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LECTURE #2: The Judicial Concepts

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1 LECTURE #2: The Judicial Concepts
Presented by Derrick J. Johnson, MPA, JD Honors Constitutional Law, School for Advanced Studies

2 Federalism and Judicial Review
Federalism is defined as the division of power and the relationship between the state government and the federal government. The Supreme Court has often assumed the role of umpire between the federal government and the states by utilizing its power of judicial review.

3 Federalism and Judicial Review
The supremacy of the federal judiciary over the state courts can be traced to the early days of the Marshall Court. Martin v. Hunter’s Lessee (1816) The state of Virginia granted the same tract of land to the Appellee, Hunter, that a federal treaty give to the Appellant, Martin. The Supreme Court of the United States declared that Appellant was so entitled, but the Virginia Court of Appeals, to which the case was remanded, refused to carryout the Supreme Court’s judgment. The United States Constitution (Constitution) and the laws of the United States made in pursuance thereof shall be the supreme law of the land and the judges in every state shall be bound thereby. It’s important to recognize that this case pertains to the power of the federal courts to review decisions by state courts. In Marbury v. Madison, at issue was as a federal court’s power to review an act by another branch of the federal government.

4 Federalism and Judicial Review
The Court has also assumed the role of champion of he rights of the citizen against the state government. Moore v. City of East Cleveland (1977) A Cleveland, Ohio housing ordinance limited occupancy of a dwelling unit to members of a single family. The ordinance defines “family” as including only a few categories of related individuals. The Appellant, Inez Moore challenged the constitutionality of the ordinance because her family failed to meet the legal definition of family under the Cleveland ordinance. (She lived with her two grandsons who where only first cousins). The Ohio Court of Appeals affirmed the judgment. The Ohio Supreme Court denied review of the judgment. The U.S. Supreme Court held that related individuals have a fundamental right to live with one another.

5 Federalism and Judicial Review
However, there are limitations to this power. Congress has the power, through Article III to limit the scope of the Court’s appellate powers: Ex Parte McCardle (1869) McCardle, a newspaper editor, was arrested for writing articles critical of Reconstruction, petitioned the Supreme Court of the United States (United States) for a writ of habeas corpus. McCardle argued the Military Reconstruction Act (the Act) and his prosecution were unconstitutional. Congress, by repealing the United State Supreme Court’s (Supreme Court) appellate review of writs of habeas corpus, effectively took jurisdiction over McCardle’s case away from the Supreme Court.

6 Adequate and Independent State Grounds Doctrine
The adequate and independent state ground doctrine states that when a litigant petitions the U.S. Supreme Court to review the judgment of a state court which rests upon both federal and non-federal (state) law, the U.S. Supreme Court does not have jurisdiction over the case if the state ground is (1) “adequate” to support the judgment, and (2) “independent” of federal law. Michigan v. Long (1983) David Long was convicted for possession of marijuana found by police in the passenger compartment and trunk of the automobile that he was driving. Long filed a motion to suppress the marijuana taken from his vehicle.

7 Adequate and Independent State Grounds Doctrine
The adequate and independent state ground doctrine states that when a litigant petitions the U.S. Supreme Court to review the judgment of a state court which rests upon both federal and non-federal (state) law, the U.S. Supreme Court does not have jurisdiction over the case if the state ground is (1) “adequate” to support the judgment, and (2) “independent” of federal law. Michigan v. Long (1983) David Long was convicted for possession of marijuana found by police in the passenger compartment and trunk of the automobile that he was driving. Long filed a motion to suppress the marijuana taken from his vehicle.

8 Adequate and Independent State Grounds Doctrine
If there is not a plain statement that a lower state court’s decision rests upon adequate and independent state grounds and when the state appears to have rested its decision primarily on federal law, the Supreme Court will assume that the decision is in fact based on federal law..

9 Bush v. Gore (2000) Facts: The 2000 presidential election was a close race between Texas Governor George W. Bush and Vice-President Al Gore. On election night, the results were inconclusive. Gore had won the popular vote, but neither candidate had won the electoral vote. The election outcome depended on Florida. After a series of challenges in the state courts, the Florida Supreme Court ordered a manual recount for voter’s cards to determine what ‘hanging chads’ meant; there were a bunch of votes that didn’t count that Gore wanted to be counted. However, there were different methods for doing the recount all across the state. Bush argued that this is unconstitutional because it violated the Equal Protection and Due Process Clauses. 

