The Judicial Function in Constitutional Cases

By Lauren Wells,2014-11-26 12:39
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The Judicial Function in Constitutional Cases



    I. The Nature and Sources of Supreme Court Authority

    A. The Establishment of Judicial Review: Marbury v. Madison (1803) ? Supreme Court is the Final

    Arbiter of what is Constitutional through the Process of Judicial Review (i.e. determining whether the

    law is constitutional)

     1. Case History and Background Information

    a. History of Judicial Review

    (1) In England, Parliament is the final decision make there is no concept of judicial

    review st(2) At 1 in the colonial US, there was a tendency to place enormous power in the

    legislative branch due to a fear of the King and judiciary (non-elected), thought was

    that judicial issues would be decided by the upper branch

    (3) Backlash against this legislators were self oriented and very democratic (e.g.

    forgiving debts) in post Declaration of Independence US, there had to be a check on

    the legislature so that no one branch dominates

    (4) Judiciary would be the one to decide if the legislature acted in a way inconsistent

    with the organic nature of the gov‟t i.e. the Constitution thus judiciary decides


     b. 2 Camps at Discord

    (1) Split between the Federalists and the Republicans/Jeffersonians had different

    concepts on how the gov‟t should function

     (a) Federalists: strong central rights

     (b) Jeffersonians: stronger state‟s rights, decentralized democracy

    (2) Alien & Sedition Act: Federalists make it a crime to criticize the gov‟t - can‟t

    speak badly of the government or jail and fines

    (a) Jeffersonians upset, wanted it to be declared unconstitutional, were ready

    to adopt the concept of judicial review of constitutionality, feel that they have

    a more of a chance with the judiciary (more independent, life tenure, don‟t

    have to be re-elected, can‟t lower salary)

    (3) Jefferson elected president in 1800 by Congress Burr & Jefferson got the same

    amount of electoral votes, thrown in HoR who elect Jefferson and takes office on


     c Instant Case History

    (1) Marshall becomes Chief Justice in 2/1801 and had also signed Marbury‟s

    commission in question in the case while he was also Secretary of State

    (2) President Adams on the way out goes to work in 2/1801

    (a) Midnight Judges Act: reduces SC size from 6 judges to 5 to prevent

    Jefferson from filling empty slot

    (b) Organic Act of DC: appoints 16 circuit court judges name throughout

    February , which really ticks off Jefferson

    (3) John Marshall and his brother James craft the commissions for the new judges;

    did it all night but told by Jefferson that they had to stop at midnight on 3/4/1801

    (4) The Plaintiff judges had been nominated and confirmed, but they did not have

    their commissions delivered in time

     d. Procedural Context

     (1) Marbury thinks that he should be a judge; Jefferson disagrees


     (2) Marbury takes the case directly to the SC

    (a) ? 13 of the Midnight Judges Act afforded original jurisdiction to the SC to

    issue a writ of mandamus to person holding office to deliver the commission

    (b) Note: Original jurisdiction means that its possible to have a trial in front of

    the 9 SC justices (1 appointed as a master)

    (3) Conflict of Interest? Marshall had signed the commission and now had to decide

    the case; also James Marshall had filed an affidavit essentially saying that he was a


     e. Jeffersonian Press on the Federalists Marshall Under Great Pressure

    (1) Jeffersonian take over Congress and now are against the notion of judicial review

    since it‟s the only branch that they don‟t control

    (2) Impeachment of Federalist Justices - Pickering of NH (alcoholism=high crimes

    and misdemeanors), wanted to impeach 5 SC justices

    (3) Repealed Midnight Judges Act - dumped 16 justices and decided that there should

    be 6 SC justices

    (4) Canceled the 1802 SC session Marbury was brought in 1801 and decided in


    (5) SC issues show cause order to Madison (now Sec. of State) to ask why its not a

    mistake; he just doesn‟t bother to show up

    2. Marshall‟s Holding: Constitution is Supreme and Invalidates Conflicting/Contradictory

    Action [he goes about this in an indirect manner]

    a. Does Marbury have a right to the commission? Yes, when the commission is signed the

    appointment is made

    b. Does Marbury have a remedy? Yes

    (1) Political Act? If delivering/withholding the commission is a discretionary,

    political act then there is no remedy; based on the Constitution the judiciary won‟t get

    involved in executive discretion because the judiciary doesn‟t want to intrude on their


    (2) No Discretion Involved - discretion already exercised by the nomination and

    confirmation of the candidate; right accrued - executive has no discretion to withhold

    it now

    (3) Mandamus (judicial order to take an affirmative act) is the proper remedy c. Can the Court Issue It? No, Original Jurisdiction under the Judiciary Act of 1789 in Unconstitutional

    (1) ? 13 of the Judiciary Act of 1789 states that the SC can issue a mandamus to

    persons holding office through original jurisdiction w/o going to any lower court first

    (a) Marshall‟s interpretation is questionable (he stuck the rabbit in the hat)

    (b) Marshall thinks that Jefferson is wrong but at the same time he is setting it

    up to rule in Jefferson‟s favor because he doesn‟t want to interfere with the


    (2) Constitution specifically delineates SC‟s original jurisdiction; The Judiciary Act

    of 1789 is expanding the SC‟s original jurisdiction to add things not originally there;

    therefore the act is contradictory

    d. Can the Court Void the Law? Yes, the Constitution is Superior in Nature and

    Conflicting Congressional Action is Invalidated (Last Word)

