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Constitutional Law I
University of Illinois School of Law
Moore, Michael S.

Con Law

Prof. Michael Moore (Spring 2014)

The Supreme Court’s Role in Constitutional Law

I. Judicial Review

A) What is Judicial Review?

1) Judicial review of Congressional enactments

a) Marbury v. Madison: does the Supreme Court have jurisdiction? (i.e. what can the Supreme Court decide?)

i) Is there a conflict between statute and Constitution?

· If yes à statute yields to Constitution

· Portion of Judiciary Act void b/c expanded Sup Ct’s original jurisdiction beyond limit of Constitution

ii) Court can review (overturn) laws passed w/ majority approval

2) Authority to Review State Court Judgments (and lower federal courts) (Martin v. Hunter’s Lessee)

a) Other courts must yield their interpretations to the Supreme Court

b) Judicial power extends to all cases arising under the constitution or a law of the United States, regardless of who the parties are

3) Judicial Exclusivity in Constitutional Interpretation (Cooper v. Aaron)

a) Don’t need to be party to suit for Sup Ct’s interpretation to be valid

b) Legislature can’t override (Sup Ct’s interp is final word)

B) Support For Judicial Review

1) Text: inference form Supremacy clause

a) Weaker inference from Article III (text doesn’t state power of judicial review)

2) Framer’s Intent: intended court to have power of judicial review

a) But, framers did not decide at that point (avoid decision that may prevent ratification)

3) *Written law axiomatically mandates that you have judicial review*

a) Law by its nature is binding on judges + the Constitution is law = it is by its own terms higher law

4) Protection of human rights: judges by nature of the office will tend to protect human rights better than legislature

a) Rights are agent-relative (categorical) = absolute

b) Courts look at individual litigants in individual cases, whereas legislatures by their nature deal w/ general issues

i) Rights trump reasoning – legis are inherently utilitarian whereas courts are not

c) Need umpire: someone to judge when output of democratic process step on minority rights

5) “Countermajoritarian Difficulty”: is judicial review undemocratic?

a) Sup Ct can unilaterally overrule majority

II. Jurisdiction-Stripping by Congress

A) Congressional Controls on the Supreme Court

1) Art V Amendment (only used 4x – good, low rate)

2) Impeachment of Justices: standard is very hard to meet (basically non-existent

3) Court-packing (FDR proposed to add younger justices to serve along w/ current justices): independent of judiciary can’t be maintained if allowed

4) Court calendar: limited ability to hassle court

5) Judicial selection: Pres hopes to be able to predict what they are getting

a) Change in confirmation process

6) Exceptions clause: McCardle seems to say Court has jurisdiction subject to exceptions Congress makes

a) Sounds like unlimited ability to limit Sup Ct’s jurisdiction

b) Really, Congress has some ability but infrequently used b/c Court will likely invalidate any extreme limitation on jurisdiction

7) Marbury: judicial branch’s power can’t be enhanced or minimized by Congress

B) External Limits

1) Limits derived from other Constitutional provisions

2) Congress could not limit Court’s jurisdiction to hear cases of free


o Can’t cause condition of imminence

o Can’t claim injury of expense already incurred

· Concrete and particular (to this particular person)

– EXCEPT if there is identity of interest

o on behalf of citizens (agency), or

o as a landowner, or

o in sovereign capacity as a lawmaker

o Mass v. EPA: satisfied if there is an injury particular to P (even if other people are injured just as P is)

– Ideological interest in NOT concrete and particular

– Where concrete but widely shared, Court has found injury in fact

b) Causation (of the injury by D’s challenged action)

i) Injury must be “fairly traceable” to D’s action

· Thus, there must be an action

– Clapper: even if show imminence, can only speculate that govt will issue that specific statute to do so

o Even if injury was cost incurred: still no causation

ii) Injury cannot be the result of independent action of a 3rd party not before the court (i.e. connection of causal chain can’t be too tenuous)

· Lujan: agency à … à small portion of funding à projections of other govts à contribute to loss of only portion of species

· Allen v. Wright: causal chain too tenuous between IRS giving tax exemptions and injury (continuation of segregated school)

· Contrast w/ Mass v. EPA: not chain of causation but multiple insufficient causes (co-causes)