Constitutional Interpretation & Political Choice
Chief Justice John Marshall made constitutional law in McCulloch v. Maryland
constitutional law, or jurisprudence, consists of the prevailing meaning of the Constitution as
found mainly in decisions by the U.S. Supreme Court
these decisions are "legal," but the law the announce is not ordinary law; it is a fusing of politics,
history, and political philosophy
constitutional interpretation occurs when the Supreme Court and other courts decide cases that
require judges to give meaning to particular words and passages in the Constitution
cases are disputes handled by a court; they are the raw material of the judicial process
judicial review is the authority to set aside laws passed by Congress and the state legislatures as
being contrary to the constitution
A Changing Judiciary
Beginnings
the Court's first decade was characterized by obscurity, weakness and uncertainty
this was due to a high turnover in membership, absence of effective leadership, and few cases to
decide
early jurists, such as Robert Harrison, found other positions more appealing
Harrison was later reappointed by George Washington through a recess appointment
recess appointments allow the president to fill a vacancy when the Senate is not in session
it expires at the end of the next session unless the Senate has acted on the nomination
detracting from the attractiveness of the high bench was circuit riding (eliminated in 1891)
justices sat as judges of the circuit courts, one of the two types of lower federal courts established
by the Judiciary Act of 1789
The Court Comes of Age
the court had three chief justices in the first decade
John Marshall, called the "Great Chief Justice," helped shape the Supreme Court
he ended the practice of seriatim opinions, whereby each judge gave his view of the case
thus the court would speak with only one voice
Judicial Business in the Nineteenth Century
the bulk of the court's work at this time was non-constitutional in nature
private law cases vastly outnumbered public law cases
mostly involved admiralty and maritime issues, common-law matters, and diversity disputes
(diversity jurisdiction allows federal courts to hear some suits involving ordinary matters of state
law when parties are citizens of different states)
as a result, the court was largely a tribunal for the final settlement of disputes between individual
parties
The Modern Court
in 1891 Congress authorized intermediate appellate courts called circuit courts of appeal
for the first time, the federal judiciary had appellate tribunals below the supreme court
old circuit courts merged into district courts, and circuit riding ended
also introduced some certiorari, or discretionary, jurisdiction, meaning there were fewer
categories of cases the justices were legally obliged to hear; new courts of appeal became last
resort in most cases
Chief Justice Taft passes the Judges Bill, which expanded discretionary jurisdiction even more
he is also responsible for the construction of the supreme court building
today, public law consumes the court's docket
the court has become mainly a maker of public policy for uniform application
Appointment Politics
the selection of supreme court justices, as well as judges of the lower federal courts, belongs to
the president and the senate (the choice of the former requires the consent of the latter)
senators ordinarily employ greater scrutiny with review of justices
this is because the court's place in the political system and life tenure of the justices
most senatorial scrutiny occurs during hearings before the Judiciary Committee
three factors thrust the court into partisan life:
the role of interpretation
the significance of the decisions
method of judicial selection
CHAPTER ONE - Jurisdiction and Organization of the Federal Courts
The Judicial Power
Fifty-Two Judicial Systems
courts of the United States comprise of 52 separate courts: the court systems of the 50 states plus
the District of Columbia and the court system of the national government
the latter two, called federal courts, exist because of acts of Congress
the state courts derive their existence from the constitution and statutes of their respective states
almost everyone is simultaneously within the jurisdiction, or reach, of the two judicial systems.
