POL201 Week 3 Discussion 2

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7 The Judiciary

Steve Petteway, Collection of the Supreme Court of the United States

The Supreme Court justices in 2010. Associate Justice Antonin Scalia (front row, second from left) passed away February 13, 2016.

Learning Objectives

By the end of this chapter, you should be able to

• Describe the constitutional basis for the judicial branch of government. • Describe the organization and function of the federal courts. • Outline the selection of federal judges. • Describe how the Supreme Court operates. • Explain how the development and use of judicial review helped the Supreme Court establish a

broad role for itself. • Outline the Supreme Court’s place in a separation of powers system. • Analyze court decision making focusing on judicial activism and judicial restraint.

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On June 26, 2015, the U.S. Supreme Court decided, in Obergefell v. Hodges, that the Due Pro- cess and Equal Protection clauses of the 14th Amendment required states to allow same-sex couples to marry and to recognize same-sex marriage performed in other states. (These clauses are discussed further in Chapter 8.) Two years earlier, the Court decided two same- sex marriage cases focusing on related issues. In one case, Hollingsworth v. Perry, the Court decided that California’s Proposition 8 was unconstitutional. Proposition 8, which was added to California’s constitution in 2008 through a citizen initiative, stated that only marriages between one man and one woman would be recognized as valid. In U.S. v. Windsor, the U.S. Supreme Court decided that the federal Defense of Marriage Act, which defined marriage as between one man and one woman, violated the Fifth Amendment’s Due Process Clause.

These three cases have in common central questions about how marriage is defined in the United States and the benefits and opportunities associated with legal marriage. At the same time, these three cases demonstrate the U.S. Supreme Court’s power in interpreting key con- stitutional provisions. In Obergefell and Hollingsworth, the U.S. Supreme Court interpreted the Equal Protection and Due Process clauses of the 14th Amendment, while in Windsor the U.S. Supreme Court based its decision on the Due Process Clause of the Fifth Amendment. In all three cases, the Court was using its power of judicial review, the power to interpret the meaning of the U.S. Constitution and its amendments, in ways that changed the legal and social landscape around marriage, which is an institution older than the Constitution itself.

At the same time, each decision was decided 5–4. Had one person voted differently in any of these cases, the outcome would have been differ- ent. Specifically, the outcome would have retained marriage as being defined as an institution between one man and one woman. The legal rights and benefits associated with marriage between one man and one woman would not have been extended to same-sex couples. Still, three 5–4 decisions suggest that this matter is not settled. Other circumstances related to same-sex marriage not covered in these three cases, such as divorce, child cus- tody, adoption, and surrogacy, may emerge over the next few years. Changes in the U.S. Supreme Court are expected as members retire or pass away and presidents replace them, often with persons whose constitutional points of view reflect their own. Should one of these issues emerge and the U.S. Supreme Court agree to hear it, the Court’s role in interpreting the Constitution, and in clarifying the opportunities and benefits associated with legal marriage, will continue.

The question of whether the Supreme Court reaches beyond its intended power or respects the legislative process as reflecting the will of the people goes to the heart of the debate about

Associated Press/Paul Morigi

Challengers to California’s Proposition 8 rally during the Hollingsworth v. Perry hearing in 2013. The U.S. Supreme Court ruled that Proposition 8 was unconsti- tutional, allowing same-sex marriages to be recognized in California.

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Section 7.1 The Constitutional Basis for a Judicial Branch

the Court’s power. Should the Court make law through case decisions, or should the Court leave lawmaking to Congress and the state legislatures and restrict itself to interpreting the law? At the center of the controversy is the question of just what the Supreme Court’s role in American society should be.

The Supreme Court is the highest court in the land. But it sits at the top of an entire hierarchy, known as the federal judiciary. In this chapter, we take a look at the history of the judiciary up to its modern-day function, giving particular attention to how it has carved out its role in the federal government.

7.1 The Constitutional Basis for a Judicial Branch

The Constitution states that there will be one Supreme Court and additional lower courts if Congress chooses to create them. It also establishes that judges will be appointed to the federal bench by the president, subject to confirmation by the Senate through its “advise and consent” role established in Article II. Once appointed, federal judges and Supreme Court jus- tices serve for life “with good behavior.”

