CONSTITUTIONAL LAW
FALL 2013
PROFESSOR ABRAMS
Judicial Review
· Marbury v. Madison
o Marbury sued Sec. of State Madison to obtain his commission as justice of the peace
o Began suit in the Supreme Court rather than in state or lower federal court, relied on § 13 of Judiciary Act of 1789 which gave S. Ct. power to:
§ “Power to issue…writs of mandamus…to any…persons holding office, under the authority of the United States”
o Wasn’t clear that S. Ct had original jurisdiction since the quoted language for writs of mandamus stated, “The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states…”
o Holding
§ §13 does authorize S. Ct. to take original jurisdiction BUT S. Ct. is unconstitutional
§ Why §13 of Judiciary Act is unconstitutional
· Article III. §2 of Constitution – Defines types of cases fed. Courts may hear
· Article III, §2, cl. 2 limits S. Ct. ORIGINAL jurisdiction to cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party…”
· All other cases w/in fed. judicial may be heard by S. Ct. ONLY in its appellate capacity.
· Aftermath of Marbury v. Madison
o Marbury announced judicial review by S. Ct. of cases arising from federal lower courts
o For 50 years S. Ct. didn’t strike down any other federal statutes
· Judicial Review Today
o The Constitution and fed laws and treaties are the supreme law of the land (Supremacy Clause)
o Courts may interpret the Constitution (and executive and legislative acts) in cases before them.
o The judicial interpretations is final and controlling for all purposes, and not just in the pending case
o The political branches may overrule the Court’s constitutional decision by constitutional amendment – and a statutory decision by statutory amendment
Congressional Power over Jurisdiction of Lower Federal Courts
· Jurisdiction Removal “J-Stripping” Bills
o Most of the time these bills are done in response to hot-button political issues
§ Ex. “Pledge Protection Act” (2005) – never enacted
· “No court created by act of congress shall have any jurisdiction, and the Supreme Court shall have no appellate juris., to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance . . . or its recitation.”
· Tried to make a constitutional amendment to protect pledge
o Most J-Stripping Bills Fail
§ Doubts as to constitutionality (see below)
§ Passions fade & cooler heads prevail
§ Status quo – concerns about “freezing the law”
· Today’s majority might be tomorrow’s minority
· Constitutionality vs. Unconstitutional of J-Stripping
o Supreme Court’s ORIGINAL Jurisdiction
§ Congress may grant lower federal courts & state courts concurrent jurisdiction over matters otherwise within S. Ct’s original jurisdiction
§ Beyond this, the power of Congress over S. Ct.’s original jurisdiction is limited to the regulation of procedural matters that DO NO impinge upon the jurisdiction authority of the court
o Supreme Court’s Appellate Jurisdiction
§ Exceptions Clause grants Congress plenary power to withdraw subject matters from S. Ct’s APPELLATE jurisdiction
§ Mandatory Interpretation view – Congress may not use its exceptions power to eliminate the S. Ct’s appellate jurisdiction over cases arising under Constitution unless Congress vests jurisdiction in an inferior federal court created pursuant to Article III.
o J-Stripping from Lower Courts
§ Article III gives Congress the power to create the lower courts and inferentially, the power to control its jurisdiction
· Since lower cts are creations of Congress then Congress should have ability to control or withdraw power from them
o Article III only gives Congress ability to withdraw jurisdiction of S. Ct WITHIN CONSTITUTIONAL BOUNDS
§ Example – Can’t withdraw jurisdiction from S. Ct. when female is a party – violates Equal Protection Clause
· Ex Parte McCardle
o Civilian newspaper publisher & strong confederacy supporter arrested by military authorities after war
o Petitioned S. Ct. for Writ of Habeas Corpus – right is guaranteed in Art. I § 9
§ “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of rebellion or Invasion the public safety may require it”
§ Judiciary Act of 1789 – applied to “only persons held in federal custody”
§ Judiciary Act of 1867 – applied to “persons held in federal OR state custody”
o While case was pending, Congress REPEALED 1867 act & withdrew Congress’ jurisdiction to hear Habeas cases under the 1867 Act
o Congress did this just so S. Ct. couldn’t hear McCardle case
o S. Ct. Holding – NO JURISDICTION TO HEAR MCCARDLE’S CASE
§ Congress can withdraw jurisdiction from S.Ct. – the repeal of the Reconstruction Act was constitutional
o The McCardle case is the only example of a result-oriented restriction on the Supreme Court’s appellate jurisdiction by the Supreme Court
o McCardle lends strong support to the traditional or plenary power interpretation of the Exceptions Clause – ability of Congress to divest S. Ct’s appellate jurisdiction
