On the Path to Judicial Review Federalists pass Judiciary Act of 1801.

Law designed to protect Constitution against perceived Democratic-Republican schemes

Increased number of district and appeals courts Created new judgeships for aspiring Federalists This was all happening because the Federalists

had just lost the Presidency and were trying to hold onto to control.

Shrank the size of Supreme Court from six to five

Continuing on…. Adams while on his way out of the office

of the President is rushing in his final days to make appointments.

According to Jefferson, Adams was still signing appointment commissions at nine o’clock the evening before his departure.

In the rush to make way for the new administration a stack of signed and sealed justice of the peace commissions for the District of Columbia was left on Chief justice John Marshall’s desk.

Continuing on…

Justice of the peace was a five year term created by the Federalists to reward loyal Federalists

Once Thomas Jefferson is sworn in he finds out that some of these commissions had not been delivered and orders that they be withdrawn.

Once Jefferson is sworn in one of his first acts he decides will be to repeal the Judiciary Act of 1801.

The Power Struggle Continues With Federalists in control of the

Supreme Court their party members urge them to defend the party and void any such repeal legislation by the Democratic – Republicans

The Supreme Court had the power of Judicial Review because of Article III of the Constitution where they could rule acts of Congress unconstitutional.

Judiciary Act Repealed February 3rd, 1802, by a 16-15 vote,

senate repealed the Judiciary Act and eliminated Federalist judgeships.

House passed the repeal bill a month later and Jefferson promptly signed it into law.

Supreme Court decided that they would not and could not repeal (Article VI). Could use Judicial Review to block state laws

that trespassed on federal jurisdiction or violated the Constitution, but whether they had the power to veto like Congress and the President was an altogether different matter and why they did not oppose the repeal.

Marbury vs. Madison William Marbury who had been denied his

commission of justice of the peace appealed to the Supreme Court for redress.

Asked court to issue “writ of mandamus” This was a judicial instruction to a

government officer to perform his duty, and deliver the commissions.

Marshall ruled that the court lacked the authority to compel the commissions’ delivery.

Marbury walked away without his commission Chief Justice Marshall placed a strong

argument on the books for judicial review.

Marbury vs. Madison cont.. Marshall’s decision laid the

foundation for a more assertive federal judiciary in the future.

The history of judicial review has helped to mark the three eras in the modern Court’s development.

Three Eras of the Court

1. Nation versus State First and least active of these issue eras Unresolved jurisdictional boundaries between

national and state governments were at the heart of the most significant cases.

Under Marshall’s leadership the Court favored national authority when it conflicted with the states’ rights.

Marshall maintained that the national government’s legitimacy was both independent of and superior to that of the individual states.

Nation vs. State cont…

McCulloch vs. Maryland and National Supremacy The Federalists when they were in power

had created a nationally chartered bank and appointed party members to run it.

Democratic – Republicans were not very pleased and several controlled state governments, including Maryland What they sought out to do was to tax the

national bank out of existence.

McCulloch vs. Maryland cont… In this decision Chief Justice Marshall issued the famous declaration “the power to tax involves the power to destroy”.

Stating that state taxation of federal property or its activities were unconstitutional.

The state argued that the national government had exceeded its authority in creating the national bank because there was no provision authorizing Congress to do so.

Marshall responded by saying that if the action allowed Congress to perform one of its listed powers and was not prohibited by the Constitution then it was constitutional.

Three Eras of the Court2. Regulating the National Economy

Civil War had settled the supremacy issue in favor of the national government

The second era of the judicial review was the government’s regulation of the economy.

The Court always had a sympathy for property rights and would protect them against state’s wishes to annul them.

Fourteenth Amendment was adopted in 1868 with the intent of protecting newly freed slaves from the repressive actions of the former confederate states.

Amendment stated that no state shall deprive any person of life, liberty, or property, without due process of law.

Regulating National Economy cont..

Public interest prevented the Court from settling on a consistent doctrine.

Thus the states would continue to test the boundaries of permissible regulation

Court’s track record in work hours is one example. In Lochner vs. New York (1905) the Court

struck down a New York law that restricted the work hours of a baker but three years later upheld an Oregon ruling limiting the work hours of females.

Regulating National Economy cont..

During the 1920’s the Supreme Court became more conservative on economic issues and struck down laws regulating business in states

During the Great Depression the Court narrowly affirmed emergency economic reforms.

That was until 1934, from 1934-1937 the Court struck down 12 reforms enacted during President Roosevelt’s first term

Many of these laws would’ve created emergency relief programs , controlling the production of coal and basic agricultural commodities, while regulating child labor, and providing mortgage relief.

Regulating National Economy cont.. Upon Roosevelt’s reelection in 1936 he

proposed a plan to revamp the judiciary, it was called the “Court – packing plan”. The plan was intended to get rid of the

backlog of cases by allowing the President to appoint an additional Supreme Court justice for every justice over 70.

Roosevelt would have the ability to appoint as many as 6 new justices to the Court by doing this Roosevelt could insure himself a court majority that would approve his New Deal programs.

Regulating National Economy cont.. The legislation failed in Congress However, victory was Roosevelt’s in

the end as the Court began to uphold decisions they had been against (ex: Regulating wage and working conditions in Washington State).

In the coming years Roosevelt sealed the Court’s retreat from economic policies by appointing justices who were more in line with his New Deal programs as the old justices retired.

Three Eras of the Court

3. The Rise of Civil Rights and Liberties Third era began in 1940’s Court’s main concern in this era was the

relationship between the individual and government

Why did the Supreme Court go in this direction? Rise of totalitarian regimes in Europe and

horrors of WWII may have caused jurists to more emphatically protect the personal freedoms in the United States.

The Rise of Civil Liberties cont…

Also, after WWII African Americans came home from the war expecting things to be different and be better.

They were joined in their search by large numbers of African Americans who had migrated to the North.

Together they created a community that would no longer allow the nation to ignore segregation in the south and discrimination elsewhere.

Before winning victories in Congress, civil rights proponents found a Supreme Court willing to support their cause.

In Closing These three eras are viewed as historic

because they led to major changes in our country but also because they were periods of shared disagreement between the Court and elected branches.

The current Court may be ushering in a fourth era, one in which it increasingly limits the federal government’s ability to impose policy and administrative restrictions on the states.

Court’s decisions reflect another aspect of it’s modern role in judicial review as the political system’s chief referee.

The modern Supreme Court and rest of federal judiciary are very involved in administration of national policy