jurisdiction refers to the authority a court has to decide a case
term has two basic dimensions: who and what
according to Article III, federal judicial power extends to:
cases arising under the constitution, the laws of the United States, and treaties made under the
authority of the United States
admiralty and maritime cases
controversies between two or more states
controversies to which the United States is a party
suits between citizens of different states
cases begun by a state against a citizen of another state or against another country
the Constitution vests this judicial power of the United States in "one Supreme Court and in such
inferior courts as the Congress may from time to time ordain and establish"
system of lower courts consists of:
a court of appeals for each other 11 judicial circuits, plus one for DC
98 district courts -- 89 in the 50 states plus one in DC and one in Puerto Rico
other courts, such as the Court of Appeals for the Federal Circuit
the Supreme Court, courts of appeals, and the district courts are known as Article III Courts
their judges are appointed by the president and confirmed by the senate, enjoy lifetime
appointment, and have no reduction in salary
specialized courts such as the Court of Federal Claims are Article I Courts
they were created by Congress in furtherance of a power granted by Article I
Congress has full power over the salary and tenure of these judges, and may assign legislative
duties
Jurisdiction of District Courts
the district courts are the trial courts of the federal judicial system
their original jurisdiction includes cases that raise a federal question and cases that involve more
than $75,000 where parties are citizens of different states
a court has original jurisdiction when a case begins or originates there
appellate jurisdiction is when a case involves review of a decision of a lower court
a federal question is one that involves the meaning or application of the constitution, statute, or
treaty
two independent bases of jurisdiction are provided:
the first is defined by the nature of the question
the second (diversity jurisdiction) is defined by the citizenship of the parties and the amount at
stake
district courts also have supervisory powers over bankruptcy courts within each district and
appellate jurisdiction with respect to a few classes of cases tried before magistrate judges
magistrate judges are judicial officers who issue search warrants and conduct arraignments of
persons charged with federal crimes and perform other duties assigned by their district court
Jurisdiction of the Court of Appeals
have jurisdiction in appeals taken from the district courts within their respective circuits
may also review cases from the district courts in territories (e.g. Guam)
for federal circuit, has more specialized jurisdiction; hears appeals in patent, trademark, and
copyright cases, and in certain administrative law matters from district courts in all circuits, and
in specified administrative bodies
Jurisdiction of the Supreme Court
two parts: original and appellate
original jurisdiction cannot be diminished or enlarged by Congress
it includes four kinds of disputes:
cases between one of the states and the national government
cases between two or more states
cases involving foreign ambassadors, minsters, or consuls
cases begun by a state against a citizen of another state or against another country
today, only cases between states qualify exclusively as original jurisdiction cases; for all others,
Congress has given concurrent jurisdiction to the lower federal courts
as a result, almost all of the Court's cases come from its appellate jurisdiction
the supreme court has appellate jurisdiction "in all other cases both...as to law and fact, with such
exceptions, and under such regulations as the Congress shall make"
Congress decides which categories of cases in the lower courts qualify for review by the Supreme
Court
the major change in appellate jurisdiction of the Supreme Court since 1789 has been in the
proportion of cases qualifying for obligatory as opposed to discretionary review
Judiciary Act of 1789 allowed Supreme Court review of certain cases form the state and lower
federal courts by way of a writ of error
passage of the Circuit Courts of Appeals Act allowed justices to gain some discretion over the
cases they would decide
the Judges Act of 1925 further reduced the mandatory jurisdiction
as a result, most cases raising a federal question reached the Court on certiorari ("to make sure")
review in this category was discretionary; justices could select cases they thought worthy of their
time
small number of cases came to the court on appeal
these cases qualified by statute for obligatory review without regard to the importance of the issue
raised or its impact on the government or the general public
in 1988, the Court's jurisdiction became almost entirely discretionary
now nearly every case comes to the Court on certiorari
mandatory appeal category is basically abolished, except for decisions by three-judge district
courts
these cases reach the Court on direct appeal, bypassing the courts of appeals
Self-Imposed Limitations on Judicial Power
before a federal court will accept jurisdiction, there must be an actual case or controversy
the conflict must be real, touching the parties who have adverse interests; must present a live
dispute
a case must be "ripe for review"; the ripeness requirement injects an element of timing in order to
avoid premature adjudication; controversy must have reached a certain stage of maturity before
the court will engage it
case or controversy requirements also means the federal courts will not render advisory opinion
an advisory opinion is a statement about a hypothetical situation or a statement indication how a
court would rule were litigation to develop
"standing to sue" focuses attention on whether the litigant is the proper party to bring the lawsuit
consists of three elements:
plaintiff must have suffered an "injury in fact"
a "causal connection" must exist between the injury and the conduct complained of
it must be "likely" and not merely "speculative" that the injury will be redressed by a
favorable decision
absence of a live controversy, ripeness, standing, or jurisdiction makes a case nonjusticiable, or