o Taking McCardle at face value, if Congress wishes to prvent S. Ct. from hearing cases involving any particular topic it can do so by excluding such cases from Court’s appellate jurisdiction – so long as doing so is within bounds of Constitution
· Limits to Congress’ Control over Court’s Jurisdiction
o U.S. v. Klein
§ During Civil war Congress passed statutes that allowed govn’t to confiscate property used in “promoting the insurrection”
§ Property was allowed to be returned upon proof that the owner had “never given any aid or comfort to the present rebellion”
§ Guy gave aid to Confederacy & had property taken BUT he was given a presidential pardon
§ Filed suit in federal court seeking return of property, lower Fed. court ordered property returned
· Prior case – S. Ct. had held that pardon relieves party of the consequences of any offense that may have been committed
· Gov. appealed lower Fed. court decision
§ While appeal pending, Congress enacts law making evidence of pardon inadmissible in cases seeking return of confiscated property & divested S. Ct. of jurisdiction over any case where proof of pardon had been submitted
§ S. Ct. holds not a valid exercise of Exceptions Power
· Congress was using its exceptions power to manipulate the result of a pending case
· This impinged on role of judicial branch thus violating separation of powers prescribed by Constitution
§ Rule from Klein
· Congress must exercise its power to limit jurisdiction in a manner consistent with Constitution
· Congress can’t do away with a constitutionally granted power of the Presidential office
Jurisdiction of Federal Courts in Constitutional Cases
· Supreme Court Review of State Decisions
o Martin v. Hunter’s Lessee
§ Ejectment action
§ Descendant claim – under treaty b/twn US & Great Britain title remained w/Fairfax & heirs
§ Fairfax descendant’s claim was rejected in state court & he appealed to U.S. S. Ct. under §25 of Judiciary Act
· §25 allowed appeals in cases where state ct. had rejected claim made under Constitution, laws, or treaties of US
§ S. Ct. reversed VA Court of Appeals
§ VA court “declined” to comply with S. Ct. ruling saying §25 is unconstitutional
have the rule
o Waste of finite judicial resources
§ It takes up valuable judicial time to render an opinion that isn’t binding
o Court reach proper decision most often when there are adversarial parties with real consequences at stake
o An advisory opinion might not be binding on future parties
o Undermines our adversarial system
o If court waits for case, and doesn’t advise on constitutional grounds, court may be able to decide on narrower grounds
o Implicates the separation of powers doctrine
§ If they make advisory opinions they are essentially making laws for others to follow in future, that violates what the judicial branch is prescribed to do.
§ Courts should apply the rule using pre-existing standard
· History
o Jefferson asked Supreme Court to give opinion on a treaty & S.C. said no
· Basis for Ban on Advisory Opinions
o Art. III
§ No case or controversy
§ Separation of powers
§ Advisory opinions are not a judicial act
o Prudential
§ Avoid interfering with legislature and/or executive branch unless litigation raises an actual dispute
§ Conserve judicial resources
§ Judicial restraint
§ Efficient & effective decision making
· State courts and advisory opinion
o A state or fed court can ask state supreme court of another state for advisory opinion on state issue
o Allows the state SC whose law is being applied the chance to interpret instead of the court in another state where case is being tried
o Missouri has statute allowing SC to give advisory opinion to courts on Missouri state issues
Standing
· If P doesn’t have standing you CANNOT bring suit & court CANNOT hear case – absence of standing is jurisdictional & the court must dismiss claim
· Two Types of Standing
o Constitutional (Article III + Prudential Considerations)
o Statutory
o MUST HAVE BOTH
Constitutional Standing
Article III Requirement
o Injury-In-Fact
§ P must establish that he or she has suffered a perceptible and recognized harm
§ The invasion of any right recognized under the Constitution, statutes, or the common law is sufficient – but not necessary – to establish injury-in-fact.
§ Any type of perceptible harm to the individual will suffice so long as a court does not believe the interest invaded is too abstract to satisfy case or controversy
§ Basic principle – when interest or harm is either too conceptually or factually too abstract or speculative it will not trigger the Article III court’s authority to adjudicate
· Lujan v. Defenders of Wildlife – rejected “animal nexus” – the supposed harm a person interested in an endangered species would experience from gov. action threatening the species chances for survival.
§ Threatened injuries must be imminent
§ Injury DOES NOT have to be economic – can be something requiring injunctive relief
§ First amendment cases just being kept from exercising constitutional right can be injury