The Constitution is otherwise unclear about the role of the judiciary. The Framers expressed several ideas about what the Supreme Court should do. One idea was that the Supreme Court should determine whether laws were constitutional. Another idea was that the Supreme Court could offer legal advice to the president and members of Congress upon request. In the nation’s early years, the Supreme Court actually did this, but in the interest of maintaining the separation of powers, it stopped and sent President Washington a message informing him it was confident that his judgment would discern what was right.

Article III

Article III of the Constitution says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Supreme Court is the only judicial institution that is created by the Consti- tution, while the lower courts are created by Congress.

Article III makes it clear that the Framers assumed most trials would take place in state courts and not in federal courts:

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been com- mitted; but when not within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

If states were responsible for trying criminal wrongdoing, what were the federal courts sup- posed to do?

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Section 7.2 Jurisdiction and the Federal Court Structure

The Least Dangerous Branch

In Federalist No. 78, Alexander Hamilton famously asserted that the judiciary would be the least dangerous branch of government because it would possess neither the power of the sword nor the power of the purse:

[T]he judiciary, from the nature of its function, will always be the least dan- gerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society, and can take no active resolution whatever.

The power of the sword refers to the president’s power to be commander in chief of the armed forces as well as having the primary responsibility to enforce the laws. In noting that the Supreme Court does not have the power of the sword, Hamilton acknowledged that the judi- ciary has no mechanism to enforce its rulings; rather, it has to rely on the executive to enforce its decisions. In noting that it also lacks the power of the purse, Hamilton acknowledged that Court rulings that may require the appropriation of money would rely on the approval of Con- gress. All the judiciary can realistically do is issue an opinion on a matter and hope that the other two branches of government see fit to enforce it. In essence, Congress and the president will support Court rulings because doing so appeals to their sense of what is right.

Hamilton suggested that the judiciary cannot be dangerous because it has to rely on the other two branches for its authority. The other two branches must see its rulings as reasonable. It is only in this way that the Court will have authority.

7.2 Jurisdiction and the Federal Court Structure

The United States enjoys a dual court system, with hierarchies of courts at both the state and federal levels. State courts have jurisdiction (authority) over matters that are governed by state laws, and each state has its own court system. Because Article III gives it the power to establish inferior courts, Congress determines the jurisdiction of the federal court system.

At the federal level, the Constitution mentions only one Supreme Court, but the judiciary is an entire bureaucracy unto itself. Like all bureaucracies, it is hierarchical. At the top sits the Supreme Court, headed by the chief justice (Figure 7.1). Just beneath the Supreme Court sit the United States Courts of Appeals, and below them sit the district courts and specialty courts that include international trade, tax, veterans’ affairs, federal claims, and military review courts. The work of lower courts is subject to the review of higher courts. This federal court structure is entirely a creation of Congress.

Figure 7.1: Federal court structure

The federal court system consists of three levels of courts.

Photo credits: Kristy Tillotson/iStock/Thinkstock; Comstock/Stockbyte/Thinkstock; Jupiterimages/Stockbyte/Thinkstock

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Section 7.2 Jurisdiction and the Federal Court Structure

The Least Dangerous Branch

7.2 Jurisdiction and the Federal Court Structure

Figure 7.1: Federal court structure

The federal court system consists of three levels of courts.

Photo credits: Kristy Tillotson/iStock/Thinkstock; Comstock/Stockbyte/Thinkstock; Jupiterimages/Stockbyte/Thinkstock

Judiciary Act of 1789

The foundation for the U.S. judicial system lies in the Judiciary Act of 1789. It established that the Supreme Court would consist of one chief justice and five associate justices. The number of justices was never fixed in the Constitution but was left to the discretion of Congress, and today the Supreme Court has eight associate justices plus the chief justice. The Judiciary Act also established that the Supreme Court would sit in two sessions each year, with the first beginning in February and the second beginning in August. Today, there is only one session, which begins in October and ends in late June or soon thereafter.

