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Constitutional Law I
St. Johns University School of Law
Barrett, John Q.

The Standards of Review
A.     Rational Basis (Dormant Commerce Clause, SubDPC, Non-suspect EPC)
Legit State obj
Rational Relation
          SubDPC ( non FR)
          EPC (non FR, non-suspect, economic, illegals, aliens for gov’t positions)
          K clause
Where the “mere rationality” standard is applied, the governmental action will almost
always be upheld.
B.      Intermediate Scrutiny (Quasi Suspect EPC, Content Neutral Speech)
                  Substantially related
                                      EPC (quasi-suspect)
                                      Content Neutral Expresssion
C.     Strict Scrutiny (Race, National Origin, Religion (EPC or Est. Clause), Alienage, FR (“privacy”, travel, vote, access to courts)
Compelling State Interest, but will probably be shot down
No less restrictive means
Where “strict scrutiny” is used, the governmental action will almost always be struck
a. SubDPC/ FR will invalidate gov’t restrictions
b. EPC “Suspect classifications” include race, national origin, and (sometimes) alienage.
FR include the right to vote, to be a candidate, to have access to the courts, and to travel interstate. 
c. If Freedom of expression:
      *Gov’t intereference w/ expression is content-based way? (probably will be struck down)
       * Gov’t interference with freedom of association?
d. Free Exercise of Religion Clause: Even if the government does not intend to impair a person’s free exercise of his religion, if it substantially burdens his exercise of religion the government will have to give him an exemption from the otherwise-applicable regulation unless denial of an exemption is necessary to achieve a compelling governmental interest.
D.    Consequences of Review Standard
1. Burden of persuasion:
a. Mere rationality: plaintiff bears.
b. Strict scrutiny: governmental body bears.
c. Middle-level review: usually the gov’t bears.
2. Effect on outcome:
Exam Tip: concentrate exceptionally hard on choosing the correct standard of review. Then go further and make a prediction about the outcome: if you’ve decided that “mere rationality” applies, write something like, “Therefore, the court will almost certainly uphold the governmental action.” If you’ve chosen strict scrutiny, you should write something like, “Therefore, the governmental action is very likely to be struck down.”
The Judicial Function
A. Judicial Power & Judicial Review
1.                        Marbury – Federal cts have the power to review the constitutionality (C-ity) of federal or state laws or executive actions, not Congress.
a.    The C binds the Federal Government.
b.     The Ct’s interpretation of the C binds the Fed Gov.
i.    Supported by Art III. The C itself assigns the Ct the job of interpreting it and therefore, the court’s word is the law.
C. Article III, Section 2 sets out the federal judicial power: (a) “federal question”; (b) cases of admiralty; (c) cases between two or more states; (d) complete diversity; and (e) cases between a state or its citizens and a foreign country or foreign citizen.
2. Judicial Supremacy (Cooper v. Aaron, 358 U.S. 1 (1958))
a.    The 14th amendment makes Brown the supreme law of the land, and thus AR is governed by it. US rulings are supreme/ C. 
b.     Questions Raised by Marbury & Cooper:
i.    Does judicial supremacy subvert the constitutional design?
À    A case resolved is binding on the parties, so the Federal Government has the last word when the Government is a party. Thus in Dredd Scott, the Federal Government didn’t have a duty to obey. Since the parties were individuals.
c. Art V s. 2, textual element of supremacy of C – parties take oath to uphold the C, and Art. OOO has the enumerated powers          
3.Review of State Ct Judgments (Martin v. Hunter’s Lessee)
Review limited to decisions of highest state court available to the petitioner.
Example: A state trial court finds a particular state statute to be valid under the federal Equal Protection Clause. An intermediate appellate court in the state affirms; the highest state court refuses to hear an appeal from the affirmance. As a matter of both the federal judicial power and federal statutes, the Supreme Court may hear this case, because the intermediate appellate court was the highest court “available” to the petitioner.
a.   Hunter’s Lessee – Appellate power is not limited to any particular federal court, and art III extends appellate power of the court to all cases.
a.   Section 25 of the judiciary act is constitutional, and thus Sup Ct may exercise appellate jurisdiction over the decisions of St supreme courts.
b.    Art VI, the supremacy clause makes the C the supreme law of the land, binding the judges in every state.
c.     Art I s. 10, is crowded with provisions which restrain or annul the powers of the states, powers which are transfered to the Federal Government. That the potential for abuse exists does not change this situation.
d.    Limitation: “Independent and adequate state grounds” mean US may not review state court, b/c opinion would be advisory. Supreme Court may review state court decisions based on federal law.
i.   Issue: Does the appellate power of the sup ct encompass a state ct decision containing issues of both state and federal law?