10 Issue: Did the FL SC establish new standards for resolving Presidential election contests violating Art 2, § 1, cl.2 of Constitution and also 3 USC § 5? Does the use of standardless manual recounts violate the Equal Protection and Due Process clauses? Holding: The Court held that it did violate the Equal Protection only. The failed to address the Due Process issue. Reasoning: “When the state legislature vests the right to vote for President in its people, this right becomes fundamental and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” A person’s vote cannot be given disparate or diluted treatment.

11 Bush v. Gore (2000) The problems with counting the votes in Florida during the 2000 presidential election led to widespread criticism of a long accepted tradition in American politics: local control of the voting process. It was on this basis that many criticized the Court’s decision for violating the adequate and independent state grounds doctrine.

12 Eleventh Amendment “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.” It is the 11th Amendment that grants sovereign immunity to states. It was passed as a measure to overturn the Chisholm v. Georgia case which allowed a citizen to sue a state.

13 Eleventh Amendment Ex Parte Young (1908)
Minnesota Attorney General Edward T. Young refused to enforce an injunction against a state law that sought to limit what railroads could charge. The Supreme Court provided an important exception to the 11th Amendment sovereign immunity States enjoy: the Stripping Doctrine. The Stripping Doctrine is a legal fiction which allows injunctive relief against what are essentially state actions.

14 Eleventh Amendment While the 11th Amendment immunizes States from actions by private parties, the Stripping Doctrine argues that when a state officer takes an unconstitutional action, she acts beyond the scope of her authority, as no State could have authorized her to act unconstitutionally. When acting outside such authority the officer was "stripped" of her official power and cannot invoke the State's immunity, although she remains subject to the consequences of her official conduct.

15 Eleventh Amendment Seminole Tribe of Florida v. Florida (1996)
The Seminole Tribe of Florida, sued the Respondents, the State of Florida and its Governor, alleging that the Respondents had refused to enter into any negotiation for inclusion of gaming activities in a tribal state compact, thereby violating the requirement of good faith negotiation contained in the federal Indian Gaming Regulatory Act (the Act). Even when the United States Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment of the Constitution prevents congressional authorization of suits by private parties against unconsenting states.

16 Justiciability Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. Justiciability in American law seeks to address whether a court possesses the ability to provide adequate resolution of the dispute Where a court feels it cannot offer such a final determination, the matter is not justiciable.

17 Justiciability Criteria
Justiciability is important because it is one of several criteria that the U.S. Supreme Court use to grant a writ of certiorari. The justiciability criteria is as follows: 1.) The petitioner must have standing 2.) The case must be a live case and controversy 3.) No Advisory Opinions 4.) No Political Questions

18 Standing Standing is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. Elements Discrete and Palpable Injury Caused by Defendant's (alleged) Action Remediable by Court Plaintiff's personal rights at stake

19 Allen v. Wright (1984) HOLDING
It is speculative whether plaintiffs’ claim of injury arising from their children’s diminished ability to receive an education in a racially integrated school. It fails because the alleged injury is not fairly traceable to the Government conduct that is challenged as unlawful. To recognize respondents’ standing to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties would be contrary to the idea of separation of powers that underlies standing doctrine.

20 Flast v. Cohen (1968) FACTS Flast brought suit, claiming standing solely as taxpayers, seeking to enjoin expenditure of federal funds on religious schools. Appellant claimed such expenditures violated the Establishment and Free Exercise clauses of the First Amendment of the United States Constitution.

21 Flast v. Cohen (1968) Taxpayer standing is appropriate when the plaintiff challenges an enactment under the taxing and spending clause of the Constitution and the enactment exceeds specific constitutional limitations on taxing and spending. ISSUE Have the Appellants established standing to bring suit in an Article III court?

22 Flast v. Cohen (1968) RULE OF LAW DISSENT
Taxpayer standing is appropriate when the plaintiff challenges an enactment under the taxing and spending clause of the Constitution and the enactment exceeds specific constitutional limitations on taxing and spending. DISSENT Justice John Marshall Harlan argues that the two requirements outlined by the majority do not establish that P has a personal stake in the outcome.

