Judicial Review and the Current Court

GOVT 2305

In this section we look at the development of the judiciary

(mostly the national judiciary). This includes a discussion of how the judiciary was able to obtain the

power of Judicial Review, how the courts have evolved, and the current composition of the

Supreme Court.

Appropriate Readings

Federalist #78 (wikipedia)Marbury v. Madison (wikipedia)

Creating the Federal Judicial SystemJudicial Review (wikipedia)

We will begin with an overview of Federalist 78, Written by Hamilton,

which presents the argument which became the basis of judicial

review.

Alexander Hamilton

There is nothing in the Constitution explicitly authorizing the power of

judicial review. During the Constitutional Convention it was

proposed that a Council of Revision be established to determine

whether legislation was in keeping with the Constitution.

But it was determined that the Council of Revision would likely

become tyrannical. Nothing could check it.

The issue was unresolved.

Nevertheless, the Supremacy Clause implied that a power must

exist in order to enforce the Constitution as being the

“supreme Law of the Land.”

Hamilton details that argument in Fed 78. Here’s a summary of the

argument.

He begins by emphasizing the weakness of the Judiciary

“Whoever attentively considers the different departments of power must perceive, that, in a Government in which they are separated from each other, the Judiciary, from the nature of its functions, will always be the least dangerous to

the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the

honors, but holds the sword of the community. The Legislature not only commands the purse,

but prescribes the rules by which the duties and rights of every citizen are to be regulated.”

“The Judiciary, on the contrary, has no influence over either the sword or the

purse; no direction either of the strength or of the wealth of the society; and can

take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the

Executive arm even for the efficacy of its judgments.”

Notice his use of the terms “will” and “judgment.”

Is there a clear distinction between the two? Judgment seems to have a more narrow meaning than will. To judge means that one determines

whether a decision exists within the parameters of Constitutional law, not

so with will.

This simple view of the matter suggests several important consequences. It proves incontestably, that the Judiciary is beyond comparison the weakest of the three departments of power; that it can never attack

with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though

individual oppression may now and then proceed from the courts of justice, the general liberty of the People

can never be endangered from that quarter: I mean so long as the Judiciary remains truly distinct from both

the Legislature and the Executive

He then discusses how an independent judiciary is necessary in a limited Constitution and how a

power needs to exist to declare laws contrary to the Constitution

void.

“The complete independence of the Courts of justice is peculiarly essential in a limited Constitution. By a

limited Constitution, I understand one which contains certain specified exceptions to the Legislative authority;

such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like.

Limitations of this kind can be preserved in practice no other way than through the medium of the Courts of

justice; whose duty it must be to declare all Acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or

privileges would amount to nothing.”

He states that this will not make the Judiciary superior to the other branches. It only means that the

Constitution is superior to statutory law.

“Some perplexity respecting the rights of the Courts to pronounce Legislative acts void,

because contrary to the Constitution, has arisen from an imagination that the doctrine would

imply a superiority of the Judiciary to the Legislative power. It is urged that the authority

which can declare the acts of another void, must necessarily be superior to the one whose acts

may be declared void. As this doctrine is of great importance in all the American Constitutions, a brief discussion of the ground on which it rests

cannot be unacceptable.”

“There is no position which depends on clearer principles, than that every act of a delegated

authority, contrary to the tenor of the commission under which it is exercised, is void.

No Legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master;

that the Representatives of the People are superior to the People themselves; that men acting by virtue of powers, may do not only

what their powers do not authorize, but what they forbid.”

The judiciary must keep the legislature in check and have the power to interpret the laws. The

judiciary is also responsible for the interpretation of the laws and the Constitution. This is not stated in

the Constitution.

“If it be said that the Legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon

the other departments, it may be answered, that this cannot be the natural presumption, where it is not to

be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that

the Constitution could intend to enable the Representatives of the People to substitute their will to

that of their constituents. It is far more rational to suppose, that the Courts were designed to be an intermediate body between the People and the

Legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

“The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in

fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to

ascertain its meaning, as well as the meaning of any particular Act proceeding from the Legislative body. If there should happen to be an irreconcilable variance

between the two, that which has the superior obligation and validity ought, of course, to be

preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the People

to the intention of their agents.”

He states that constitutional law must trump statutory law because the Constitution – because it went through a ratification process – is a closer reflection of the will of the

people than is statutory law.

“Nor does this conclusion by any means suppose a superiority of the Judicial to the Legislative power. It

only supposes that the power of the People is superior to both; and that where the will of the Legislature,

declared in its statutes, stands in opposition to that of the People, declared in the Constitution, the Judges ought to be governed by the latter rather than the

former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not

fundamental.”

