GOVT 2302 The Judiciary Judicial Review, the Evolution of the Courts and their Current Organization.
-
Upload
daniela-boyd -
Category
Documents
-
view
215 -
download
0
Transcript of GOVT 2302 The Judiciary Judicial Review, the Evolution of the Courts and their Current Organization.
GOVT 2302
The JudiciaryJudicial Review, the Evolution of the
Courts and their Current Organization
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.
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
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.