The Judiciary Act divided the country into 13 districts and established a district court in each. It also divided the country into three circuits (Eastern, Middle, Southern) for the purposes of appeal. Congress determined which states would fall into which districts and which districts would fall into which circuits. For example, there was the district of New York, the district of Pennsylvania, and the district of New Jersey. Each state comprised one district, except for Massachusetts and Virginia, which comprised two districts.

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Section 7.2 Jurisdiction and the Federal Court Structure

In the early days of the republic, the circuit courts did not have their own judges; rather, Supreme Court justices would “ride the circuit” and preside over court proceedings when the Supreme Court was not in session. Today, each circuit has its own judges, but each Supreme Court justice is still assigned to a circuit to be on hand to address urgent matters. This often happens in capital cases when someone on death row makes a last-minute appeal for a stay of execution, which the justice responsible for that circuit can decide without calling the entire court back into session.

Also created by the Judiciary Act was the office of the attorney general, which is responsible for representing the United States before the Supreme Court. In addition, it created a U.S. attorney and U.S. marshal for each district and authorized citizens to represent themselves or to be represented by attorneys in federal court. The person who is now responsible for repre- senting the United States before the Supreme Court is called the solicitor general. According to the U.S. Department of Justice,

The task of the Office of the Solicitor General is to supervise and conduct gov- ernment litigation in the United States Supreme Court. Virtually all such liti- gation is channeled through the Office of the Solicitor General and is actively conducted by the Office. (2014, para. 1)

The Federal Court System Today

The federal system still consists of three court levels: the district court (also known as trial court), the circuit courts of appeals, and the Supreme Court. The district courts are where cases originate; they are the entry points into the federal court system, and their purpose is to host federal trials. There are 94 district courts nationwide, with at least one in each state, and up to four districts in the most populous states such as New York and California. District courts do not cross state lines.

The losing parties in federal district court have an automatic right to appeal, or apply to a higher court—in this case, the circuit courts of appeals—to review and reverse the decision. The circuit courts of appeals are also known as appellate courts. There are now 12 circuits in the United States, and each covers several states (see Figure 7.2). In addition to these regional circuits, there is a federal circuit court of appeals. Only one judge presides over district trials, while three judges preside over the appellate court. Congress initially set the size of the first U.S. Supreme Court at six justices, although the number of justices varied between six and 10 until 1869, when the number of justices was fixed at nine. Congress also determined how many courtrooms there will be in each district and whether there ought to be additional lay- ers of courts.

In practical terms, this structure means that a suspect is first tried in a district court. If con- victed, the person may appeal to the circuit court. If the circuit court upholds the conviction, the conviction can be appealed to the Supreme Court. The Supreme Court then decides whether it wants to consider the appeal. This process gives the Supreme Court authority over the lower courts. But if it wanted to, Congress could create a court between the Supreme Court and the circuit courts to decide whether a case would reach the Supreme Court, thereby narrowing the authority and jurisdiction of the Supreme Court.

Figure 7.2: Federal court circuits

There are 13 circuit courts in the federal court system: 11 multi-state circuits, the D.C. circuit, and the federal circuit court of appeals.

From “U.S. Federal Courts Circuit Map,” by Administrative Office of the U.S. Courts, n.d. (www.uscourts.gov/file/document/us-federal- courts-circuit-map).

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www.uscourts.gov/file/document/us-federal-courts-circuit-map

Section 7.2 Jurisdiction and the Federal Court Structure

The Federal Court System Today

Figure 7.2: Federal court circuits

There are 13 circuit courts in the federal court system: 11 multi-state circuits, the D.C. circuit, and the federal circuit court of appeals.

From “U.S. Federal Courts Circuit Map,” by Administrative Office of the U.S. Courts, n.d. (www.uscourts.gov/file/document/us-federal- courts-circuit-map).

District Courts and Original Jurisdiction District courts serve as both courts of original jurisdiction because these are the courts where both civil and criminal cases are tried for the first time. District courts also serve as appeals courts if state courts have ruled on a matter that is later appealed. When serving as trial courts, district courts generally determine the guilt or innocence of a defendant (matters of “fact”) rather than the validity of any law. As an example, a suspect charged with a federal hate crime would be tried first in a district court. This court would determine whether the suspect committed a crime, but in this role it would not determine whether the federal hate crimes law is constitutional, nor would this court interpret the meaning of the federal hate crimes law. Similarly, in a civil suit between an individual and a corporation, the district court would determine whether the corporation was guilty of the accusation levied by its accuser.

