DORE_CONLAW1_SPRING_2011
I. The Judicial Function: The Nature & Sources of the Supreme Ct’s Authority
A. Judicial Review in Marbury
i. Constitution:
1. “Well-established principles”
a. Theory of Popular Sovereignty—ORIGINAL RIGHT of the ppl to manifest SUPREME WILL in the creation of gov’t; The ppl chose a limited gov’t by choosing a WRITTEN constitution.
b. Since Const. is Written—Constitution is Superior law, paramount law, law unchangeable by ordinary means!
i. Any legislation repugnant to it is void
c. The Constitution is SUPREME for each branch of gov’t—trumps SC, legislature (and exec)
ii. Judiciary Review
1. Reviewing the constitutionality of legislation is “the very essence of judicial duty”…INTERPRETATION of the law
2. Judiciary power—comes from Const—supremacy clause
3. The issue of a vested legal right of another that is reviewable –not an unreviewable political question
B. Judicial Review of States
i. SC has Appellate Jurisdiction over State Ct rulings on Fed Qs—Martin v. Hunter’s Lessee;
1. Supremacy Clause (IV);
2. Art III (Jurisdiction of “all cases or controversies”)—
a. whether OJ or AJ- jurisdiction based on case, not crt (Martin)
b. since “all cases”: SC has AJ even when state is a party (Cohens v. VA)
c. framers intended overlapping btw state & fed cts for fed cases (Martin)
ii. Uniform interpretation of Constitution: Fed judges have priority over states in constitutional interpretation bc “jarring and discordant judgments” must be avoided; uniformity required to preserve supremacy over all the land—Martin v. Hunter’s Lessee;
C. Judicial Exclusivity (SC v. Fed)
i. Marbury’s Legacy: Narrow or Broad?
1. Narrow: constitution is the Supreme law of the land
a. “courts, as well as other dept, are bound by that instrument”
b. constitutional interpretation binds only the parties in Q & not the other parties
c. assumption that there is an actual objective meaning to the Constitution
2. Broad: courts alone have the power to interpret the law & the constitution
a. “it is emphatically the province and duty of the judicial dept to say what the law is”
b. Cooper v Aaron:
i. relies on the Supremacy clause (IV) says that it emphasizes the judicial role as EXCLUSIVE interpreter of the constitution.
ii. SC interpretation of 14th amendment is law binding on all states
ii. What is authoritativeness of SC decisions? (SC v. Congress/Executive/Democracy)
1. Issue of whether Cooper v. Aaron gave SC binding power beyond parties.
2. SC v. Congress—per Art V, Congress can amend constitution to overturn court’s interpretation by amending the constitution itself.
a. Dickerson: “Congress may not legislatively supersede our decisions interpreting and applying the constitution”
i. Statutorily Congress could supersede only judicially-created rules of evidence and procedure
3. SC v. Executive—different opinions of presidents-no cases
4. SC v. Democracy
iii. What are the political restraints on SC?
1. Judicial selection—nomination and confirmation (II-2) president can nominate based on ideology…can Senate reject based on ideology (or only bc of defects in characters, competency)?
2. Impeachment
a. life term subject to “good behavior” (III, 1)
b. impeachment for “treason, bribery, or other high crimes and misdemeanors” (II, 4)
3. Court-Packing (III,2)—Congress sets ct size, budget, and time when ct meets
4. Court-Stripping (III,2)—
a. Congress can create exceptions to ct’s AJ: “with such exceptions and under such regulatios as (Cons?) Congress shall make”
i. Indicative of framers’ desire to give congress some power over cts
ii. See McCardle, case tried while Congress was passing act that SC has no AJ under habeus corpus appeals
b. INTERNAL constitutional limitations on Congress’s ability to limit ct AJ:
i. Illegal for congress to make limit that would nullify judicial power contemplated by const, eg-a statute depriving AJ in almost all cases (since most of ct jurisdiction is AJ in reality)
c. EXTERNAL constitutional limitations on Congress’s ct stripping power:
i. Bill of Rights—congress can’t make a law that limits cts’ jurisdiction in Bill of Rights issues, since Bill of Rights constitutionally contemplated
ii. EXTERNAL to Art III, but limits congressional power contemplated by Art III
5. Constitutional Amendment, V
a. Rarely used, most amendments passed via Bill of Rights
b. need 2/3 congressional vote w/ ¾ ratification OR
c. 2/3 state vote to have constitutional convention
D. Constitutional and Prudential Limits on Judicial Branch
i. Art. III, Section 2: “judicial power shall extend” to a list of enumerated “cases” and “controversies”
1. Per Martin, the CASE and not the CONSTITUTION, gives jurisdiction
2. Controversy
a. Must be concrete and non-hypothetical (not merely advisory)
b. Must involve parties claiming actual injury (based in law of standing) w/ both constitutional and prudential elements
c. Must be timely, ie not premature (before injury or where injury merely imminent)
d. Must not be committed to unreviewable jurisdiction of another branch (political v. legal distinction)
ii. How case becomes justiciableà
1. “justiciability”—refers to claimant’s access to court:
a. determined by standing
b. political Q
c. mootness and ripeness
iii. 1—no advisory opinions
1. ct won’t advise/speculate
2. eg-1793, Washington asks ct’s opinion during Anglo-French war, ct declined
vi. 4—Political questions
1. (anticipated in Marbury—something is political when the constitution confers a power upon a branch to be exercised by that sole branch’s discretion)
2. 2 strands of political qs:
a. matters committed to unreviewable discretion of political branches—based on constitutional interpretation and power (Txtual)
b. otherwise legal questions that should be left to other branches as a matter of prudence (Prudential)
i. compare to Back Door in Standing
vii. 5—Distinguishing Legal from Political Qs
1. The political Q is one of separation of powers HORIZONTALLY between the branches of fed gov NOT a Q between fed and state (vertical)—Baker v. Carr
a. If Q of separation of powers—prob political where C expressly gives powers to specific branch—Baker v. Carr
i. (consider Lujan where congress overstepped exec)
b. Political Right ≠ Political Q… assess political right issue on case by case basis—Baker v. Carr
i. (reiteration of Martin—jurisdiction by case, not court)
c. See Political Q factors
2. In context of Congressional Qualifications:
a. The Q of what constitutes congressional qualifications IS justiciable, but questions of whether member has satisfied those qualifications is NOT justiciable (given by constitution to CONGRESS—a “textually demonstrable commitment”)—Powell v. McCormack
3. In context of President and Foreign relations:
a. Pres authority to unilaterally terminate a treaty (when Const gives Senate participation in making a treaty)—non-justiciable bc 1) involves pres authority and foreign relations (art II)…a textual arg & 2)dispute b/w co-equal branches (exec and leg) …a prudential arg—Goldwater v. Carter
4. In context of Impeachment Proceedings
a. Const gives House sole power of impeachment but Senate whole power to TRY impeachment
b. Challenge based on fact that it was not the WHOLE senate—nonjusticiable; “try” isn’t a limit on Senate authority and Senate can choose way it “tries” internally—Nixon v. US
c. See long outline for more detail on the text & prudent args
5. In the context of reapportionment (dilution of votes)
a. Is justiciable: No political Q factors present; Not a guarantee clause issue; An issue of “the consistency of state action w/ the fed constitution”; political CASE (under 14th amt) not political Q (of guarantee clause)—Baker v. Carr
b. Baker dissent—says there is a demonstrably textual commitmnt to CONGRESS of this power (guarantee of rep gov)
