NATURE AND SOURCES OF SC’S AUTHORITY
Judicial Review
A. Article III created the Federal Judicial System.
1. Supreme Ct. the superior ct. and Congress given the power to create inferior courts.
a. however, C does not give SC the power of judicial review
2. But federal courts have limited jurisdiction.
a. SC’s jurisdiction is divided into appellate and original,
i. gives circumstances in which SC has original jurisdiction, and
ii. all other cases it has appellate jurisdiction, subject to Congress’ exceptions
b. Limits on judicial power:
i. Limits on appellate jurisdiction shall be subject to exceptions (limits) imposed on Congress from time to time, curtailing and regulating the power of the SC (checks and balances)
ii. constitution’s division of jurisdiction into appellate and original, which shouldn’t run together
iii. Some other limits: standing, ripeness, mootness, and the political question doctrine.
B. Marbury v. Madison
1. Facts- Marbury’s commission not delivered and Jefferson told his secretary of state James Madison not to deliver it. Marbury brought suit in Supreme Court seeking a writ of mandamus to compel Madison to deliver the commission.
2. Holding- Marshall ruled that Supreme Ct. doesn’t have original jurisdiction to hear this case. Even though allowed in Judiciary Act of 1789, but that act unconstitutional because original power of the court restricted to those instances listed in the Constitution.
3. Three main questions:
a. Does Marbury have the right to commission?
i. All proper procedures followed and the seal of U.S. placed on the commission. So Π has right to commission.
b. If yes, do the laws of this country afford him a remedy?
i. Marshall said that even the President is not above the law. There are some matters that are left to the political process. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual has a right to look at the laws to afford him a remedy.
c. If yes, can the Supreme Court issue this remedy?
i. Ct. has no right to review questions that are strictly political in nature (e.g. President’s decision to veto a bill). But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide remedy including a mandamus.
4. Jurisdiction question:
a. Judiciary Act of 1789 gave Supreme Court the original jurisdiction in such cases
i. However, mandamuses were not in laundry list of orig. jur. in C
b. However, Marshall ruled that Under Art. III, Congress can’t add to the Court’s original jurisdiction –
i. this statute gave SC power it did not receive from the C
ii. According to the constitution, Congress can only expand appellate JD but not original JD because the constitution clearly enumerates what the boundaries are.
iii. Marshall viewed this as an impermissible expansion of SC’s power
c. Thus, according to Marshall, the SC doesn’t have to follow a law that is unconstitutional
5. Justifications for Judicial Review
a. necessary to invalidate certain laws passed by the legislature that conflict with the constitution
b. We are populous sovereignty and not legislative sovereignty
c. Constitution imposes limits on government and these limits useless if not judicial enforcement.
i. What is the point of limits in the constitution if the parties that are to be limited override what the constitution says the powers are
d. “It is emphatically the province and duty of the judicial department to say what the law is.” Judicial review is inherent to the body of the judiciary (Structural Argument)
e. Judges takes oath to uphold the constitution. But same oath taken by the President, senators, etc.
f. Art VI makes Constitution the supreme law of the land.
i. C is the guarantee of a limited gov’t
6. Marshall distinguishes b/w political acts and legal acts
a. needed to examine if there is any exemption that any violation of a right which could be remedied
b. Political acts are those done by the conscience of the president and not performed because individual rights are concerned, like can sue the EPA.
7. Importance of Marbury:
a. The SC has exclusive competence to interpret the constitution.
b. The SC will declare void any law repugnant (in confict, Inconsistent) to the Constitution and refuse to enforce it..
c. The SC is one of three branches of government with the same legitimacy as the others.
d. A written Constitution implies a guarantee of limited government.
e. the constitution is the Supreme Law of the Land.
C. Judicial Review After Marbury
1. Cooper v. Aaron – vertical power
a. SC decisions regarding the constitutionality of law were binding on the parties litigating the case, and also were the supreme law of the land
i. This makes SC’s interpretation of the C the supreme law of the land, rather than the C itself
ii. broadened Marbury –
A) distinction between content and process of the constitution:
(1) The constitution is the law of the land (content of the C) and
(2) the constitution is the sort of law that the court can interpret and apply to certain cases under article III powers (process is the process by which the content is interpreted)
B) collapses the distinction b/w the content and process under the C, making the content of the C the same was what the SC says it is in its interpretations
iii. for cases of vertical conflict, interpretations of the C by the SC is binding on all states
2. Dickerson v. US – horizontal power
a. the history, structure, and politics surrounding the C gives the power of interpretation to the SC
b. SC says a constitutional interpretation (i.e. Miranda) by the court may not be overruled by Congress through the enactment of a statute.
c. However, the legislature can change by statute non-constitutional SC decisions (evidentiary rules, procedure rules, etc.)
3. Combining Cooper and Dickerson, neither Congress, nor any state, can override a SC decision on an issue of constitutional law.