There are some cases where district courts, in their capacity as courts of original jurisdic- tion, do decide matters of law. For instance, following passage of the 2010 Affordable Care Act, a coalition of states immediately sought to block its implementation on the grounds that requiring individuals to purchase health insurance is unconstitutional. In January 2011, a federal district court in Florida ruled that key provisions of the law, most notably the indi- vidual mandate, the requirement that individuals maintain health coverage for themselves

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www.uscourts.gov/file/document/us-federal-courts-circuit-map

Section 7.2 Jurisdiction and the Federal Court Structure

and their dependents, were unconstitutional but did not prevent its implementation, pending an appeal.

Another quality unique to district courts is that cases tried in these courts involve juries, while circuit courts of appeals and the U.S. Supreme Court involve only judges. The concept of jury trials is found in the Sixth Amendment, which states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Additionally, the Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dol- lars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the Common law.

The accused in criminal prosecutions are tried by impartial juries in the district where the crime occurred. For example, the trial of a person accused of committing a federal crime in Arizona would be held in the Federal District Court of Arizona. Defendants in civil cases also have the right to a trial by jury in the district in which the allegation originates. If employ- ees of a large Washington state-based corporation bring a class-action lawsuit against their employer, this group is entitled to have a jury trial in a Washington state district court.

The second part of the Seventh Amendment suggests that the jury determines matters of guilt, innocence, or liability. The idea that no other jury will hear the case suggests that appeals are heard by judges only. In both criminal and civil cases, this would seem to make sense. Because appellate courts are courts of law, which do not determine guilt or innocence, then judges alone are deemed to be the best equipped to make decisions. In courts of fact, by contrast, judges need to serve as referees for juries that weigh evidence.

In addition to district courts, the Supreme Court also serves as a court of original jurisdiction in some cases. Article III of the Constitution outlines cases where the Supreme Court serves as the court of original jurisdiction. These include disputes between states, between the states and the national government, and between the U.S. government and foreign govern- ments. Original jurisdiction means that all cases in these categories are referred directly to the Supreme Court. A federal court is also said to have “federal question” jurisdiction, which means that it hears cases that touch the Constitution or other federal laws.

Appellate Courts An appellate court is the next level in the judicial hierarchy after a court of original jurisdic- tion. A person who is convicted of a federal crime or who loses a civil suit in district court can appeal to the U.S. Court of Appeals. While district courts decide liability, guilt, or innocence, appellate courts decide whether proper legal procedures were followed during the district court trial, or whether the law was properly applied by the district court judge. If the U.S. Court of Appeals concludes that errors of law were made in the trial, it may overrule the lower court or return the matter to the district court for further action, which might include a retrial.

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Section 7.3 Selection of Federal Judges

The Supreme Court After being argued in the U.S. Court of Appeals, cases can be further appealed to the Supreme Court. The Supreme Court may choose the cases that come before it, and most cases that are petitioned to the Court are not heard by it. If the Court rejects a case on appeal, the U.S. Court of Appeals decision stands. The Court operates on the rule of four: If four justices want to hear a case, the entire Supreme Court will hear it.

Like the U.S. Court of Appeals, the Supreme Court decides matters of law, which emphasize matters of constitutionality and statutory interpretation. While the lower appellate court is concerned with whether the law was properly applied at trial, the Supreme Court focuses on whether the law upon which the lower court’s decision was made is constitutional. Statu- tory interpretation occurs when the Court decides what a law means. Because of the way that the Supreme Court decides cases, we get an understanding of the Consti- tution’s meaning and the scope of its authority.

