1. Topic 2.9 Legitimacy of the Judicial Branch
Unit 2: Interactions Among Branches of Government

2. Supreme Court & precedent
The Court typically is guided by the principle of stare decisis
“Let the decision stand”; follow precedent
Past decisions are usually followed, but the Court has overruled itself over 260 times
The Court makes policy whenever they reinterpret/overrule laws
Over 160 federal laws have been ruled unconstitutional

3. Martin v. Hunter’s Lessee (1816)
Facts: During the American Revolution, Virginia created laws allowing the state to seize property of Loyalists. In 1781, Denny Martin, a British subject, inherited land from his uncle, a Loyalist.
The following year, the Virginia legislature voided the land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter.
A federal treaty dictated that Lord Fairfax was entitled to the property. 
The Virginia Supreme Court upheld Virginia's law permitting the confiscation of property, even though it conflicted with the federal treaty.
The US Supreme Court reversed and remanded, holding that the treaty trumped state law.
Question: Did Virginia’s law trump the federal treaty?

4. Martin v. Hunter’s Lessee (1816)
Holding: Article III, Section 2, Clause 2 of the US Constitution (the Supremacy Clause) gives federal courts the power to review state court decisions that interpret federal law or the Constitution.
The Court rejected the claim that Virginia and the national government were equal sovereigns.
Relying on the Supremacy Clause, Justice Story held that federal interpretations of federal law should supersede state interpretations.
He reasoned that there should be uniform and predictable outcomes across all states.
How is the holding in this case similar to the holding in Marbury v. Madison, but how did this case expand judicial power even further?

5. executive privilege & SCOTUS
U. S. v Nixon (1974)
Facts: Nixon claimed that he didn’t have to comply with a subpoena because as president he had executive privilege, which allowed him to withhold confidential information from the other branches of government.
Question: Is the President's right to safeguard certain information, using "executive privilege,” entirely immune from judicial review?
Holding: No. While presidents have limited executive privilege in military and diplomatic areas, there is not unqualified executive privilege.
Recent Examples--Reading

6. The Roberts Court (2019) John Roberts 64 George W. Bush (R) 2005
Justice
Age
Appointed by
Year Appointed
John Roberts 64
George W. Bush (R)
2005
Clarence Thomas 70
George H.W. Bush (R)
1991
Ruth Bader Ginsburg 86
Bill Clinton (D)
1993
Stephen Breyer 80
1994
Samuel Alito 69
2006
Sonia Sotomayor
Barack Obama (D)
2009
Elena Kagan 59
2010
Neil Gorsuch 51
Donald Trump (R)
2017
Brett Kavanaugh 54
2018

8. Selecting judges for nomination
This is the president’s longest lasting influence (Senate confirms)
President wants judges who are ideologically similar to him. Factors a president considers:
Party identification
Political ideology
Judicial philosophy
Qualifications
Age
Gender
Race
Strategic retirements
Judges retire when a president from their party is in power
Desire to be replaced by somebody ideologically similar

9. President nominates judges while Congress in recessed
Recess appointments
President nominates judges while Congress in recessed
Sometimes used by president to fill court vacancies with judges who the Senate may not confirm
Recess appointment judges serve for 1 year and must be confirmed by Senate by then to remain in the position

10. NLRB v. Noel Canning (2014)
Facts: In January 2012, Obama made recess appointments for district court judges before the session of Congress began at the end of the month. However, during January the Senate met in pro forma (brief meetings sometimes less than 1 minute) every 3 business days.
Question: Was the Senate “in recess” when Obama made his recess appointments on January 4, 2012?
Holding: No. The 3 day break between pro forma sessions does not represent a significant break and cannot justify use of a recess appointment. Ten days was the appropriate lower limit to trigger the recess appointments clause.

11. Why did Senate Republicans execute this strategy?
NLRB v. Noel Canning (2014)
How did the ruling in NLRB v. Noel Canning limit the power of the president?
After Associate Justice Antonin Scalia unexpectedly passed away in early 2016, President Obama nominated Merrick Garland to replace him on the Supreme Court, however the Senate, controlled by the Republican Party at the time, refused to begin confirmation proceedings, preferring to wait until after the election.
Why did Senate Republicans execute this strategy?
In your opinion, is it okay that they allowed a seat on the Court to remain vacant for a year?
Mitch McConnell, Senate Majority Leader, recently said that if a vacancy were to open up on the Court during the 2020 the Senate would proceed with confirmation hearings. What accounts for this difference?