Kannar Federal Courts, Spring 2011
JUDICIAL REVIEW
A. General Considerations: Article III of the United States Constitution creates the federal judiciary and defines its powers. The language of the Article does five important things…
(1) Creates a Federal Judicial System: First, the initial words of Article III – “the judicial power of the United States shall be vested” – create a federal judicial system. Federal courts were desired to effectively implement the powers of the national government; there as fear that state courts might not fully enforce and implement federal policies, especially where there was conflict between state and federal law. At a minimum, a federal judiciary could help provide the uniform interpretation of the Constitution and federal laws; it could also protect individual liberties.
· How Do you structure any system: What are the ground rules? What are the bases for the rules? All this doctrine is made by the S.C. S.C. makes a lot of changes that nobody notices. S.C. can make a lot of changes & subject to further changes. In a system of flux, it’s important to know where they came from, where they are, & where they are going ➝ what the trends are, *whether there is something that you can do to protect yourself/your client (highly technical aspect).
· Nature of Justiciability
o Whether a matter is justicable (standing , mootness). Look at the history of it. History of division of fed. & state cts. Extent of which states enjoy immunity. Powers of Congress in defining fed. jurisdiction. Theme of judicial restraint.
o Felix Frankfurter (keep it out of politics) ➝ was silent during ct packing (FDR). Believed in independence, saw politicizing judiciary in a negative way. During 1930s & 1940s—tryoing to protect judiciary from itself (insulate institution from political attack).
(2) Creates Supreme Court and Permits Establishment of Lower Courts: Second, Article III vests the judicial power of the United States “in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish.” Congress established lower federal courts in its first judiciary act, and they have existed ever since.
(3) Insulates Federal Judges: Third, Article III assures the independence of the federal judiciary by according all federal judges life tenure “during good behavior,” and salaries that cannot be decreased during their time in office. This difference from state courts makes federal judges uniquely suited for the protection of constitutional rights.
(4) Cases and Controversies Defined: Fourth, Article III defines the federal judicial power in terms of nine categories of cases and controversies. These nine categories fall into two major types of provisions. One set of clauses authorizes the federal courts to vindicate and enforce the powers of the federal government. The other authorizes the federal courts to serve an interstate umpiring function, resolving disputes between states and their citizens.
(5) Allocates Authority Between Supreme Court and Lower Courts: Fifth, Article III allocates judicial power between the Supreme Court and the lower federal courts. Article III states that the Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court is granted appellate jurisdiction, both as to law and fact, subject to such exceptions and under such regulations as Congress shall make.
B. Judicial Review: Article III courts have the power of judicial review, which enables them to determine the constitutionality of acts of the other two branches of the federal government and of the states. However, this power is limited by the “case and controversy” requirement and by justiciability doctrines.
· Thomas Jefferson’s letter to the justices: questions about treaty w/France. John Jay writes back & says not w/in Court’s duties, job is not advisory. (Pg. 53—judiciary barred from giving advisory opinions (don’t give legal advice, only decide on cases that have already arisen).
· Steel Co. v. Citizens: can see temptation of lower cts of justicability. Scalia says fed. cts. must resolve questions of subject matter jurisdiction. Can’t give advisory opinions.
o Ct wouldn’t take case if the result would be the same if there was an adequate & independent state ground (ct imposed rule). If S.C. rendered an opinion, it would be an advisory opinion.
· Declaratory judgments: aren’t they on their face advisory opinions?
o Aetna Life v. Haworth: Ct is limited to an injunction or damages.
Marbury v. Madison (1803) (created judicial review for the federal courts): Marbury filed suit in the United States Supreme Court seeking a writ of mandamus to compel Madison, as secretary of state, to deliver his judicial commission. Marbury claimed that the Judiciary Act of 1789 authorized the Supreme Court to grant mandamus in a proceeding filed originally in the Supreme Court. However, Madison claimed that the Constitution specifically limited the Court’s original jurisdiction to specific areas. Held: The Supreme Court has the power, under the Supremacy Clause and Article III, § 2 of the Constitution, to review acts of Congress which are repugnant to the Constitution and find them constitutional. The Court ruled against Marbury and held that it could not hear the case as a matter of original jurisdiction. The Court held that although the Judiciary Act of 1789 authorized such jurisdiction, the statute was unconstitutional and hence void.
· Establishes where the jurisdiction of the S.C. lies. It was a case about judicial power. Where the cts fit in the tri-part system.
· Concept of political questions. Those that are political are not for the Ct to decide, they differ from legal questions. There will be cases/disputes that are not w/in Art. III power.
· Reaffirms separation of powers. Have an independent separation of powers. Derive power from Constitution.
· Appellate jurisdiction & what it means, he brings something over from the common law system.
o Discretion, Prudence, & Judicial Function-Marshall—Ct won’t take jurisdiction if it shouldn’t. Ques
ng books). Notion of S.C. justices taking on other assignments (ethical issues). Moral/ethical issue: when Kennedy was assassinated, Chief Justice Warren led the investigation.
1. Reasoning:
i) Separation of powers is maintained by keeping the courts out of the legislative process. The judicial role is limited to deciding actual disputes; it does not include giving advice to Congress or the President
ii) Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature
iii) Helps ensure that cases will be presented to the Court in terns of specific disputes, not as hypothetical legal questions (adverse parties will be more likely to present all the facts).
2. TEST: In order for a case to be justiciable and not be an advisory opinion, two criteria must be met…
i) First, there must be an ACTUAL DISPUTE between adverse litigants
a. Must be adverse, if Congress just says you can file to get things clarified, the parties aren’t in dispute yet. (Muskrat v. U.S.)
ii) AND There must be a SUBSTANTIAL LIKELIHOOD that a federal court DECISION in favor of a claimant will bring about some CHANGE or have SOME EFFECT.
a. Case where Court was asked to review Revolutionary War Vet benefits, but the Secretary could ignore the court’s recommendations, that’s an advisory opinion. (Hayburn’s Case)
3. State Courts May Offer Advisory Opinions about the constitutionality of pending legislation or on constitutional questions referred to them by other branches of government.
· These rulings can prevent unconstitutional laws and save legislature wasted effort
4. Declaratory Judgments Allowed: Congress adopted the Declaratory Judgment Act of 1934, authorizing a federal court to issue a declaratory judgment in a “case or controversy within its jurisdiction.”
i) Must still meet requirement for judicial review. (Must be actual dispute b/w adverse litigants & substantial likelihood that favorable decision will bring about some change.)
ii) Aetna Life Insurance Co. v. Haworth (1937): upheld the constitutionality of the DJA. “where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages.”