7.3 Selection of Federal Judges

Article II, Section 2 of the Constitution states that the president “shall have Power, by and with the Advice and Consent of the Senate [and] . . . shall appoint . . . Judges of the Supreme Court and all other Officers of the United States.” Otherwise, the Constitution is silent on matters of judi- cial selection or qualifications to serve on the federal bench. However, recall that the Consti- tution gives Congress authority over the lower courts. Judicial selection is therefore a shared power between the president and the U.S. Senate. The Framers of the Constitution wanted to ensure that both would have a role in judicial selection and that neither would be able to con- trol the judiciary once appointments were made. At the same time, the Constitution is silent about how the Senate advises the president. Because the judiciary is a large institution with many judicial appointments to be made, the process of judicial selection is more involved than it appears.

The Nominating Process

For the Supreme Court, a potential justice is identified by either a team in the Justice Depart- ment or the White House Office of Legal Counsel. In some cases, a joint committee composed of White House and Justice Department officials will identify potential nominees and screen

The Supreme Court is the final voice on matters of constitutionality and conducts hearings in the U.S. Supreme Court building in Washington, D.C.

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Section 7.3 Selection of Federal Judges

them. A list is prepared for the president, who may opt to meet with prospective nominees. Once someone has been nominated, the FBI performs a background check, and the American Bar Association (ABA) provides an advisory evaluation. The nomination is then sent to the Senate, which refers the matter to the Senate Judiciary Committee for hearings. Hearings are then held, before which a variety of groups may testify either for or against the nomination. Although the Judiciary Committee votes first, a negative vote in the committee does not nec- essarily kill the nomination because the Judiciary Committee’s vote is a recommendation to the full Senate. The full Senate is responsible for confirming Supreme Court nominees.

Most Americans are familiar with high-profile confirmation hearings for Supreme Court nominees. But the president makes hundreds of other judicial appointments that usually go unnoticed. The same process is used, with modifications, for judges nominated to a U.S. Court of Appeals. At the district level, the review process almost mirrors a typical job application. Persons wanting to be district court judges contact their senators seeking appointments. As a matter of sena- torial courtesy, senators will defer to one of the senators of the state where the district court is located. Senators will most likely defer to senators from their same politi- cal party. If either senator is of the same political party as the presi- dent, the president will be more likely to honor the senators’ recommendation for a judgeship, although the Senate may hold up nominations for political reasons. Like justices for the U.S. Supreme Court, district court justices must be confirmed.

Who Is Qualified to Be a Judge?

The Constitution does not establish any specific qualifications to sit on the federal bench. By tradition, judges have been lawyers, but it is not an absolute requirement that judges hold law degrees or know the law.

The Role of Judicial Experience In recent years, though not historically, it has been common to appoint Supreme Court jus- tices with prior judicial experience, particularly on the U.S. Courts of Appeals. As examples, Abraham Lincoln appointed his treasury secretary and rival for the presidency, Salmon Chase, to be chief justice. (In fact, it was Chase who expanded the title from Chief Justice of the

Associated Press/Pablo Martinez

Supreme Court Associate Justice nominee Elena Kagan at her confirmation hearing before the Senate Judiciary Committee in June 2010. The president nominates justices, and the Senate either confirms or denies their appointments following nomination hearings con- ducted by the Senate Judiciary Committee.

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Section 7.3 Selection of Federal Judges

Supreme Court to Chief Justice of the United States.) Franklin Roosevelt appointed several people to the Supreme Court with no prior judicial experience, including Hugo Black, Robert Jackson, Frank Murphy, and William Douglas. Black had served as a U.S. senator from Ala- bama, both Jackson and Murphy had been attorneys general under Roosevelt, and Douglas was a professor of law at Yale. Roosevelt also appointed Felix Frankfurter, who had been a professor of law at Harvard.

Appointing justices with prior judicial experience has been quite common. In the early part of the 20th century, Chief Justice William Howard Taft was both a former state Supreme Court justice and a solicitor general, but he had also served as president of the United States, and Chief Justice Charles Evans Hughes had 20 years earlier been an associate justice on the Supreme Court. He resigned in 1916 to run as the Republican presidential candidate against Woodrow Wilson, to whom he lost.

Today, most, though not all, nominees bring a judicial background. In 2005, President George W. Bush nomi- nated Harriet Miers, his White House counsel, who had never served as a judge and had little public sector or academic legal experience. Following intense criti- cism that she was not well qualified, she withdrew her name from consideration. Even more recently, Presi- dent Obama appointed Elena Kagan in 2010. Kagan was serving as his solicitor general at the time. Prior to that, she had been the dean of Harvard Law School.

