I. Judicial Review
a. Marbury v. Madison (1803) – USSC is empowered to review acts of congress and void those which it finds repugnant to constitution. Judiciary act’s grant of OJ for mandamus actions is void
i. Note: USSC didn’t find another act unconst until Dred Scott, 50 years later
ii. Countermajoritarian difficulty
b. McCullough v. Maryland (1819) – Though congress doesn’t have express power to incorporate a bank, it has implied power.
i. Means chosen must be rationally related, not necessary?
ii. Issue #1 – Does congress have the power to incorporate a bank?
iii. Marshall’s arguments
1. Historical Practice – we’ve been doing it this way since beginning
2. Reliance (policy) – people have invested money in reliance on this structure
3. Original intent – this is something the 1st congress did, significant overlap between 1st congress and framers
4. Const and theoretical – who the authors should be understood to be, the people not the states
5. Textual argument – omission of “expressly” when it was included in AoC, NP clause located in list of powers not limitations
6. Purpose (policy) – must assume drafters meant for const to succeed, not fail
7. Structural – Deferential JR: Marshall adopts this (see Thayer) even though he stated in Marbury that there was no middle ground. Matters of discretion should be deferred to legislature, even if court thinks leg is wrong about interpretation of constitution. If the people think its really wrong, then they can change the rules at the ballot box. Only intervene when political process breaking down in some way, i.e., when those whose rights are being threatened lack sufficient numbers to further their interests at the ballot box (not sure). Here, a reasonable leg could have thought this was a means toward that legit end, that the M and T overlap
iv. Issue #2 – Can a state impose a tax on such a bank?
a. States may not impose tax exclusive to non-citizens.
i. Ex: NY out-of-state commuter tax held unconstitutional. NJ Res can’t vote on it. Would be ok if it taxed NY residents too, since there’s be virtual representation of out-of-state people
ii. Exception – Hotel tax, for example, only taxes out-of-state people, but hotel lobby provides virtual representation
c. Calder v. Bull (1798) – will, ex post facto
i. Natural law – Laws don’t have to be just to be laws.
1. Whether a law is a law is not relevant to whether it’s constitutional
ii. legal Positivism – a law is a law if an authorized agency issues it. Question of whether it’s just is a separate question
1. Has to pass 2 tests.
iii. Ex: law that said the north has to return escaped slaves
1. Some judges said they didn’t believe in the law. It was unjust. (positivists?)
2. Some judges said it’s not our job to determine what’s just. Our job is to keep the union together (natural?)
iv. Prof: in some ways, they were both right. Pro-life and anti-death penalty issues raise same kind of problem.
II. Federal Supremacy
a. Martin v. Hunter’s lessee (1816) – USSC has appellate JD over the highest state courts on issues involving federal constitution, laws and treaties
i. Provided for by Judiciary act § 25?
b. McCullough v. Maryland (1819) –
III. Political Constraints on the Court
a. Exceptions of power
i. Prof said odds this will be on exam are almost nil
b. Article 3 Constraints
i. See Cheh audio, P 20 of notes
c. Congressional control of jx
i. Ex Parte McCardle (1868) – Exceptions power. P arrested during civil war. Congress afraid SC will find it’s laws unconstitutional, so they repeal it’s appellate jx
1. Issue: what is the extent of congressional power over SC’s jx?
2. Reasoning (Unanimous): Court seems to be saying that the congress has plenary power, but then in very next paragraph it seems to take back 1/3 of what it just gave. Something about jx previously exercised (before the first statute granted jx).
3. Prof: Broad and narrow holding. Broad is cong has plenary power, narrow is something about when there is 2 or 3 ways to get to SC and cong removes one, all that does is ??? an it doesn’t raise any issues of const law.
IV. Self-imposed Constraints
a. Justiciability doctrines
i. Advisory Opinions – Court doesn’t issue advisory opinions. Must be actual dispute. If just policy dispute, you go to legislature, not the courts. Reasons: court wouldn’t be impartial if case actually came bef
i. Note: this is the nexus b/w the D’s actions and P’s injuries
ii. Ex: my living smoky because neighbor burning leaves again, and if I get him to stop, won’t be smoky anymore. Can’t say it will be smoky 10 months from now
c. Redressability – the court’s decision must be able to redress the injury
i. Ex: If smoke stained rug, then money will replace and there’s no Redressability problem. Injunctions are where Redressability problems arise
ii. Laidlaw v. Friends of Earth (2000) – residents in South Carolina sue industrial polluter
1. 3 things prof says are significant about case
a. Although it didn’t change black letter law, it was a different application…
i. Old dispute b/w Ginsburg and Scalia…Ginsburg brought it back to the center
b. Ginsburg’s sophisticated analysis on redressability issue
i. Scalia says it can’t be a redress of the injury because the fine goes to the gov’t (formalistic view)
ii. Ginsburg says it benefits P not because it’s a measure of the harm, but because it’s a deterrent against future misconduct (legal realist view)
iii. Don’t look at what it’s called, what form it takes, look at what it does. Functional equivalent to an injunction.
c. This is a deferential form of JR even though it doesn’t look like it since she’s finding standing