The Role Of The Supreme Court - Constitutional Law: Fourteenth Amendment, Separation of Powers

The Role of the Supreme Court

• McCulloch (Strong Congress; weak states)

• Vieth (Kennedy concurrence): Is threat of a strong Court enough of a check, even if court not actually do anything?

Marbury v. Madison (1803)

• CJ Marshall

• Judicial Review: Conflict between Marshall’s reading of the Constitution and the statute, the statute must give way

• “Emphatically the province and duty of the judicial department to say what the law is."

• Merely setting courts as equal to other departments; defining the scope of courts and judicial review

• Departmentalist view of constitution: each branch has power to interpret constitution for various branches. (But Marshall not actually a departmentalist; giving power to courts over others)

• Why is this opinion so good:

  • Denies court has power to issue commission but grabs power for court.

  • If Jefferson ignored a court order, would have weakened the institution

  • Claiming power to review both branches.

• Compare Worcester v. Georgia (1832) and Jackson’s “John Marshall has made his decision; now let him enforce it!”

Southern Manifesto (1956): Response to Brown

• All but 3 southern senators sign

• Highly legal and measured document; Modes of Constitutional Argument:

  • Precedent/stare decisis

  • Original Constitution Text – no education mentioned

    • Bickel retort: no air force either

  • Originalism/History: debate on 14A not consider education

  • Consequentalist/Prudential: “Chaos and confusion”

  • Structural

  • Tradition/ethical: “against our ethos”

Cooper v. Aaron (1958)

• Signed by all 9 Justices. Strong statement of judicial role

• What is Marbury about in Cooper:

  • Judiciary is supreme in exposition of the law [though Marbury might have disagreed]

  • That principle has since been respected [but see Worcester v. Georgia]

  • Interpretation of 14A in Brown is supreme law of the land [No! Constitution is supreme law of the land; not one court’s interpretation]

  • State legislators committed oath to support constitution [but not Court’s interpretation?]

McCulloch v. Maryland (1819)

• Structural Interpretation of Constitution and repudiation of clause-bound method

• Scope of federal/congressional power.

• QP: Can Congress create federal bank? Can Maryland tax federal bank?

  • Question 1 not really implicated, but makes #2 much easier.

• QP1:

  • Power comes from the people, not from the states.

  • States possess broad police power; Congress only limited enumerated powers.

  • But Congress’s power comes from entire document, not just the words.

  • “It is a constitution we are expounding” – speaks in broad strokes.

  • Implied powers.

  • 10A: removed “expressly” from AoC -> Const. Therefore, allows implied powers

  • Art. 1 § 9: Limitations on Congress’s power

  • Art. 1 § 8: Enumerated powers, including Cl. 18 Necessary and Proper.

  • Intertextualism: “Necessary” versus “absolutely necessary” leads to a lesser threshold of necessary.

  • "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

• QP2: Can MD Tax Bank?

  • No – “the power to tax involves the power to destroy,”

  • Sticking its hand into the pocket of the Federal Government; one state taxing all the states. Tragedy of the commons.

  • Representation Reinforcement (see themes)

Marbury and McCulloch In Tension?

• Congressional Authority: Congress wins in McCulloch, loses in Marbury

  • McCulloch: Marshall jumps through hoops to defend congress.

Justiciability (Mostly judge-made doctrine!)

• Case and controversy (Article III, Section 2, Clause 1): No advisory opinions. Need standing.

  • Problems with Advisory opinions? Truth through adversarial process, vagueness of theoretical review, Judicial Ripeness (Bickel: wait for application)

  • Advisory opinions beneficial? Save time/$; judiciary as equal in lawmaking process; more neutral than OLC, WH Counsel

• Standing: (Not developed until 1920s)

  • Ability to bring suit

  • Ripeness and Mootness (When)

  • Political Question Doctrine (What)

• Injury in fact (not used in until 1970s)

Allen v. Wright (1984)

• Parents seeking IRS to stop tax exemption for segregated schools.

• Bob Jones University (1983): cannot be a charity if not integrated.

• Standing: (1) Injury traceable from (2) defendant’s allegedly unlawful behavior (3) likely to be redressed by relief.

  • [Compare Brown on Injury-in-fact]

• O’C Majority: No injury in fact; causality too weak – just too speculative. Executive should implement – separation of powers

• Brennan dissent: Finds sufficient casual standing; claims standing is a façade for merits

• Stevens: Money incentivizes things; government is subsidizing white flight – the harm was traceable to gov’t conduct.

Elk Grove v. Newdow (2004)

• 1A: “under god” in pledge. Holding: Standing.

• Father not have standing to bring on behalf of daughter because Mother has custody.

  • But see Brown – mother for students.

• Passive Virtues: See themes.

Political Question Doctrine

• Baker v. Carr (1962):

  • Hadn’t reapportioned in 60 years; state legislators have no incentive to vote selves out of office.

  • Broad interpretation of judicial authority: “responsibility of this court as ultimate interpreter of the Constitution”

  • Previously, Luther v. Borden (1849: Guaranty Clause); Colegrove v. Green: (1946) 4-3: FFF “Courts ought not to enter this political thicket”

  • Now, 14A: Equal Protection!

  • Political Question Doctrine:

  • 1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions"
    2. "A lack of judicially discoverable and manageable standards for resolving it;"
    3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"
    4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"
    5. "An unusual need for unquestioning adherence to a political decision already made;"
    6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question."

  • FFF Dissent

• Reynolds v. Sims (1964): one person, one vote

  • Importance of decisions on doctrine in downstream cases. (EP, not guaranty)

  • State legislature districts have to be roughly proportionate.

  • CJ Warren: How appended constitutional text modifies old text…

  • "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic...