Roots of the Federal Court System

AP Government and PoliticsChapter 9

"Do you ever have one of those days when everything seems unconstitutional?"

Is the Supreme Court the “weakest” of all branches?

Video: The Big Picture 9

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Creation of the Court (system)

Article III calls for Supreme Court, and “inferior courts” as Congress may from time to time establish No membership #, no requirements (except

appointment and confirmation) Two important aspects that keep Court

independent: ▪ Life Tenure, no reduction in compensation

Judiciary Act of 1789 Congress does create lower tier of federal courts;

circuit courts (appeals) not added until 1789 More on structure later

9.1TABLE 9.1: What kinds of cases does the U.S. Supreme Court hear?

Founding to Civil War Key question:

Role/scope of the power of the federal government? – Limited but expanding

Key decisions: Marbury, McCulloch, Gibbons

John Marshall (1801-1835) Influences early Court decisions in favor of

stronger government; develops power of the Court from almost nothing…

Roger Taney (1836-1864) Takes over after Marshall…moves court in

different direction Away from federal power, more towards

states’ rights Key decision: Dred Scott

Civil War to 1937: The “Business of the Court” was business…

Key question: When would the economy be regulated by the states, and

when it would be regulated by the national government?▪ Rise of national economy coincides with final decision on national

supremacy (Union victory) Key decisions: Slaughterhouse cases

Idea of 14th amendment “personhood” began to be applied to businesses as well This increases the number of cases coming to Court, as

businesses begin challenging regulations▪ Begins a more activist period on the Court (at least from the

perspective of striking down laws) Not pro- or anti-business

Difficulty was in determining what were reasonable restrictions on businesses

1937 to Present After the New Deal, Court steps away from

deciding constitutionality of regulations Leaves these up to legislatures Key event: the “switch in time that save nine”▪ FDR attempts to “pack the Court”; rather than have 6

justices added, Court (Owen Roberts) begins to rule more favorably toward ND programs

The Warren Court (1953 to 1969) Concerned primarily with promoting individual rights▪ Some of the most famous decisions in our history dealing

with civil liberties and individual rights Brown, Miranda, Mapp, Gideon, Griswold, Engel,

Loving, others

Return to State Sovereignty?

From the early 1990s to the current day, the Court has taken a more conservative approach to many issues.

The Rehnquist Court (1986-2005) and the Roberts Court (2005 – Present) Both have consisted of conservative majorities▪ Have tended towards enabling states to determine

more laws on their own (Morrison, Lopez, Gonzales v. Oregon), and a stricter interpretation of the federal powers given in the Constitution.

▪ Consistent with a few surprises: Citizens United, ACA cases

The Supreme Court vs. the President

Consider: Is judicial review “unconstitutional”?

The Last Word: # 19 for tomorrow

The Power of Judicial Review

The ability of the federal courts to rule a law of Congress or the states, or an action by federal or state government, unconstitutional. Not unique, but uncommon in the world. Not created by the Constitution explicitly, and its use under the Constitution

was not the first time it had been used.▪ Used before 1787 by state courts to strike down state laws that violated state

constitutions.▪ Was first used in Marbury vs. Madison (1803)

Do these facts suggest that the framers did not intend to give the courts such a power?  Not necessarily, although that is one explanation for its absence.  ▪ It is also possible that the framers thought the power of judicial review was sufficiently

clear from the structure of government that it need not be expressly stated.  Why should the federal courts have the right of judicial review?

Because the Constitution is the “supreme law of the land”, there must be some person or group who judges when that law has been violated; it cannot be Congress or the President, because they are the ones who need to be controlled by their actions…

“Active” vs. “Passive” branches

Why is judicial review important?

In his opinion for the Court in West Virginia v. Barnette (1943), Justice Robert Jackson explained why judicial review is used to protect minorities against the possible tyranny of majority rule.

He wrote, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections“.

The Flying Fish CaseMany people know the first  Supreme Court decision to declare an act of

Congress unconstitutional (It's Marbury, of course), but few people couldidentify the Court's first decision declaring Executive Branch action to beunconstitutional. 

Little v Barreme (1804), called the Flying Fish case, involved an order byPresident John Adams, issued in 1799 during our brief war withFrance,  authorizing the Navy to seize ships bound for French ports.  Thepresident's order was inconsistent with an act of Congress declaring thegovernment to have no such authorization.  After a Navy Captain inDecember 1799 seized the Danish vessel, the Flying Fish, pursuant to

Adams'sorder, the owners of the ship sued the captain for trespass in U. S. maritimecourt. 

On appeal, C. J. Marshall rejected the captain's argument that he couldnot be sued because he was just following presidential orders.  The Courtnoted that commanders "act at their own peril" when they obey invalidorders--and the president's order was outside of his powers, given thecongressional action. 

Marbury vs. Madison (1803)

The case that “gave” the federal courts the power to determine whether actions/laws of states or the federal government violated the Constitution Between a nominated justice of the Peace under John

Adams (F – Marbury) and the new Secretary of State under Jefferson (D-R – Madison)

Court ruled that part of the Judiciary Act of 1789 (granting the Court the power to issue writs of mandamus) was unconstitutional The Commission for Marbury did not have to be

delivered (victory for Jefferson) but Courts gain power of judicial review

Quotes from Marbury The powers of the legislature are defined and limited; and that those

limits may not be mistaken or forgotten, the constitution is written. . . .

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. . . .

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each. . . .

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. . . .