23 Warth v. Seldin (1975) FACTS Numerous parties in Penfield, New York (Penfield) contested the town’s zoning rules. Those parties argued that the rules were enacted to restrict the building of low to moderate income housing. The four main categories of parties were: 1) low-income persons seeking affordable housing, 2) taxpayers from neighboring cities, claiming the lack of housing in Penfield caused their cities to provide tax incentives for the construction of similar housing, increasing the neighboring cities’ tax burdens,

24 Warth v. Seldin (1975) 3) Metro-Act, a local action group, claiming that the refusal to build low income housing prevented those with low to moderate incomes from living in the town of Penfield 4) real estate developers who missed out on projects for the construction of low to moderate income housing because of the zoning rules. ISSUE Have the zoning rules in Penfield, NY caused the injuries of which these plaintiffs complain and if so, what is the remedy?

25 Warth v. Seldin (1975) HELD None of the plaintiffs have standing to bring this action against the city of Penfield, NY. None of the plaintiffs provided evidence sufficient to show that “but for” the city’s zoning rules, their respective injuries would not have occurred. Further, any redress of potential injury was too vague and not sufficiently concrete to meet the applicable standing requirements. The Supreme Court applied a two-part test in analyzing the standing doctrine’s causation requirement when pursuing a claim against a government entity. First, the moving party must demonstrate that “but for” the challenged action, there would not have been an injury.

26 Warth v. Seldin (1975) Second, the plaintiff(s) must show that a decision by the Court will redress the injury. Whether the probability of redress must be reasonable or substantial is determined on a case by case basis

27 Allen v. Wright (1984) FACTS The Internal Revenue Service denied tax-exempt status to racially discriminatory private schools and established guidelines for determining whether particular schools were racially nondiscriminatory.

28 Allen v. Wright (1984): Background
Wright and other parents (P) of black children who were attending public schools undergoing desegregation brought a nationwide class action lawsuit against the IRS and certain private schools in federal district court, seeking declaratory and injunctive relief. Wright alleged that the IRS had not adopted standards and procedures sufficient to satisfy its obligation to deny tax-exempt status to racially discriminatory private schools, thereby harming the plaintiffs directly and interfering with their children’s opportunity to attend desegregated public schools.

29 Allen v. Wright (1984): Background
Wright also alleged that many racially segregated private schools had been created or expanded while the public schools were undergoing desegregation, and that these private schools had received tax exemptions despite the IRS policy. There was no allegation that the children of the plaintiffs had ever or would ever apply for admission to any private school. The District Court permitted intervention as a defendant by petitioner Allen. The District Court dismissed the complaint for lack of standing. The Court of Appeals reversed and the Supreme Court granted cert.

30 Allen v. Wright (1984) ISSUE Did Wright have standing to bring suit against the IRS for failing to deny tax exempt status [501(c)(3)] to racially discriminatory private schools

31 Allen v. Wright (1984) HOLDING
The plaintiffs’ claim that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools fails because it does not constitute judicially cognizable injury. An asserted right to have the Government act in accordance with law, without more, is not sufficient to confer jurisdiction on a federal court.

32 Mootness Plaintiff must have live controversy Case can become moot
when complaint filed, AND at all stages of litigation burden on Defendant to establish mootness Case can become moot Parties die, events occur or lapse Controversy is settled Exceptions to mootness Voluntary cessation of harm Capable of repetition yet evading review

33 Capable of Repetition w/o Review
Moore v. Ogilvie (1969) Election controversies are usually over by the time case can be resolved Strict mootness doctrine would preclude review Roe v. Wade (1973) Pregnancy usually over before case decided

34 Defunis v. Odegaard (1974) FACTS
Petitioner DeFunis, a white applicant to the University of Washington law school, sued the Board of Regents of the University of Washington in state court after he was denied admission. DeFunis alleged that the law school discriminated against applicants of certain races and ethnicities, including whites, by admitting minority applicants with significantly lower undergraduate grades and LSAT scores.

35 Defunis v. Odegaard (1974) DeFunis maintained that his rejection was predicated on racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. The District Court granted DeFunis injunctive relief and ordered the law school to admit him. When DeFunis was in his second year of law school, the Supreme Court of Washington reversed, holding that the admissions policy was not unconstitutional. The case came before the Supreme Court of the United States for a full hearing when DeFunis was in his final year of law school. Although the law school assured that it would allow DeFunis to graduate regardless of the Court’s decision, both parties contended that mootness did not exist to block formal adjudication of the matter.

