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Federal Courts and Jurisdiction
University of San Diego School of Law
Mackay, Aimee Grace



Marbury v. Madison (U.S. 1803)

– rule #1: no right without a remedy
– a federal court is fundamentally a forum for those who have suffered legal injury
o corollaries:
§ judiciary can order process against executive officials (where executive’s obligation is not discretionary, i.e. political question)
§ judiciary has power to interpret Constitution – Marshall compellingly asks what is a federal judge to do if this isn’t the case?
– treated case as one of original jurisdiction
o refuses to find Congress could move some of court’s appellate juris. to original
o alternatively could maybe have been appellate (appeal from executive’s decision)
– hard questions:
o was there a Congressional statute giving jurisdiction here?
§ not clear based on Section 13 of Judiciary Act of 1789
§ could argue that Article III grants automatic judicial power to SUPCT
o did SUPCT need jurisdiction to hear the case?

Two Alternative Visions of Judicial Review

– classical model (injury model) – courts exist to remedy rights
o adjunct to this power, courts can exercise judicial review
o converse is that courts don’t issue advisory opinions
o but this doesn’t really apply to facts of Marbury
§ decision wasn’t perhaps even necessary
§ would have therefore been advisory opinion on two points:
· acts of legislature and executive are subject to judicial review
· SUPCT gets to say what Constitution means
– lawsaying model – courts get to say what Constitution means
o fundamental role of courts is as check on other branches of gov’t
o still retains requirement that there be an injury to raise the case (though courts “cheat” on this)
o how far does this power go?
§ Cooper v. Aaron [case in which Southern governor ordered the troops after SUPCT issued a civil rights case] – can the governor do this?
· no – he governs a state and states don’t have power to interpret Constitution
· yes – court’s ruling isn’t in the Constitution but is merely it’s interpretation; also governor wasn’t party to any actual case
o if other branches can’t challenge a SUPCT rule in such cases, the law would never change!
· Court ruled that once it speaks to meaning of Constitution that officials should fall into compliance, regardless of their views
§ Bowling v. Sharpe [Congress issues statute saying D.C. schools to remain segregated after Brown v. Board] – can it do this?
· are questions same as in Cooper? Is there distinction between legislative function and executive acting in enforcement?
o so what then constrains the judiciary?
§ political will


Correspondence between Justices

– reasons to shun advisory opinions:
o existence of concreteness/factual context
o adversarialness
o want to avoid being boxed in by hypothetical facts
o necessity


Clear Statement Rule

– Court uses this to decline to issue Constitutional decision absent “clear statement” evidencing Congressional intent to act a certain way
o e.g. Webster v. Doe[CIA fired Doe for being gay; SUPCT finds federal court can hear Constitutional question b/c otherwise raises “serious Const. question”] § Scalia dissent argues Congress could strip jurisdiction over this; his view is flawed because nobody has authority to violate the Constitution!
– for enumeration of avoidance canons, see p.86
– acts as a signal to the other branches cutting the distance between judicial review and putting an effective check on them
o saying the Court can review, but will back off to see what happens
– what may also be going on sometimes is court recognizing it cannot act without support
o if Court had ruled otherwise in Webster, would CIA have changed behavior?
o if Marshall issued the writ in Marbury, would anything have happened?
o Little Rock ended when the Executive Branch nationalized the guard…



Concurrent vs. Exclusive Jurisdiction

– Tafflin v. Levitt (U.S. 1990) – unless Congress expressly provides for exclusive federal jurisdiction, presumption is that state/federal courts have concurrent jurisdiction over federal law claims
o three exceptions to this general rule:
§ explicit statement in the statute (which arguably there was in Tafflin)
§ implication from legislative history (also arguably present in Tafflin)
§ incompatibility – i.e., conflict between federal/state aims that should prevent concurrent jurisdiction
· this leaves Court some room for itself to maneuver
o why else does this prong exist? if there is incompatibility, we’d expect Congress to act
· some factors/interests weighing on this analysis:


– after Erie, there is no federal common law
o instead, state common law governs substantive state legal issues when heard in federal court sitting in diversity
– bases for decision:
o Rules of Decision Act – should apply to common law as well as statutes (statutory interpretation argument)
o application of Swift was causing inequity/discrimination through forum shopping
o federal law can only come from statute or the Constitution
§ Congress has no authority to grant federal courts ability to create common law
· note that there are some narrow areas in which there is federal common law, circumscribed by necessity



Jurisdiction [Four Rules]

– Rule #1: Martin v. Hunter’s Lessee – SUPCT can review decisions of highest state courts
o motivations:
§ support supremacyof federal law
§ promote uniformityof federal law
§ concern over potential biasesof state court
o support for decision:
§ everyone at Const. Convention knew this is how it would work
§ Art. III says SUPCT has jurisdiction over all cases
§ removal isn’t a response to this because:
· appeal is really just a form of removal taking place after decision but before finality
o problem w/ this thinking is it allows parties to test waters in state’s high court and appeal if they don’t like result
· then crim. defendants wouldn’t have fed. review of Const. rights
– Rule #2: Murdock v. City of Memphis – when reviewing such decisions, SUPCT will only hear federal questions
o holding otherwise would have completely altered federalism balance
§ Court unwilling to do this absent clear Congressional intent
o this is consistent with Erie which found it a non-sequitur for SUPCT to decide a state law question
§ alternative position in Murdock would raise serious questions, i.e., what does it mean for SUPCT to decide/review state law questions?