Interesting Cases
Griswold v Connecticut (1965)
Miranda v Arizona (1967)
Engel v Vitale (1962)
Plessy v Ferguson (1986)
Brown v Board of Education (1954)
Baker v Carr (1962)
Bowers v Hardwick (1986)
City of Boerne v Flores (1993)
The Federal Courts
The Courts as Policy-Makers
• setting the agenda: the U.S. Supreme Court
-original jurisdiction
-appellate jurisdiction
-certiorari, the decision to review
a. “rule of four”
b. merits consciousness
c. cue theory
• The criteria of judicial policy-making
-the impact criterion
a. judicial review
b. judicial activism versus judicial restraint
-the compliance criterion -- desegregation of public schools
Merits Consciousness - the theory that
there is a link between a Supreme Court justice’s vote
[1] in favor of issuing a writ of certiorari,
or
[2] against issuing a writ of certiorari
on the one hand, and the justice’s vote to
[1] reverse the lower court’s decision
[2] affirm the lower court’s decision
based on the merits of the case on the other hand.
The theory implies that the justices may have already
determined how the case should be decided before oral
and written arguments are ever made before the Court.
Cue theory
– the theory contends that the probability that the Supreme
Court will hear a case on appeal increases as the number of “cues” that are
present increases. Some significant cues include:
[1] the federal government favors Supreme Court review of the case (or some
high-ranking federal official such as the president or attorney general publicly
endorses the Supreme Court reviewing the case);
[2] there are sharply differing or divided opinions expressed by justices on the
lower court or between two or more courts in the appeals process;
[3] a civil liberties or civil rights issue is raised by the dispute;
[4] it is a case in which the U.S. government is either a petitioner or respondent;
[5] it is a case raising an issue of federalism.
One recent study concluded that in cases in which no “cues” are present, there is
only a 7% probability that the Court will issue a writ of certiorari. However, in
cases in which at least three “cues” are present, the probability increases to 80%.
The Courts as Policy-Makers
Policy Impact Criterion – the Court’s
decision must have the potential to substantially
change or alter an existing policy or practice.
Compliance Criterion – the extent to which
the affected parties actually alter their behavior in
accordance with the Supreme Court’s decision
Marbury v. Madison
1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803)
Facts of the case: Shortly before the end of President Adam’s term, he nominated
Marbury and three others to be justices of the peace in the District of Columbia.
Their nominations were confirmed by the U.S. Senate and commissions signed by
the president, but the Secretary of State, John Marshall, had not delivered them.
Thomas Jefferson and his Secretary of State, James Madison, upon assuming their
offices after the election of 1800, refused to deliver the commissions, claiming that
delivery was necessary to complete the appointments. The four men asked the
Supreme Court, in the exercise of its original jurisdiction, to issue a writ of
mandamus, compelling Madison to deliver the commissions. Mandamus was not
sought from the lower courts.
Opinion of the Court: (delivered by Chief Justice John Marshall) ….Has the
applicant a right to the commission he demands?….[The court finds that as
Marbury’s appointment was complete he has a right to the commission.] ….If he
has [such] a right, and that right has been violated, do the laws of this country
afford him a remedy? ….[The court finds that they do.] ….It remains to be
inquired whether he is entitled to the remedy for which he applies? This depends
on 1st The nature of the writ applied for; and 2nd The power of this court.
Marbury v. Madison
Opinion of the Court (cont’d): ….1st ….This, then, is a plain case for
mandamus….and it only remains to be inquired, whether it can issue from this
court….
To enable this court, then, to issue a mandamus, it must be shown to be an exercise
of appellate jurisdiction…. It is the essential criterion of appellate jurisdiction, that
it revises and corrects the proceedings in a cause already instituted, and does not
create that cause…. To issue such a writ…. is, in effect, the same as to sustain an
original action for that paper, and therefore, seems not to belong to appellate, but
to original jurisdiction….
The authority….given to the Supreme Court, by the act [Judiciary Act of
1789]….to issue writs of mandamus….appears not to be warranted by the
Constitution; and it becomes necessary to inquire whether a jurisdiction so
conferred can be exercised….
The question, whether an act, repugnant to the constitution, can become the law of
the land, is a question deeply interesting….This original and supreme will (the
Constitution) organizes the government, and assigns to different departments their
respective powers. It may either stop here, or establish certain limits not to be
transcended by those departments.
Opinion of the Court (cont’d): ….The government of the United States is of the latter
description. The powers of the legislature are defined and limited; that those limits may not be
mistaken or forgotten, the constitution is written. To what purpose are powers limited….if these
limits may, at any time, be passed by those intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished…. It is a proposition too plain to be
contested, that the constitution controls any legislative act repugnant to it; or, that the legislature
may alter the constitution by an ordinary act…. The theory of every such government must be,
that an act of the legislature, repugnant to the constitution, is void…. If an act of the legislature,
repugnant to the constitution, is void, does it…. bind the courts, and oblige them to give it effect?
….It is emphatically the province and duty of the judicial department, to say what the law is…. If
two laws conflict with each other, the courts must decide on the operation of each. So if a law be
in opposition to the constitution; if both the law and the constitution apply to a particular case, so
that the court must decide that case, conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law…. If the courts are to regard the
constitution, and the constitution is superior to any ordinary act of the legislature, the
constitution, and not such ordinary act, must govern the case to which they both apply….
Editor’s Note: The Court holds that the Congress, in passing the Judiciary Act of 1789 and
giving the Supreme Court the authority to issue writs of mandamus, in effect, modified the
original jurisdiction of the Court. That jurisdiction is set by the Constitution and, therefore, may
only be altered by formal constitutional amendment. Marshall argues that, while Marbury has a
right to his commission, the Court does not have the authority to issue the requested writ. It
does, however, have the power to declare an Act of Congress void and unenforceable.
Judicial Review
Judicial review – the authority of a court to rule on the
constitutional validity of an action of another branch,
level, or institution of government. The implication of
judicial review is that the court(s) may void or declare
unenforceable the action of another branch of government.
Judicial Activism vs. Judicial Restraint
Judicial activism – a philosophy of judicial decisionmaking that reflects a willingness on the part of a justice
or a court to use it’s power of judicial review to void acts
of other branches of government that it deems contrary to
the Constitution
Judicial restraint – a philosophy of judicial decisionmaking that reflects a reluctance on the part of a justice or
a court to use it’s power of judicial review to void acts of
other branches of government that it deems contrary to the
Constitution
NOTE: The
distinction between an activist court and a restraining court has nothing
to do with political ideology [liberalism vs. conservatism].