36 Defunis v. Odegaard (1974) ISSUE
Law School usually over by time case is final But dispute not capable of repetition for him Thus, he might not have requisite stake in outcome Should case have been filed as class action? ISSUE Does an actual controversy exist between the parties, capable of redress by the United States Supreme Court (Supreme Court)?

37 Defunis v. Odegaard (1974) HELD
The Court ordered the parties to address the issue of mootness before they proceeded to any other claims in the petition. The Court reasoned that “federal courts are without power to decide questions that cannot affect the rights of litigants in the cases before them.” This requirement stems from Article III of the Constitution, under which the exercise of judicial power depends upon the existence of a case or controversy. No amount of public interest would be sufficient to create an actual case or controversy, and the case was rendered moot because DeFunis was going to graduate from the law school regardless of the Court’s ruling.

38 Ripeness Principle: avoidance of premature litigation
Premature if harm lies in future without fair degree of certainty that it will occur Premature if facts are yet to gel, such that precise contours of controversy are unknown Retrospective relief (damages) All facts lie in the past; no conjecture necessary Prospective relief (injunction; decl. relief) Some (all) facts lie in the future; speculative?

39 City of Los Angeles v. Lyons (1983)
FACTS Adolph Lyons was pulled over by a Los Angeles police officer for a traffic violation. He offered no resistance, and without provocation, the police officer seized Lyons and placed him in a chokehold, rendering Lyons unconscious. Lyons sued the municipality and sought damages and injunctive relief in District Court for the Central District of California. He asked the court to issue an injunction preventing the police department from using chokeholds in the future unless circumstances were to result in death or serious bodily injury if force was withheld.

40 City of Los Angeles v. Lyons (1983)
ISSUES Does this case present an “actual case or controversy” that can be determined by the Supreme Court? If so, does Lyons have standing to seek injunctive relief against the municipality of Los Angeles?

41 City of Los Angeles v. Lyons (1983)
HELD This case does not present an “actual case or controversy” as required in the Constitution under Article III. Past illegal conduct, by itself, is insufficient to establish an actual case or controversy for injunctive relief. Even though Lyons was injured by the police in the past, this act alone does not establish that Lyons is threatened with immediate injury or that he will be pulled over and placed in a chokehold again.

42 Advisory Opinions Before the court will hear a case, it must find that the parties have a tangible interest at stake in the matter, the issue presented must be "mature for judicial resolution" or ripe and a justiciable issue must remain before the court throughout the course of the lawsuit. Courts must decide cases; If those cases set up the constitution as a right or defense, courts must be allowed to look to the constitution; If the constitution is supreme, it must provide the rule of decision in every case in which invoked but only when necessary to decide actual cases

43 Opinion of the Justices (1793)
Interpretation of peace treaty Why did Washington/Jefferson want a judicial interpretation of the treaty & US obligations? Why didn't Jay want to provide it? "We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States." In the spring of 1793, after the Second Congress had adjourned, news reached Philadelphia that the revolutionary French government had declared war against Great Britain. On April 22, President Washington issued his famous neutrality proclamation. 10 "The duty and interest of the United States," wrote the President, required that they "adopt and pursue a conduct friendly and impartial toward the belligerent powers." He therefore deemed it appropriate "to declare the disposition of the United States" to act in a friendly and impartial manner, "and to warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever which may in any manner tend to contravene such disposition." No citizen who offended the law of nations by participating in hostilities or by delivering contraband could count on our government for protection. Finally, said Washington, he had instructed the appropriate officers "to cause prosecutions to be instituted against all persons who shall, within the cognizance of the courts of the United States, violate the law of nations with respect to the powers at war, or any of them." 11 The President's Cabinet had unanimously approved a declaration along these lines, but Jefferson had expressed serious misgivings along the way, some of which were of a constitutional nature. 12 There followed an epic newspaper battle between  [*5]  Hamilton ("Pacificus") and Madison ("Helvidius") over the relative powers of the President and of Congress in the realm of foreign affairs. 13 On July 18, 1793, Secretary of State Thomas Jefferson wrote the Justices at the direction of President Washington, asking whether they might answer "questions [that] depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land," but that arise "under circumstances which do not give a cognisance of them to the tribunals of the country." 3 Correspondence and Public Papers of John Jay (H. Johnston ed. 1891) (emphasis in original). The letter specifically invited the Justices to give less than a categorical yes-or-no answer, offering to present the particular questions "from which [the Justices] will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on." Id., at 487. On August 8, 1793, the Justices responded in a categorical and decidedly "impatient" manner, saying that the giving of advisory opinions--not just advisory opinions on particular questions but all advisory opinions, presumably even those concerning legislation affecting the Judiciary--was beyond their power. "[T]he lines of separation drawn by the Constitution between the three departments of the government" prevented it. Id., at 488. The Court rejected the more "cautious" course of not "deny[ing] all hopes of intervention," post, at ____, 158 L. Ed. 2d, at 578, but leaving the door open to the possibility that at least some advisory opinions (on a theory we could not yet imagine) would not violate the separation of powers.

