2. Introduction to the Supreme Court The nature of judicial power and judicial review

3. Power of the Courts Nine unelected judges have had a profound effect on public policy. They have virtually set abortion policy (Roe et al.), were responsible for the desegregation of public schools (Brown v. Board), and they even decided a presidential election (Bush v. Gore). Nine unelected judges have had a profound effect on public policy. They have virtually set abortion policy (Roe et al.), were responsible for the desegregation of public schools (Brown v. Board), and they even decided a presidential election (Bush v. Gore). What is the role of the judiciary in our system? What power do they have that is distinct from the other branches? Should their power be separate from the other branches? What is the role of the judiciary in our system? What power do they have that is distinct from the other branches? Should their power be separate from the other branches? Is the Supreme Court an undemocratic institution? Do they have too much power– why or why not? Is the Supreme Court an undemocratic institution? Do they have too much power– why or why not?

4. Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

5. Article III continued Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;-- between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;-- between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

6. Section II continued 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. 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 trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

7. Article III Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

8. Other Key Constitutional Provisions Article 1 [Congress], Section 8: To constitute Tribunals inferior to the supreme Court; Article II [President], Section 2: He [the President] shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur, and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States … Article VI [“Supremacy Clause”]: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Amendment XI: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State.

9. Key Points Regarding Constitutional Provisions   Only Supreme Court mentioned in Constitution Size of Supreme Court left to the discretion of Congress "Inferior" (lower) courts left up to Congress Nothing about procedure (except for a requirement that criminal trials take place in the state where the offense was committed) Original vs. appellate jurisdiction No jurisdiction is exclusive and hence all federal jurisdiction may be concurrent jurisdictions

10. Federalist 78 Hamilton argues… Life term “it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws”. Power of the courts “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…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 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” “incontestably, that the judiciary is beyond comparison, the weakest of the three departments of power”.

11. Federalist 78 continued 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 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.

12. The nature of judicial power Politics- authoritative determination of society’s goals, mobilization of resources to achieve those goals, and distribution of rights, benefits, punishments, rewards among members of society. Politics- authoritative determination of society’s goals, mobilization of resources to achieve those goals, and distribution of rights, benefits, punishments, rewards among members of society. Law- chief instrument of politics Law- chief instrument of politics Judges- power of discretion (interpretation of law) in deciding who gets what when Judges- power of discretion (interpretation of law) in deciding who gets what when

13. Civil Law, Common Law and Constitutionalism Civil Law – the expressed will of the sovereign as applied by judges Civil Law – the expressed will of the sovereign as applied by judges Common Law – law is derived from experience and cases. Legal precedents are set which guide judges Common Law – law is derived from experience and cases. Legal precedents are set which guide judges Criminal Law--The government charges an individual with violating one or more specific laws. Criminal Law--The government charges an individual with violating one or more specific laws. Constitutionalism – the concepts of natural rights and limited government are enshrined in a document which is sovereign – it is the expression of the people’s will Constitutionalism – the concepts of natural rights and limited government are enshrined in a document which is sovereign – it is the expression of the people’s will

14. Marbury v. Madison Background of the case Election of 1800 Election of 1800 Adams (Federalists) v. Jefferson (Democrat-Rep.) Adams (Federalists) v. Jefferson (Democrat-Rep.) With the win, the Federalists loose control of 2 branches of government With the win, the Federalists loose control of 2 branches of government Midnight appointees by Adam Midnight appointees by Adam Goal is to “keep one branch” Goal is to “keep one branch” But all commissions don’t get delivered But all commissions don’t get delivered William Marbury William Marbury Jefferson and Madison Jefferson and Madison Put a stop to all undelivered commissions Put a stop to all undelivered commissions Marbury sues to get his commission Marbury sues to get his commission

15. Questions presented to John Marshall and the court. Does Marbury have the right to his appointment? Does Marbury have the right to his appointment? Does the Court have the right of the writ of Mandamus? Does the Court have the right of the writ of Mandamus? And if they don’t—does that mean that parts of the Judiciary Act of 1798 are unconstitutional? And if they don’t—does that mean that parts of the Judiciary Act of 1798 are unconstitutional?

16. What is the Judiciary Act of 1789? The Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. The Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. Defines Original and Appellate jurisdiction for the Supreme Court Defines Original and Appellate jurisdiction for the Supreme Court Created 13 judicial districts. Created 13 judicial districts. Established a circuit court and district court in each judicial district. Established a circuit court and district court in each judicial district. Creates the Office of Attorney General (represent the United States before the Supreme court), and a United States Attorney and Marshal for each judicial district. Creates the Office of Attorney General (represent the United States before the Supreme court), and a United States Attorney and Marshal for each judicial district. Allows for the court to issue writ of mandamus Allows for the court to issue writ of mandamus

17. Writ of Mandamus A clause of the Judiciary Act of 1789 granting the Supreme Court the power to issue writs of mandamus (an order forcing a government official to finish an act or job) A clause of the Judiciary Act of 1789 granting the Supreme Court the power to issue writs of mandamus (an order forcing a government official to finish an act or job) Marbury wants one issued to force James Madison to give him his commission. Marbury wants one issued to force James Madison to give him his commission. Madison counters that Jefferson has a right to overturn political appointees (especially ones who had not received commissions.) Madison counters that Jefferson has a right to overturn political appointees (especially ones who had not received commissions.)

18. Ruling and Reasoning Question #1: YES. Question #1: YES. Constitution is "the fundamental and paramount law of the nation" – the expression of the people’s will Constitution is "the fundamental and paramount law of the nation" – the expression of the people’s will Judges are sworn to uphold the Constitution. Therefore "an act of the legislature repugnant to the constitution is void." Judges are sworn to uphold the Constitution. Therefore "an act of the legislature repugnant to the constitution is void." Question #2: NO Question #2: NO In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. The Judiciary Act of 1789 contradicts the Constitution, there for it is unconstitutional. The Judiciary Act of 1789 contradicts the Constitution, there for it is unconstitutional.

19. Significance Establishes judicial review Establishes judicial review Court gives up the Power of the writ of mandamus in exchange for Judicial Review Court gives up the Power of the writ of mandamus in exchange for Judicial Review Power not used again to strike down a federal law until Dred Scot v. Sanford. Power not used again to strike down a federal law until Dred Scot v. Sanford. Republicanism vs. Constitutionalism (Jefferson vs. Marshall) Republicanism vs. Constitutionalism (Jefferson vs. Marshall) Primary toll of checks and balances Primary toll of checks and balances Since 1829, more than 100 federal laws ruled unconstitutional Since 1829, more than 100 federal laws ruled unconstitutional