I. Judicial Review
A. The power of the Supreme Court to review the laws of the federal and state government
1. The power of the courts to declare acts of government officials unconstitutional.
B. Marbury v. Madison
1. Facts and Background
a. Filed mandamus suit directly to the Supreme Court
b. Congress created new judgeships in D.C. but didn’t get commission slips signed and delivered in time before Jefferson took over and Adams was out.
c. Jefferson refused to allow the judgeships
d. Marshall and the SC win, but Marbury loses petition
a. Does Marbury have right to commission?
a. Answer – Yes. At point of sealing it is valid.
b. Can the Court provide a remedy?
a. Political or legal question?
(1) Legal – would ordinarily get remedy
(2) Not a matter of politics or political question
(3) Political Question Doctrine
(a) Sometimes, decision should be made by other branches of the government, not the SC because not a matter the court should review
c. Can SC issue the mandamus?
a. Judiciary Act of 1789- said Sup. Ct. could hear mandamus claims
b. Jefferson – Constitutional Art. III argument
(1) Art. III lists when the SC has jurisdiction
(a) Clear, self-evident categories of original jurisdiction, writ of mandamus isn’t one of them, so Congress can’t grant court that power above Constitution which is supreme law of land.
(2) Text v. Structure
(a) Arts. I, II, III
(i) Enumeration and separation of powers
(b) Congressional Power or judicial power
(i) This here is not listed in Art.I or III
(ii) Structurally does not fit document
c. Clashing provisions
(1) Statute clashing with Constitution
(2) Statute Must yield- A law repugnant to the Constitution is void
(i) Supremacy Clause
(b) Inherent in Constitution indicating its Supremacy
(i) Constitutes foundation
1. Meaning of language meant to be dispositive
d. When Constitution clashes with Statute, who has the power to say so?
a. Textual Argument (re-read 21-31)
(1) Arising under clause, textual argument
(a) Ties court to Const.
(b) Not exclusive, however
(2) What gives final power to courts?
(a) Its inherent in judging
(b) Emphatically duty of judicial department
3. Marshall avoided escapes in making this decision
a. Could have stepped off of case, recused
b. Could have said delivery was needed
a. Same result, no review
c. Could have stated it was a political questions
a. As marked by text to another branch
b. Lack of discoverable standard, desire to avoid intermingling of branches
d. Could interpret the statute narrowly, match it to Const.
e. Could have read Art. II – executive powers of appointment as a floor but not a ceiling.
f. Does the Const. only apply, or does Court get to say what Const. does?
a. Big Marbury wins, binds other branches
4. Court still has dispositive view
a. Potential for minority to rule over majority- constitution in place to protect minority, majority doesn’t need protection.
3. Cooper v. Aaron- reaffirms by 9 Justice vote, courts function as final voice
C. Political Question Doctrine
1. What marks something as political and not legal?
2. Start with text of Const.
a. some functions left to other branches
a. Right to remedy, test only starting point
4. What do you care about when asking if justiciable?
a. Look at consequences for judiciary
5. Generally, two step prices on how to decide justiciability
a. Look at text- separation of powers
a. Assignment/textual commitment of a function to a non-judicial branch à political question
b. Prudential/Discretionary Level- about finality and what effect will be
a. Avoid multifarious pronouncements by various departments
b. Branch respectability
c. Creating too big a burden on the judicial branch, not necessarily requisite issue.
(1) Politically problematic
d. No manageable standards for adjudication
6. Baker v. Carr
a. Before this case, these areas were avoided
a. Foreign relations
(1) president represents US in foreign relations
b. Guaranty Clause
(1) Guarantees states republican form of government (Art. IV.4.1)
(2) Form of representative-elective government
(3) Luther v. Borden
(a) Marshal law type government, say unconstitutional
(b) That Court – not justiciable, up to Congress
c. Validity of Constitutional Amendments
d. Apportionment of representation and equal protection
(1) Same as Baker
(2) Colgrove v. Green
(a) Debasement of votes
(b) Court calls this area non-justiciable
(c) No manageable standard
(i) Not competent to do so
(d) Don’t reach merits
(e) More of a political question
b. Here, the non-justiciability of Colgrove was reversed
– Why different from Colgrove?