“. . . the prior act of a superior ought to be preferred to the subsequent act

of an inferior and subordinate authority; and that accordingly, whenever a particular statute

contravenes the Constitution, it will be the duty of the Judicial tribunals to

adhere to the latter and disregard the former.”

Again, in interpreting the Constitution, judges and justices must exercise “judgment,” not “will” in interpreting the law.

“It can be of no weight to say that the Courts, on the pretence of a repugnancy, may substitute their own

pleasure to the constitutional intentions of the Legislature. This might as well happen in the case of

two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The

Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of

JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the Legislative

body. The observation, if it proved anything, would prove that there ought to be no Judges distinct from

that body.”

The judiciary can only perform this function if it has sufficient power,

and the best way to guarantee this power is to grant it lifetime

ternure.

“If then the Courts of justice are to be considered as the bulwarks of a limited

Constitution, against Legislative encroachments, this consideration will

afford a strong argument for the permanent tenure of Judicial offices, since nothing will contribute so much as this to

that independent spirit in the Judges, which must be essential to the faithful

performance of so arduous a duty.”

“This independence of the Judges is equally requisite to guard the Constitution and the

rights of individuals, from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the People themselves, and which, though they speedily give place to better

information, and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the Government, and

serious oppressions of the minor party in the community.”

Notice that he reiterates the importance of an independent judiciary, and the need of the

judiciary to maintain the form and spirit of the Constitution.

In brief, Hamilton argues that a power of judicial review is

necessary, that the judiciary ought to have that power, and he

suggests limits on how the power ought to be exercised.

Now the question is, how is the power to be claimed by the court?

That is why Marbury v. Madison is such an important case.

We now turn to, first, the court case Marbury v Madison (1803)

and, second, the debate over how the constitution ought to be

interpreted.

(Findlaw)

The story actually begins with the passage of The Judiciary Act of

1789 which not only created the first court system (more on that

below) but also gave the Supreme Court a new power: The ability to

hear cases requesting the grants of Writs of Mandamus.

Here’s relevant section in the law:

SEC. 13: The Supreme Court . . . shall have power to issue . . . writs of mandamus, in cases warranted

by the principles and usages of law, to any courts appointed, or

persons holding office, under the authority of the United States.

Definition of A Writ of Mandamus:

A writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal,

corporation, Municipal Corporation, or individual to perform, or refrain from

performing, a particular act, the performance or omission of which is

required by law as an obligation.

Jump forward a decade or so to the defeat (he came in third) of John Adams in the election of 1800.

After his defeat, the Federalists in Congress passed the Judiciary Act of

1801 which reorganized the court system and created new circuit court

positions.

Adams would staff many of these positions prior to Jefferson’s

inaugural. These became known as the midnight appointments since some were done on his last day in office. Since many of these people

were judges, they were also referred to as the midnight judges.

These appointments were meant to limit what Jefferson could

accomplish in office. Jefferson disapproved. He knew that this was a way for the Federalist to continue their influence. If they

controlled the courts they controlled the law.

the Federalists "retired into the judiciary as a stronghold“

- Thomas Jefferson

This reminds us of the consequence of life time tenure in the judiciary. It provides a check on the short term preferences of the

political branches.

The most important of the “midnight appointments” was John Marshall, the Fourth Chief Justice

of the Supreme Court. His key goal was to increase the power and

prestige of the court.

John Marshall

Prior to his appointment, the court went through 3 chief justices in

twelve years. There was little glamour or power in the position.

"My gift of John Marshall to the people of the United States was

the proudest act of my life." John Adams, President

Marshall is often argued to have been the greatest justice in court

history due to his ability to increase the power and prestige of

the court.

Attaining judicial review was a critical step. William Marbury’s

lawsuit gave him the opportunity.

William Marbury’s commission to be Justice of the Peace was not

delivered back to Marbury before Adams left office. James Madison (as secretary of state) would not

deliver the commission, so Marbury sued to have it delivered and he could occupy the position.

It was signed and sealed, but not delivered.

He took his suit to the Supreme Court based on the power granted

to it in the Judiciary Act of 1789 (text).

The court could now hear requests for Writs of Mandamus, Marbury requested that one be issued to

Jefferson.

But here’s the political background:

Jefferson let it be known that he would not deliver the commission

no matter what the courts decided. Which put Marshal in a

bind.

By either issuing or not issuing the writ, the court’s weakness would

be obvious.

As a Federalist, Marshall was interested in expanding, not

contracting, the power of government.