À   States must clearly state that they are deciding the issue on an “adequate and independent state ground.”
Á                     The state ct’s adjudication on state law is insulated from federal sup ct review.
a. EXAMPLE: Violations of state and federal constitutions: State action violates the same Equal Protection Clause of the state and fed C.
    i. If the state court is saying, “This state action would violate our state constitution whether or not it violated the federal constitution,” that’s “independent.”
    ii. if the state court is ambiguous or says, “Based on our reading of the state and fed C, this state action violates both constitutions,” this is not “independent,” so the Supreme Court may review the state court decision (Michigan v. Long)
ii.    NB: The distinction between Michigan and Martin is that the latter would have interfered w/ US treaty w/ Britain and therefore, under modern parlance, would not be “independent.”
B. Limits on Judicial Review
1.         Political Control
a. Methods
i.    Amendment: 4 times in history an amendment has successfully been proposed and ratified in response to Sup Ct decisions.
ii.     Appointment
iii.      Impeachment – “high crimes and misdemeanors”
b. Exceptions to and Regulation of Supreme Court Appellate Jurisdiction. (Ex Parte McCardle)
i. Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn’t expand the Supreme Court’s jurisdiction beyond Art. III s. 2. Ex parte McCardle] Congress has power to decide on lower courts, but they may not extend federal judicial power either.
Example 1: Congress could constitutionally eliminate diversity jurisdiction (i.e., suits between citizens of different states), because it can limit and restrict the court’s power.
Example 2: But Congress could not give the lower federal courts jurisdiction over cases between two citizens of the same state, because Congress can’t exceed the C scope of federal juridicary power.
ii. Cases & Controversies Specification Art III 2.1
Article III, Section 2 sets out the federal judicial power: (a) “federal question”; (b) cases of admiralty; (c) cases between two or more states; (d) complete diversity; and (e) cases between a state or its citizens and a foreign country or foreign citizen.
2. Justiciability Doctrines
JUSTICIABILITY concerns the limits upon legal issues over which a court can exercise its judicial authority. Is this court possessing the ability to provide adequate resolution this dispute?
Generally but not exclusively, there are factors to justiciability:
·         US will not grant advisory opinions.

ives: Where a class action lawsuit is brought, with one named plaintiff actually representing the interests of many others, the case will not become moot even if the named plaintiff ceases to belong to the class that is seeking a remedy.
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), which had held that a case was not moot when it presented an issue that was “capable of repetition, yet evading review”. Perhaps in response to increasing workloads at all levels of the judiciary, the recent trend in the Supreme Court and other U.S. courts has been to construe this exception rather narrowly.
DeFunis v. Odegaard, 416 U.S. 312 (1974). The plaintiff was a student who had been denied admission to law school, and had then been provisionally admitted during the pendancy of the case. Because the student was slated to graduate within a few months at the time the decision was rendered, and there was no action the law school could take to prevent that, the Court determined that a decision on its part would have no effect on the student’s rights. Therefore, the case was dismissed as moot.
Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000), the Supreme Court held that an industrial polluter, against whom various deterrent civil penalties were being pursued, could not claim that the case was moot, even though the polluter had ceased polluting and had closed the factory responsible for the pollution. The court noted that so long as the polluter still retained its license to operate such a factory, it could open similar operations elsewhere if not deterred by the penalties sought.
Roe v. Wade, 410 U.S. 113 (1973), which challenged a Texas law forbidding abortion in most circumstances. The state argued that the case was moot because plaintiff Roe was no longer pregnant by the time the case was heard. As Justice Blackmun wrote in the majority opinion: The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid.
Sosna v. Iowa, 419 U.S. 393 (1975), the plaintiff represented a class that was challenging an Iowa law that required persons to reside there for a year before seeking a divorce in Iowa’s courts. The Supreme Court held that, although the plaintiff successfully divorced in another state, her attorneys could continue to competently advance the interests of other members of the class.
ii. A moot case may not be decided (DeFunis), but there are exceptions . . .
Àwhen the issue is capable of repetition yet evades review. See So. Pac. Term. v. ICC.
Êe.g., Roe v. Wade (case not moot b/c pregnanacy had reached term, it was capable of repetition and review was elusive).
d.Political Question Doctrine. Courts will not decide cases where there is a “textually demonstrable commitment of the issue to a coordinate political department.”
i. Textual Commitment.
ÀC enumerates a textual commitment to another branch.
Ê       e.g.,