The Role of Ideology One school of thought suggests that judges should be selected and evaluated based on their qualifications alone, and that ideology should play no role. But ideology has historically played a role in both the president’s selection and the Senate’s evaluation of nominees. Presidents tend to select judges who share their views, and members of the Senate either confirm or fail to confirm on the basis of ideology as well.

Law professor Erwin Chemerinsky (2003) has suggested that there are three models for eval- uating and selecting judges. The first model, known as the professional qualifications model, holds that judges should be evaluated based on their credentials, such as their education, the nature of their legal practice, their prior judicial experience (if any), and anything else that would indicate their ability to serve as a judge. Consistent with this model, the American Bar Association rates judicial candidates based on their “integrity, professional competence and judicial temperament.” When the Senate Judiciary Committee takes up judicial appointments, it relies heavily on ABA ratings, even though it has no legal obligation to do so.

The second model is known as the judging skills model, whereby a candidate’s skills as a judge are examined, assuming this person has prior experience. Those who support this approach

SuperStock

William Howard Taft served as presi- dent of the United States from 1909 to 1913 and later became the 10th chief justice of the Supreme Court, from 1921 to 1930. He is the only person to have held both offices.

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Section 7.4 How the Supreme Court Operates

look at how a judge uses precedent (in other words, how he or she uses past court decisions as a guide for decision making), the quality of his or her written opinions, and his or her temperament on the bench. Using this approach, an issue that might arise would be whether a nominee’s previous judicial rulings were overturned by the higher court. Some might infer that a record of overturned opinions suggests poor quality or incorrect interpretation of law.

The third model is the ideological orientation model, whereby the ideological orientation of the nominee is expressly considered in the selection process. This means that one’s views on important issues, such as abortion, would be considered.

Presidents look for different qualities in a judge, but perhaps the most important qualifica- tion is that judicial candidates share the same worldview or hold a judicial philosophy shared with the president. Presidents usually consider ideology and political party when making appointments. Franklin Roosevelt, for instance, wanted judges whom he could count on to uphold the constitutionality of the New Deal, while Republican presidents Richard Nixon, Ronald Reagan, and George W. Bush wanted conservative judges. President Reagan sought justices who would, in his view, interpret the law and not make it. This meant that if a legisla- ture wanted to allow school prayer, the judge would be willing to defer to the legislative body that passed such a law. President Bill Clinton, on the other hand, sought to appoint judges who were pro-choice on the abortion issue. This was taken to mean that Clinton wanted judges who would be ready to strike down laws as unconstitutional if they were considered to be in violation of previous Supreme Court precedents supporting abortion rights.

7.4 How the Supreme Court Operates

The Supreme Court operates according to its own rules. Generally, the justices meet to decide which cases to hear (the “rule of four,” discussed earlier). For each case that the Court hears, each side is given 30 minutes to make its argument, and during that time each justice is free to ask questions. If answering questions takes up 10 minutes, for instance, then only 20 minutes are left to argue. Lawyers are cut off when their time is up.

Writing Opinions

After hearing a case, the justices meet and vote on a ruling. The chief justice, if he or she is in the majority, usually assigns either him- or herself or another justice in the majority to write the opinion for the Court. The most senior person in the minority then assigns him- or herself or another justice in the minority to write a dissent, where this person explains the minority’s position. Members of the majority are also free to attach to the majority opinion a concurring opinion, where they express agreement with the majority opinion but use dif- ferent reasons for their conclusions. Similarly, justices in the minority may write concurring dissents.

Once an opinion is written, the chief justice or a spokesperson for the Court will announce the ruling. Announcing the ruling is not a requirement of Supreme Court procedure; rather, the Court chooses to make its public position known when it releases its written opinions. A

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Section 7.5 Establishing Judicial Review and the Role of the Supreme Court

written opinion, however, is useful because it helps establish precedents that will guide future judicial decision making. Also, by writing an opinion, the Supreme Court produces a guide for the application of law by lower courts.