Marshall could not force Jefferson to deliver the commission if he

ruled for Marbury. But if he ruled against Marbury, it would seem

that the court had been intimidated by Jefferson.

The best option was to declare the writ of mandamus

unconstitutional. That is to claim the power of judicial review.

This way the court did not have to rule on the writ of mandamus.

They declared that there was no power to issue writs, so the point

was moot.

The power of judicial review was a far more significant power than

the writ of mandamus.

This was the decision given in the case of Marbury v. Madison.

1 - Did Marbury have a right to the commission? Yes

2 - Do the laws of the country give Marbury a legal remedy? Yes

3 - Is asking the Supreme Court for a writ of mandamus the correct legal remedy? No

The third clause claims that the writ violates the constitution – the

fundamental law.

Section Two Clause Two

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall

have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact,

with such Exceptions, and under such Regulations as the Congress shall make.

The Judiciary Act of 1789 allowed the Supreme Court to act as a court of original jurisdiction in issuing writs. This power is not contained in the Constitution.

The authority, therefore, given to the supreme court, by the act

establishing the judicial courts of the United States, to issue writs of

mandamus to public officers, appears not to be warranted by

the constitution

This established the precedent for judicial review of congressional

law. State laws had already been overturned, and the courts had

claimed that such a right existed, but not it was finally used.

In order to prevent backlash, the power of judicial review was used

only occasionally early on.

After Marbury, the court did not overturn a congressional law until

the Dred Scott decision, which overturned the Missouri

Compromise of 1820.

And led to the Civil War.

For a history of the use of Judicial Review by the Courts click her:

The United States Supreme. Court and judicial review of Congress,

1803-2001

Judicial Review creates two major issues for the court.

1. How should the court interpret the Constitution?

2. How aggressively should the court use the power of judicial

review?

Two general ways to interpreting the Constitution

1 - Strictly 2 - Loosely

(see Theories of Constitutional Interpretation)

Strict (or Narrow) Construction

The interpretation of the Constitution is limited. Jefferson and the Democrat – Republicans

favored a strict construction of the Constitution.

And there a couple ways – at least -- to Strictly or Narrowly interpret

constitutional language:

Original IntentTextualism

Original intent maintains that in interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended

the statute to accomplish, the actual text of the legislation

notwithstanding

This assumes a common meaning existed at the time of the founding

and that this meaning can be determined.

Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning

should govern its interpretation, as opposed to inquiries into non-

textual sources such as the intention of the legislature in

passing the law.

Both see a fixed meaning to the Constitution. Interpretations of the

Constitution should be bound by that meaning.

Loose (or Broad) Construction

The Constitution does not have a fixed meaning, rather, it can be

broadly interpreted to be adjusted to fit the contemporary needs of

society.

Proponents argues that a dynamically changing society needs a Constitution that can

adjust to changing needs.

Two relevant terms

The Living ConstitutionThe “Penumbra”

The Living Constitution is a concept in American constitutional

interpretation which claims that the Constitution has a dynamic meaning. The idea is associated

with views that contemporaneous society should be taken into

account when interpreting key constitutional phrases.

It holds that the Constitution was written with broad, vague

language in order to allow future generations to adapt its meaning

as they saw fit to their unique issues.

Certain rights can be found in the "penumbras" and "emanations" of

other constitutional protections

Example: The Right to Privacy

It’s supporters argue that the right can be found in the penumbra

surrounding the 3rd, 4th, 5th and 9th amendments. Opponents argue that if the word “privacy” is not

spelled out in the Constitution, it does not exist.

On the current court Stephen Breyer is argued to be a strong supporter of the doctrine of a

living constitution while Antonin Scalia argues for textualism

Here’s a link to a C-Span video where Breyer and Scalia debate

their respective theories of interpretation.

From the Supreme Court Website

The Court and Constitutional Interpretation

The Second Dispute:

The role of the courtsShould the courts be actively

disposed to overturn legislation they find problematic, or should

they restrain themselves and defer to the political branches?

judicial activismjudicial restraint

Judicial Activism: The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs.

Examples

Baker v CarrBrown v Board of Education

Supporters of each case argue that the issues involved (unequal

representation in legislatures and segregation in public school) could

not be changed through legislatures due to majority rule.

The courts had to actively intervene in order to protect

minorities.

Some Supreme Court justices have developed reputations as being

not hesitant about striking down laws, or making decisions actively.

Activist Judges

Such judges are sometimes accused of “legislating from the

bench,” which violates the principle of separated powers.

The question here is whether such judges are in fact acting beyond

their proper roles, or whether they are simply making decisions that are unpopular to their accusers.

The federal courts are supposed to be able to make unpopular

decisions.