    (1) Justification for Constitution‟s Supremacy


    (a) Oaths to Constitution judges take oaths to uphold the Constitution; it

    would be immoral if they took an oath but then ruled in favor of conflicting


    (b) Specific examples in the Constitution where change is not permitted

    treason, tariffs, taxes

    (c) Article VI in stating the “supreme law of the land” mentions the

    Constitution first; so it ranks over all other laws made in pursuance 3. Main Point: Marbury v. Madison establishes the concept that the Supreme Court is the final

    arbiter of what is constitutional through judicial review “it is emphatically the province and duty

    of the judicial department to say what the law is”

    a. Bottom Line - Unless constitutionally amended or the SC later reverses itself, that‟s it

    when the SC speaks

    (1) Statute can‟t overturn a constitutional ruling - Dickerson (2000) - 1968 statute

    couldn‟t overturn Miranda warning which is a constitutional rule

    c. Pragmatic Constraint SC does not have an army to enforce its decisions; if its decision

    is not followed then its tough for the court to enforce it

     (2) Cooper (1958) Eisenhower had to federalize the AR national guard

     d. Justification for SC as Final Arbiter

     (1) by nature of written Constitution

     (2) historical argument - legislative abuses of power

     4. **Highlights Of Marbury v. Madison**

    a. Rules in Jefferson/Madison‟s favor by not requiring delivery of the commission but at the

    same time says that they are wrong (Marbury could go to a district court)

    b. Establishes the Doctrine of Judicial Review Marshall previously was powerless but now

    has power w/o doing anything

    c. Illustrates concern over Exercising Affirmative Authority SC relies on their prestige in a

    tight & restrictive way since they don‟t have an army to enforce their rulings

    d. Notes that the Executive Branch has some degree of Unreviewable Discretion (but

    delivery of the commission was not discretionary)

     5. Presidential Thoughts on Judicial Review

    a. Reflex is to abide by SC decisions, but practically they have no police force so they don‟t

    want the president to turn on them since they have no way to back it up

    (1) When Warren Court decided the revolutionary Miranda case, people wanted to

    impeach Warren and replace him with a textualist

    b. Presidents have questioned SC‟s role as final arbiter of the Constitution

    (1) Nixon SC can decide what they want but I don‟t have to listen to it

    (2) Linclon SC decisions are binding in the instant case, but the rules may change

    c. Professor Greenberger‟s take

    (1) SC can rule and a party may have to do something, but you can still say that the

    ruling is wrong

    (2) If a later case involves facts that are even slightly distinguishable, don‟t ignore the

    court, but go back to the court with new, different facts (Roosevelt on Gold Clause)

    (3) SC also can overrule itself (Plessy v. Ferguson)

     B. Authority to Review State Court Judgments

    1. SC Can Review State Court Decisions If It Involves Federal Law Interpretations (Constitution, Fed. Statutes, Treaties); State Is Supreme On State Law Issues


    a. Martin v. Hunter‟s Lessee (1816) VA took land in 1783 under state law, under treaty

    (federal law) the land was found not to be seizable, Marshall recused himself in this situation because of his contract to buy part of it, Justice Story (Republican from MA) decides the case and now wants uniform, strong federal laws due to the War of 1812 and New England‟s threats to succeede

    (1) Rejected the challenge to constitutionality of ? 25 of the Judiciary Act of 1789,

    which allowed SC review of the highest state court decisions on federal law issues

    (2) Holding: Treaty ruled over VA Law (VA wanted to disregard this holding)

    (3) Reasoning:

    (a) Necessity of Uniformity in Constitutional Decisions can‟t have states

    going one way and the SC the other

    (b) State Court Worries judges‟ attachments/prejudices/jealousies might

    obstruct the regular administration of justice, as a general rule state court

    judges feel much more pressure than federal judges with lifetime tenure

    2. SC can review the validity of state laws in criminal proceedings

    a. Cohens v. Virginia (1821) Cohen brothers convicted in Norfolk of selling District of Columbia lottery tickets in violation of VA laws, Cohens claimed that they were immune from state laws in selling congressionally authorized lottery tickets under the supremacy clause, SC had the constitutional authority to review state judgements because the “judicial power extends to all cases arising under the constitution or a law of the United States, whoever the parties may be”

     C. Political Limitations On Judicial Review Congressional Court Stripping

    1. Congress Can Strip SC‟s Appellate Jurisdiction (Congress can‟t alter original jurisdiction);

    unclear how far Congress can go in this regard (SC does charge forward)

    a. Art. III ? 2: The SC has appellate jurisdiction “with such exceptions and under such regulations as Congress shall make”

    b. Ex Parte McCardle (1869) military gov‟ts imposed in Post Reconstruction South, D is a

    newspaper editor jailed for violating reconstruction laws, brings a habeas corpus claim under 1867 reconstruction act which offered habeas corpus to one restrained in violation of the Constitution and appeals to the SC, D claims that the reconstruction acts were unconstitutional, SC sustains jurisdiction but before they can rule Congress passes 1868 act which repealed SC‟s jurisdiction because Congress was worried that whole reconstruction would be found unconstitutional

    (1) McCardle carried whole weight of reconstruction with him to the SC; President

    Johnson has already been impeached for his opposition

    (2) Congress amended the statute to say that the court couldn‟t here the case – can

    they do this?

    (3) Holding: SC Lacks Jurisdiction this is an appellate jurisdiction case; exception

    made by Congress to strip appellate jurisdiction, that‟s it!