D. Amendments to the C
1. If you amend the C, it governs the SC, and the old interpretation will be overturned
2. Methods of amending
a. Congress, by 2/3 vote, may propose amendments for ratification by ¾ of states, or
b. 2/3 of the states may apply to congress for the calling of a C convention
II. Constitutional and Prudential Limits on Constitutional Adjudication
A. In some cases, judges will decline to rule in certain cases.
1. Nonjusticiable question –
a. court will not examine on the merits.
b. It will hear the arguments, but can’t decide.
B. Limits of judicial power and modern view of nonjusticiability, which fall into 3 main categories for analytical purposes:
1. textual and structural limits (within the C)–
a. is the exercise of judicial power limited by the text of the C, or the structure? (this is the binding and mandatory category)
b. structure –
i. finding inferences within the C, i.e. judicial review (Marshall’s argument was largely structural).
ii. The structure is derived from the text. The fact that each branch has a separate article suggests a separation of power
iii. structural limit is just as constitutional as one imposed by the text.
c. textual and structural limits are not waivable by the court – court can’t reach beyond the limits stated in the C
d. Ex. Colegrove v Green – SC didn’t have the power to meddle with districting, because it is expressly limited to the Congress
2. prudential category –
a. other end of the spectrum from textual limit
b. limits not derived from C
c. areas which are irksome and delicate, and which the court shouldn’t intermeddle in the exercise of power w/I the other branch (by the SC’s own self-restraint)
d. these limits can be waived by themselves – if the court makes it limits, it can unmake them
3. where the court says there is a lack of judicially discoverable criteria (a middle ground b/w textual and prudential, touching both ends of the spectrum)
C. Political Question Doctrine
1. Under this doctrine,
a. Certain matters are really political in nature and best resolved by political means rather than judicial review
b. where there can be found constitutional violation, the ct. just dismisses the case and leaves it up to the other branches to fix the problem
2. Primarily a function of separation of powers
a. only used where there is a horizontal conflict b/w the branches. Don’t use for vertical conflicts b/w fed. gov’t and state
gov’t.
b. C derives its power from the people, not from the legislatures of the states
c. comes up in the context of the taxation of the bank
3. Structural argument
a. what we have is a C, which is meant to last, meant to be adaptable.
b. since it is meant to be adaptable, we should not interpret it in the same way as a penal code
c. we won’t demand that something such as chartering a national bank be included before we conclude that it is not within the C
d. 10th amendment deleted the word “expressly”, meaning that there was meant to be powers not specifically listed. Marshall is leading up to “implied powers”
i. what sort of power is implied?
A) power needed to achieve that of the enumerated powers
B) congress has power to choose proper means to carry out the powers directly granted to it by the C
4. Textual argument
a. comes in “necessary and proper” clause.
b. MD says the power has to be necessary to achieve the objective, so the bank has to be necessary and essential to carry into execution the enumerated powers of congress
c. Marshall says that necessary doesn’t necessarily mean necessary
i. why add the word “proper”?
ii. “necessary” means more like “conducive to”,
iii. “necessary and proper” clause is placed in the section conferring powers granted to Congress in Art. I. It is not place in section 9, which deals with the limits of congressional power.
d. compare how words in one section are used in different sections
e. considerations:
5. Prudential argument –
a. look at C and interpret it in ways that bring about good things and suppress bad things
b. it is hard to make a C argument w/o slipping in some prudential arguments
c. i.e. Bank of US is good for the contry
6. Doctrinal approach
a. rely on what prior cases have said about what the C means
b. THIS TYPE OF ARGUMENT PREDOMINATES
7. Ethical/Moral/”Natural Law”/”political theory”
a. we may borrow from these areas of law to impart meaning particularly on vague parts of the C
b. won’t see much in modern times
F. Advisory Opinions, Standing, Mootness, and Ripeness
1. Rule against Advisory Opinions
a. Opinions which give advice about a particular legislative or executive action when no party is before the court who has suffered or imminently faces specific injury
b. If there are two ways to interpret a statute, one way that might raise a C question and one that isn’t, the statute will be interpreted in a way that doesn’t implicate the C, b/c court doesn’t want to interpret if it doesn’t want to
c. Policy behind case or controversy requirement
i. Need for focused controversy – The need for the judiciary to decide only focused, specific conflicts in which adversaries explore every aspect of the situation
ii. Finality – Don’t want decisions to be subject to modification by executive or legislative branch
iii. Strict Necessity – The court is unwilling to adjudicate constitutional issues unless such rulings are unavoidable
2. Standing
a. Does the party have a significant stake in the controversy to merit his being the one to litigate it. The focus is on the party asserting the claim. (while what sorts of claims can the courts hear is related to Marbury)
b. Multiple claims for relief – Where a P asserts multiple claims, a separate analysis of standing must be done as to each of these claims
c. two species of standing