Some readings along these lines:

- Activist Judges: Why are they creating such a stir?

- Activist judges? What's in a name?- Disorder In The Court:

Activist Judges Threaten Justice.- So Who Are the Activists?

Judicial Restraint: The view that the Supreme Court (and other lesser courts) should not read the judges' own philosophies or policy preferences into the constitution and laws and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state governments within their constitutional spheres of authority.

A judge exercising restraint is likely to yield to the decisions made by the political branches – as long as

they are within the limits of what is constitutionally acceptable –

despite the fact that they disagree with the substance of the law.

It is an exercise of judgment, not will.

An alternative theory: Judicial Minimalism

While its still early, this is argued to the viewpoint of Roberts and

Sotomayor.

Judicial minimalism is a judicial approach guided by three major principles. First,

judges do not simply 'apply the law,’ they make it. Two, this change is usually a

response to a society that is changing. Three, in practice this equates to narrow

rulings on the particular set of facts at hand, not sweeping change

Test Cases

A test case is a political consequence of the development

of the power of judicial review. People interested in changing a

law that they cannot affect through the legislature can

challenge whether it is properly based on the Constitution.

These can also force the courts to reconsider how they have interpreted constitutional

language in the past. Previous precedence can be overturned.

A classic example:

Brown v. Board

The case was brought forward deliberately to force the courts to

reconsider its previous ruling in Plessy v. Ferguson.

Plessy was a failed test case from 1896 that asked the courts to rule that

segregated railroad cars violated “the equal protection doctrine” in the 14th

Amendment.

The effort failed. The court ruled that separation into equal facilities did not

violate the spirit of equality.

Almost sixty years later, Brown posed the same fundamental question, this

time in terms of access to public schools.

The court overturned its previous ruling and agreed that separation was inherently unequal, and overturned existing state and local laws creating

racially segregated schools.

Again, this points out that the power of judicial review allows

opponents of a law an additional opportunity to overturn or change

that law.

The success of the challenge will be based on the ideological nature

of the court.

Next Topic:

The evolving design and composition of the courts

The United States court system has evolved over time due to the

passage of several redesigns of the court system in one of the many

Judiciary Acts passed over American history.

It has also changed as a consequence of the composition of the courts and who happens to be Chief Justice at any one moment.

Some links:

The History of the Supreme Court.

History of the Supreme Court of the United States – Wikipedia.

The Supreme Court Historical Society.

The Federal Judicial Center.

For a good survey of the history of the Federal courts read: Creating

the Federal Judicial System.

Links to Wikipedia Pages on Judiciary Acts over American History:

- Judiciary Act of 1789, established the federal judiciary.- Judiciary Act of 1801, also called the Midnight Judges Act.- Judiciary Act of 1802, repealed the 1801 Act.- "Judiciary Act of 1866" may refer to two different laws. Ch. 210, 14 Stat. 209 (July 23, 1866) is more commonly called the Judicial Circuits ActCh. 288, 14 Stat. 306 (July 27, 1866) provided for the removal of certain cases from state courts to the federal courts.- Judiciary Act of 1869, also called the Circuit Judges Act of 1869- Judiciary Act of 1891, also called the Evarts Act or the Circuit Courts of Appeals Act.- Judiciary Act of 1925, also called the Certiorari Act or the Judges' Bill.

Eras of the Supreme Court

There have been 17 Supreme Court Chief Justices.

Eras of the court are generally divide into “courts” based on who

happened to be chief justice at that time

First, a quick word on what a Chief Justice is exactly. The Chief

Justice’s responsibilities are mostly administrative. The office has no

special judicial powers.

The Chief Justice leads the business of the Supreme Court. He or she presides over oral arguments before

the Court. When the Court renders an opinion, the Chief Justice—when in the majority—decides who

writes the Court's opinion. Finally, the Chief Justice has significant agenda-setting power over the Court's

meetings. In the case of an impeachment of a President of the United States, which has occurred twice, the Chief Justice presides over the trial in the Senate. In

modern tradition, the Chief Justice also has the ceremonial duty of administering the oath of office of

the President of the United States. – Wikipedia.

For a quick overview of the history of the Supreme Court based on the

different times that a specific person held the job of Chief

Justice, I highly recommend this page from the Supreme Court Historical Society’s website.

More detailed information can be found here: Oyez Project

It separates all courts based on who served together for a period of time. And of course, here’s the

relevant wikipedia page.