When the Court hands down a rul- ing, the opinion of the majority is the official opinion of the Court. The majority opinion requires a major- ity of justices, usually five, which means that there can be decisions in which a significant minority dis- agrees. That each case has majority, dissenting, and concurring opin- ions demonstrates the possibility that there will be wide disagree- ment over the meaning of the Con- stitution. It also sets the stage for political battles on the Court, in Congress, and in American politics more generally.

Role of Court Staff

Law clerks make up the key staff members in the judiciary. These clerks assist judges in researching and writing opinions. Each Supreme Court justice hires three clerks for a 1-year period each. These clerks are usually recent graduates of the best law schools in the country. They do much of the research and, depending on the justice, can do much, if not all, of the drafting of the opinions. (Some justices like to write their own opinions, but others prefer to have their clerks write preliminary drafts, which they in turn will edit and adjust into final form.) The clerks’ other responsibilities include legal research, checking citations, coordina- tion of scheduling and other legal matters with lawyers, and drafting memoranda to the jus- tice in which they summarize the facts of the case, the arguments of each side, and suggested holdings.

The first Supreme Court justice to hire a clerk was Horace Gray in 1882. Other justices began to adopt Gray’s practice, and Congress began to appropriate funds for clerks in 1919. In 1930, Congress began to appropriate money for a law clerk position for each U.S. Courts of Appeals judge and a few years later for each district court judge.

7.5 Establishing Judicial Review and the Role of the Supreme Court

The constitutional ambiguity of the judiciary leads to numerous questions. Did the Framers mean for the Supreme Court to only offer advice? Or did they want the Court to strike down acts of Congress and actions of the president that it found to be unconstitutional? If it could

The Supreme Court holds hearings inside the cham- bers of the U.S. Supreme Court building. Tradition holds that, when the Supreme Court meets, the most recently appointed justice serves coffee to the rest of the justices.

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Section 7.5 Establishing Judicial Review and the Role of the Supreme Court

strike down actions, could the Court then order Congress or the president, or even both, to desist from their actions? And if this authority existed, did it apply only to the national gov- ernment, or did it extend to the states as well? These questions were articulated by Alexander Hamilton in Federalist No. 78, which suggests that the Framers were not wholly in agreement on the Court’s role in a checks and balances system.

Judicial review means that an action or a law has been evaluated to determine if it is con- stitutional. However, it was not initially clear that judicial review was the sole province of the Supreme Court or lower courts. Article III of the U.S. Constitution outlines the makeup and powers of the U.S. Supreme Court, the highest national court, while giving Congress the power to create all federal courts below it. The Constitution gives the Supreme Court original jurisdiction, meaning the Supreme Court is the first to hear certain cases, such as controver- sies between two states or cases involving ambassadors, and appellate jurisdiction, where the Court will consider appeals on cases decided by lower courts.

The Framers did not intend for the Supreme Court to be equal in power to the legislative or executive branches. After all, Court members are not elected, they serve life terms, and there are no identified qualifications for office. Alexander Hamilton wrote in Federalist No. 78 that the Supreme Court should have the power to declare acts of Congress “null and void” even though the Constitution does not establish this power for any branch of government.

The first test of the Supreme Court’s authority came in Marbury v. Madison (1803). The case revolved around a series of late-term appointments of 58 circuit court judges and justices of the peace created by the 1801 Judiciary Act. Although confirmed by the Senate, the appoint- ments were not considered complete until the commissions were formally delivered to the appointees.

Universal Images Group/SuperStock

President John Adams’s (right) late-term appointments of several judges led to Secretary of State James Madison (left) arguing in Marbury v. Madi- son that the appointments were illegitimate. The case would be the first real test of the authority of the Supreme Court.

Photos.com/Thinkstock

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Section 7.5 Establishing Judicial Review and the Role of the Supreme Court

The commissions were supposed to be delivered by John Marshall, although he was unable to complete the task before Adams left office. Marshall assumed that incoming Secretary of State James Madison would deliver the remaining commissions. One of the appointees, William Marbury, did not receive his commission.

