First Day

Supreme Court Workflow 1Petitions for Certiorari

Discuss ListDismissed

Rule of Four

Certiorari Granted – Placed on Docket

Briefs Submitted

Supreme Court Workflow 2Oral Argument

Conference/ Opinion Assigned

Majority Opinion Circulated

Dissents/Concurrences Circulated

Opinion Released

Key Terms to Review

• Original Jurisdiction• Appellate Jurisdiction• Writ of Mandamus• Judiciary Act of 1789, Section 13• Art. III, sec. 2 of the Constitution

Questions for MarburyJurisdiction is the power of a court to hear a case,

shouldn’t this have been decided first?Did Congress give the Supreme Court original

jurisdiction in Sec. 13 of the Judiciary Act?Does the Constitution give Congress the power to

regulate the Supreme Court’s jurisdiction?Who wins in this case?Consider Gibson’s critique of Marbury in Eakin.

Who has the better argument, Marshall or Gibson?

Judicial Review

First Lecture

Constitutional LawGovernment has limited powers

Enumerated powers: coining moneyImplied powers: chartering national

bankIndividuals’ rights also limit gov’t powers

Enumerated rights: Speech, AssemblyImplied rights: Association, Privacy

Sources of Law

• Natural Law• Customary Law• Statutory Law• Judicial Precedent (Common Law)

Natural LawReligious conception, or at least Deist

(“endowed by their Creator”)Pre-exists state, beyond human choice, and

universal (“inalienable”)Requires acceptance of premise and poorly

defined (“these truths to be self-evident”)A modern version: “implicit in a concept of

ordered liberty”

Customary LawSpecific to a single society – not universal

“the rights of Englishmen”Fills in natural rights

due process comes to include jury trialOften relies on invented history

the “ancient constitution,” Magna CartaShould be understood as tradition, not

history

Statutory LawPrimary attribute is that it is clearly STATED

and thus created by the sovereignApplies only within single stateMay be foundational (Constitution) or ordinary (regular statutes or regulations)Governed by legislative intentSovereign may state law through its representatives

Judicial Precedent(Common Law)

• Judge-made• Applies only within court’s jurisdiction• Non-democratic, may be countermajoritarian• Dependent on other forms of law, texts• Driven by specific, often insoluble conflicts

between other stated norms which require innovative solutions

• Mostly incremental with few sudden changes

Constitutional tradition requires rule of law

Law is universal and treats all like cases similarly without special treatment for any person.

Rule of law applies to the state as well as all private parties

Tom Paine: “as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

H.L.A. HartRule of law requires both

1. Primary rules – obligations and prohibitions

2. Secondary rules – which govern primary rules and give them proper effect, signaling when they are legitimate

Judicial Review:

Judges Examine The Legitimacy Of Primary Rules

Using Secondary Rules

Example: Gay Marriage in CA

Marriage license regulations are primary rules (must be 18, not married to anyone else)

Popular sovereign added Prop 8 banning gay marriage to CA constitution - adds new primary rule (must be one man/one woman)

Example: Gay Marriage in CA

Secondary Rule #1:State Constitutions are to be given

great weight in state matters, esp. b/c of popular ratification (or initiative as in CA)

Example: Gay Marriage in CA

Secondary Rule #2:14th Amendment of U.S. Constitution: “no state may deny any person equal

protection of the law” nor deprive any person “of life, liberty or property without due process of law”

Two Forms of Due Process

Procedural: A person must be given notice and a fair hearing before a neutral decision-maker before adverse action

Substantive: Laws must be based in real needs and the means chosen to serve those needs must be based in both logic and evidence

Due Process Question in Prop 8 Case is:

How are the state’s interests in marriage furthered in a logical manner based on evidence and concretely enough tied to a specific requirement of a male/female couple?

Example: Gay Marriage in CA

Judge Walker finds that :Prop 8 lacked a proper, secular

purpose in denial of wedding license to same sex couples, thus depriving persons of liberty to marry based solely on sex of partner

Example: Gay Marriage in CA

Secondary Rule #3:Supremacy Clause of U.S. Constitution: “This Constitution … shall be the

supreme Law of the Land”14th Amend trumps Prop 8

Dr. Bonham’s Case (England, 1610). Parliament could not delegate judicial

powers over disciplinary cases to the Royal College of Physicians when the Royal College receive the proceeds of the fines because of the principle of due process that “no man should be a judge in his case”

Dr. Bonham’s Case (England, 1610).

Chief Justice (Sir) Edward Coke wrote, “when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.”

Bayard v. Singleton (North Carolina, 1787)

Bayard sought to reclaim her Loyalist (Tory) family's confiscated property after the Revolutionary War.

A panel of local judges (NC did not yet have a Supreme Court) found that the NC law allowing confiscation violated the right to property.