Some detail on each

John Jay / The Jay Court

September 26, 1789–June 29, 1795

John Rutledge / The Rutledge Court

July 1, 1795–December 28, 1795

Oliver Ellsworth / The Ellsworth Court

March 4, 1796–September 30, 1800

John Marshall / The Marshall Court

January 31, 1801–July 6, 1835

Roger B. Taney / The Taney Court

March 15, 1836–October 12, 1864

Salmon P. Chase / The Chase Court

December 6, 1864–May 7, 1873

Morrison Waite / The Waite Court

March 4, 1874–March 23, 1888

Melville Fuller / The Fuller Court

October 8, 1888–July 4, 1910

Edward Douglass White / The White Court

December 19, 1910–May 19, 1921

William Howard Taft / The Taft Court

July 11, 1921–February 3, 1930

Charles Evans Hughes / The Hughes Court

February 24, 1930–June 30, 1941

Harlan Fiske Stone / The Stone Court

July 3, 1941–April 22, 1946

Fred M. Vinson / The Vinson Court

June 24, 1946–September 8, 1953

Earl Warren / The Warren Court

October 5, 1953–June 23, 1969

Warren E. Burger / The Burger Court

June 23, 1969–September 26, 1986

William Rehnquist / The Rehnquist Court

September 26, 1986–September 3, 2005

John G. Roberts / The Roberts Court

September 29, 2005–present

Each era of the court is influence by the results of previous

Presidential and Senatorial elections.

If the electorate votes in a liberal direction, the courts will – as

positions are made available – shift in that direction, and vice versa.

Let’s pay special attention to transition from the Warren to the

Rehnquist court.

Earl Warren, if you recall from the last set of slides, was one of Eisenhower’s self described

mistakes. He became Chief Justice at a moment when the court was

composed of people nominated by FDR or Truman.

They were primed to begin to accept arguments developed by

liberals and progressives over previous decades. Cases involving

segregation, speech and due process were coming to the court

with greater frequency.

The Warren Court’s decisions tended to be activist and were

based on broad interpretations of Constitutional language

Their decisions included some of the more famous an consequential of the 20th Century, but they also

led to a backlash.

Brown v. Board of EducationBaker v. CarrMapp v. OhioEngel v Vitale

Griswold v. Conn

This is especially true of Brown v. Board of Education which led to

the dismantling of public education in southern states, and a slow mobilization against the court.

Nixon’s Southern Strategy involved using resentment against the court as a way of getting the votes of the

South.

Once Nixon became president, he appointed William Rehnquist (who had been a law clerk when Brown was decided) an Associate Justice.

He would be elevated to Chief Justice when Ronald Reagan

became President.

From 1968 – 1993, no Democratic President would be able to make an appointment to the Supreme

Court. Many, though not all, of the Justices appointed during this time

promoted judicial restraint and narrow interpretations of the

Constitution.

They rolled back many Warren Court decisions.

Three Examples: One, they made it difficult to prove racial

discrimination. Two, they made it easier for illegally obtained

evidence to be introduced into court. Three, they made it easier to

have religious displays on public ground.

The U.S. Supreme Court

Click here for the current court

The Conservatives

Antonin ScaliaClarence Thomas

John RobertsSamuel Alito

The Liberals

Ruth Bader GinsburgStephen Breyer

Elena Kagan (expected)Sonia Sotomayor (expected)

The Swing Voter

Anthony Kennedy

Each justice is allowed to hire a small handful of law clerks to assist

them. It is not unusual for law clerks to later serve on the court.

See list of clerks here.

Data Regarding Recent Court Decisions:

The Supreme Court Data BaseScotus StatPack

How do cases get to the Supreme Court?

Procedures

A case from a lower court is appealed by the lowing party.

Specifically they request a Writ of Certiorari. This is a writ where the

court asks the lower courts to send it the trial and appellate records so

the court can search for errors.

If four justices choose to hear the case it is placed on the court’s

calendar.

The Rule of Four.

If you won at the lower level, its generally bad news if the Supreme

Court agrees to hear your case. More often than not the case will

be overturned.

The petitioner – the party that initiates the process – sends a legal brief. The respondent – the party that won at the lower level – can also if it chooses. It doesn’t have

to.

The court also considers amicus briefs – friend of the court briefs – sent in by parties not involved in

the specific case, but interested in the outcome.

Oral arguments are held after the briefs are read. Generally each side generally has 30 minutes to make their case. The proceedings can be

open-ended and even entertaining.

Click here for recordings and transcripts.

After oral arguments are held, conferences are held internally which result in votes where the

justices line up for and against the petitioner.

The Chief Justice assigns the responsibility to write the majority

decision – the one that carries weight – to whoever he chooses, unless he wants to do it himself.

Those in the minority can write dissenting opinions.

Any justice can write a concurring opinions.