participation in the suit.
IV. RIPENESS and MOOTNESS
a. RIPENESS
i. An issue is not ripe if future events may render the decision unnecessary
ii. Timing of adjudication is critical; the Court will decide only those issues that are “ripe” and will not anticipate a question of constitutional law prior to the necessity of deciding it or pass upon issues that may or may not arise sometime in the future. These problems generally arise in suits for injunctions and declaratory judgments.
iii. To be ripe, a plaintiff must:
1. Have already suffered harm;
2. Be faced with a specific present objective harm; or
3. Be under threat of specific future harm.
iv. MOOTNESS
1. An issue is moot if past events make the decision unnecessary.
2. It is the ‘cousin’ of standing—the requisite personal interest must exist at the commencement of suit (standing) and continue until the end (mootness).
3. Exception: when issue is capable of repetition yet evades review. Requires a showing that:
a. Life of controversy is too short to be fully litigated prior to its termination;
b. That there is reasonable expectation that the P will again be subjected to the same problem.
i. Example: Roe v. Wade—nine months not long enough to fully litigate. USSC would hear after she had given birth. It was a class action, so some members would be pregnant again and desire abortion before the review was concluded.