– Colgrove was brought under non-justiciable guarantee clause(as that’s left to Congress textually), this is brought under equal protection clause, which is justiciable.
(1) Avoiding throwing out and rejecting all political question doctrine and confining justiciability to apportionment here
(2) Why is this different?
(a) Here, dealing with states, not issue left to one of the other branches
(b) Not an intra-branch government issue
(3) Racial concentration, later adjudicated to the one person one vote rule in Reynolds v. Simms
(a) Justiciability grows
b. Powell v. McCormack
(1) Congressman from Harlem, firebrand civil rights activist
(2) House refused to seat him for false use of funds
(3) Textual Commitment
(a) Each house judges qualifications
(b) Looks like non-justiciable
(i) Merits affect justiciability
(ii) Court looked at saying textually Congress gets to judge those standard explicitly set out. Rejected claim of embarrassing confrontation with other branch saying that it’s judiciary’s job to be ultimate interpreter of constitution and can’t avoid that job just because at odds with another branch. There are also judicially manageable standards to handle it.
(c) Rethinking justiciability in modern world
c. Goldwater v. Carter
(1) Power of President to abrogate treaty w/ Taiwan w/out Congress approval
(2) Executive power over foreign relations
(3) Court found non-justiciable
(a) Issue political according to plurality because dispute between coequal branches, not federal and state.
(b) Justiciability stopping at shores- prudent not to take on gov’t where armies are concerned.
(4) J. Powell – would be justiciable but voting to dismiss due to ripeness
d. Nixon v. US
(1) Federal judge accepted bribes – convicted
(a) In prison, has not resigned from bench
(b) House impeaches, Senate tries and convicts
(2) Nixon sues
(a) Complains only committee heard evidence, making recommendation
njury. Only distinguishable thing here is that they are currently being hurt rather than might be hurt in future- still chill argument
– redressability- exec. Might have done it anyways because they have job to protect.
– Political question? Judicially manageable standard and reserved to another branch- not discussed, but could’ve made these arguments.
a. Art. III- Can’t provide advisory opinions
(1) Can’t be forward looking
(2) Must go back – case or controversy
(3) Too speculative
b. Ripeness Requirements
a. Don’t want premature/speculative cases
b. Need actual injury
c. Need good, sharp record
c. RAT: why no advisory opinions
a. Textually: Based on a fairly strict model of branch separation. It’s a sequence too. The judiciary comes later in article III, after Article I and II. It’s also not an elected position.
b. Prudentially: There is nothing that says that the pres. Or congress has to listen to the advisory opinions either, so not only is it moot, it’s undermining the prestige of what the Supreme Court’s word is supposed to stand for.
a. Too late for judicial remedy to be meaningful
b. right to die claim
(1) claimant dies, claim becomes moot
(a) remedy would be of no use
(b) here, however, exception to mootness
(i) would perpetually avoid adjudication
(ii) pregnancy another example, yes moot after 9 months and litigation would still be ensuing, but likely to arise again.
c. Ways to avoid mootness
(1) continuing harm to plaintiff
E. How state courts interpretations of federal constitutional matters became federally justiciable matters
1. Martin v. Hunters Lessee
a. § 25 of Judiciary Act
a. SC had jurisdiction to review state courts on review of federal matters
– Rejected state sovereignty argument- state judiciaries are not immune
– Read p. 73; has best state sovereignty argument
b. Textual argument- Appellate jurisdiction here comes from Art. III
c. SC wants last word on the Const.
(1) Otherwise, there would be no uniformity on constitutional interpretation – Can’t be changes across state lines
b. Cohens v. VA gave sup ct. right to review state criminal cases for constitutionality
2. Ex Parte McCardle
a. Supreme Court’s appellate jurisdiction exists only as provided by Congress and therefore they have some power to control the boundaries of Sup. Ct. app. Jurisdiction
– Exceptions Clause- Congress can make exceptions to Cts. App. Jurs.
– Ways Congress can over-rule Supreme Ct. Cases
a. Amendments to the constitution
b. Impeach a judge (never happened)
c. Can make exceptions to the supreme courts appellate jurisdiction.