44 Opinion of the Justices (1793)
Advisory Opinions If not S.Ct., who gives President legal advice? Art. II, § 2, ¶ 1: "the President … may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective offices …“ After Jay’s letter, Washington’s Cabinet formulated a set of "regulations" reflecting executive interpretation of international law -- for the President cannot fulfill his obligation to take care that the law be executed without making a determination of what it means. Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.

45 Political branch must have both power and discretion
Political Questions Marbury: “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” “in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.” True for congress too? Political branch must have both power and discretion

46 Where Political Questions Arise
Foreign Relations: In certain matters the US must speak with a single voice Existence of Hostilities: Finality of decision and certainty required Constitutional Amendments: Need for finality and certainty about status Guaranty clause: Clause commits to political branch any question of enforcement

47 Baker v. Carr (1962) Claim: Unequal apportionment of Tennessee legisla-ture violated: Guaranty Clause of Art. IV, § 4 Rejected in Colegrove v. Green (1946) See also Luther v. Borden (1849) Equal Protection Clause of 14th Amendment Spring, 2006 Con Law I - Manheim

48 Baker v. Carr (1962) Political Questions:
Textually demonstrable constitutional commit-ment of issue to coordinate political department This is the essential element of the Pol. Qu. doctrine Does the constitution assign to one of the political branches (of the federal government) power to act wrt the issue ? Power alone is insufficient. The branch must have final decision-making authority (i.e., discretion to act)

49 Baker v. Carr (1962) Political Questions:
Textually demonstrable constitutional commit-ment of issue to coordinate political department Lack of judicially discoverable and manageable standards for resolving the issue Impossibility of deciding without initial policy determination clearly for nonjudicial discretion Lack of respect due coordinate branch of gov’t Unusual need for unquestioned adherence to a political decision already made Potential embarrassment from multifarious pronouncements by various departments

50 Powell v. McCormack (1969) Removing a member of congress
Exclusion (Art. I, § 2) “No Person shall be a Representative who shall not have attained to the Age of 25 Years, and been 7 Years a Citizen of the US, and … an Inhabitant of that State..” Expulsion (Art. I, § 5, ¶ 2) Each House may … punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.” Impeachment (Art. II, § 4) “all civil Officers of the United States shall be removed from Office on Impeachment [and] Conviction...”

51 Powell v. McCormack (1969) FACTS Claim:
Powell was elected to serve in the House of Representatives for the 90th Congress. However, a House resolution prevented him from taking his seat. Powell challenged this resolution. Claim: Exclusion from House exceeded grounds specified in Art. I, § 2: “No Person shall be a Represen-tative who shall not have attained to the Age of 25 Years, and been 7 Years a Citizen of the US, and … an Inhabitant of that State …”

52 Powell v. McCormack (1969) Defense: Held:
Art. I, § 5 commits exclusion to discretion of House “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” Held: Non-justiciable political questions will not be reviewed by the Court because the Constitution commits another branch of government to determine these issues.

53 Goldwater v. Carter (1979) FACTS:
President Carter terminated a treaty with Taiwan, and a few Congressional members felt that this deprived them of their Constitutional function. However, no Congressional action was ever taken. The Senate considered a resolution that would require the President to get Senate approval before any mutual defense treaty could be terminated, but there was no final vote on the resolution.

54 Goldwater v. Carter (1979) Claim:
President’s unilateral abrogation of treaty with Republic of China violated Art. II, § 2, ¶ 2: “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” What power has been dele-gated to the President? To the Senate? Are these judicial questions? Do they lack judicially manageable standards? Spring, 2006 Con Law I - Manheim

55 Goldwater v. Carter (1979) Foreign Affairs:
Always non-justiciable political questions? HELD Yes. Whether or not a President can terminate a treaty closely involves his foreing relations authority and therefore is not reviewable by the Supreme Court.


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