inappropriate for settlement by court
justiciability in turn merges into the political question doctrine
a political question is one that the court believes should be decided by the "political branches" of
the government--Congress or the presidency
judicial activists are those more eager to intervene and to substitute their views for policy-makers
they tend to gloss over matters of nonjusticiability as "technicalities"
judicial restraintists are those inclined to defer to decisions made elsewhere in the political
system
frequently avoid a decision on the merits by insisting the litigant has run afoul of one or more
rules
Supreme Court Decision-Making
Article III establishes "the judicial power of the United States" in one Supreme Court
since 1869, the size has been nine justices
justices reject more cases for review than they decide
Justices at Work
the work of the Supreme Court proceeds through five stages
agenda setting
briefs on the merits
oral argument
conference
opinions and decisions
Agenda Setting
petitions for review from litigants who lost in lower courts arrive in the form of briefs that
demonstrate why the Court should accept the case for decision arrive; litigants who won file
briefs in opposition
the rule of four states a minimum of four justices must vote to accept a case
(in capital cases, prisoner needs five votes to prevail)
at this stage,the United States is represented by the solicitor general, third ranking official in
justice dept
when an agency of the national government has lost a case in a court of appeals, it is the solicitor
general who makes the call whether to seek review in the Supreme Court
Chief Justice makes a "discuss list," and if cases don't make the list, they are denied
Briefs on the Merits
once the justices accepted a case, opposing counsel submit another round of briefs
focus not on why the Court should hear the case, but on the substantive issues the case presents
persons, governments, and organizations interested in but not parties to the case may file their
own briefs as amici curiae, or "friends of the Court"
non-governmental entities filing amici curiae must obtain permission of the opposing parties
the court may also grant permission
Oral Argument
Court listens to oral argument, each side getting a half hour except in extraordinary
circumstances
gives the justices a chance to ask questions and clear up uncertainties
oral arguments are open to the public
Conference
Wednesday and Friday are conference days
time set apart primarily for confidential discussion and decision of cases argued during the week
all ases are decided on by majority vote; the rule of five
Opinions and Decisions
write an opinion of the court representing the consensus of the majority
explains and applies the legal principles applicable to that case
when a majority of justices are unable to agree on a single opinion, a plurality opinion announces
the judgement of the court and explains the views of the plurality
the dissenters file one or more dissent opinions explaining their differences with the majority
justices may also write a concurring opinion to indicate their acceptance of the majority decision
but either an unwillingness to adopt all the reasoning contained in the opinion, or desire to say
additional
through this process, justices are assisted by law clerks
Reading a Supreme Court Decision
students often outline cases called briefing a case
in cases that reach the Court on certiorari the petitioner brings the case against the respondent
in cases on appeal, the appellant brings the case against he appellee
court can affirm or reverse the judgement of the lower court
when reversing, the justices will often remand (send back) a case to a lower court for action
consistent with the Court's decision
CHAPTER TWO - The Constitution, the Supreme Court, and Judicial Review
Granting and Limiting Power
Constitutionalism
- American constitutionalism is the belief in limiting government power by a written charter
the constitution provides no definition of either powers or limitations, nor does it state how its
words are to be interpreted
Separation of Powers
the first power limiting principle is the separation of powers
neither congress, the president, nor the judiciary may encroach on fields allocated to other
branches
departments must be kept separate and distinct, although their functions are mingled
Federalism
the second power limiting principle is federalism, a constitutional system in which two
authorities, each having a complete government system, exists in the same territory and act on the
same people
the national government exercises enumerated, implied, and inherent powers, with all others
being "reserved to the states respectively, or to the people"
each government is supreme within its own sphere; neither is supreme in the others' sphere
Founders called this intricate system free government
power is divided vertically between two governments; divided horizontally among separate
branches
governments will exercise control over each other, and also be checked by itself
Doctrine of Judicial Review
to correct abuses of power, Americans are not content to rely on political checks such as ballot
box
government is kept in bound by judicial review--the authority of the courts to set aside actions of
another branch of the government that conflict with the Constitution
The Framers
the supremacy clause declares the constitution is the "supreme law of the land"
national law thus will prevail when in conflict with state law
Robert Yates thought this would give the judges too much power
however, thanks to judicial review, the "intentions of the people" would prevail over the
"intentions of their agents"
Influences on Judicial Decision-Making
both legal and political factors influence judicial decision-making
legal: text of Constitution and statutes, procedural rules, etc.
political: public opinion, justice's personal beliefs, etc.
- in the legal model of decision-making, the text and precedent are determinate
- in the attitudinal model, personal preferences are more influential
the strategic model focuses on the importance of the collegial environment of the court, where
justices may seek to achieve certain goals not merely by voting their own preferences but by
taking the views of colleagues into account