Upon taking office on March 4, 1801, President Thomas Jefferson’s staff refused to deliver Marbury’s commission on the grounds that it was not valid once Adams left office. Jefferson alleged that the appointments were an attempt to stack the courts with Federalist judges.

The 1789 Judiciary Act stated that if the administration failed to deliver a commission, the appointee could petition the Supreme Court for an order from the court (writ of mandamus). The power to issue writs of mandamus would imply that the Supreme Court had the authority to order the administration to deliver the commission. Marbury asked the Supreme Court for a writ of mandamus to compel Madison to deliver the commission.

Chief Justice John Marshall and the Court found itself between a rock and a hard place. If the Court ordered Madison to deliver the commission, he would likely refuse out of loyalty to Jefferson, which would render the Court weak and ineffective. If the Court refused to take action, it would expose itself as powerless and irrelevant. To give meaning to the concept of judicial review, the Court had to act.

In a narrow sense, the issue before the Court was whether the Supreme Court was the proper court to issue a writ of mandamus. Writing for the Court, Mar- shall took a balanced yet political approach. Marshall agreed that the executive branch’s actions were inap- propriate, although he also understood that he could not compel Madison to deliver the commission. Mar- shall struck down as unconstitutional the Judiciary Act provision requiring the Supreme Court to issue writs of mandamus under these circumstances because Section 13 added to the Court’s original jurisdiction authority. In doing so, Marshall established the prec- edent of judicial review. In taking this position, the Court invalidated an act of Congress while avoiding a confrontation with the executive that it might have lost. Marbury v. Madison also marked an important beginning for the Supreme Court by mak- ing clear where the Supreme Court would fit into the larger separation of powers and checks and balances system.

Fletcher v. Peck (1810)

While Marbury v. Madison established the precedent for the Supreme Court to strike down actions of the national government, it did not establish whether judicial review extended to the states. The 1789 Judiciary Act made it clear that a state action, such as a law or court

Portrait by Henry Inman

U.S. Supreme Court Justice John Mar- shall led the hearing in Marbury v. Madison. The ruling of the Supreme Court largely created the author- ity of constitutional review for the Court.

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Section 7.5 Establishing Judicial Review and the Role of the Supreme Court

decision, could be “re-examined and reversed or affirmed in the Supreme Court of the United States” (Judiciary Act of 1789, 2012). Because the Judiciary Act was passed by Congress and signed into law by the president, it was the supreme law of the land under the Constitution’s Supremacy Clause.

The Supreme Court addressed extending judicial review to the states in Fletcher v. Peck in 1810. This case involved the Yazoo Land scandal in Georgia. In 1795, the Georgia legislature had sold huge tracts of public land, comprising what are now the states of Alabama and Mis- sissippi, to private parties who in turn divided the land into smaller parcels to be sold to indi- viduals. After the sale, it was discovered that all but one of the Georgia state legislature mem- bers had been bribed to vote for the sale. A newly elected state legislature voted to rescind the initial sale to the developer. This caused problems because the original purchasers had already sold millions of acres to presumably innocent individuals. If the initial sale was rescinded, then these people’s land titles would be revoked and they would be left with uncompensated losses.

At issue for the Supreme Court was the validity of the third parties’ titles. Why should innocent individuals be punished because they bought land that had been obtained illegally? The landowners’ argument before the Court was that rescinding the original sale was a violation of the Constitution and the third-party titles were in fact legitimate. For the Court, the con- stitutional issue was the meaning of the Con- tract Clause, found in Article I, Section 10, that contracts must be respected by governments. If contracts were not respected, there would be no basis for free exchange. Ultimately, the Mar- shall Court ruled unanimously against the state and held that the Georgia state legislature’s attempt to rescind the sale was a violation of the Contract Clause.

By ruling in this case, the Supreme Court extended its authority of judicial review to apply to state governments. This was a critical

case because it established the first clear precedent that the U.S. Supreme Court could hold state laws unconstitutional.

Political scientist Robert McCloskey (2010) argued that the Fletcher decision marked the “end of the beginning” of the Supreme Court’s struggle to find its place in the American political system. Not only had the Court claimed the power of judicial review in theory, but it had applied it in concrete cases.

Martin v. Hunter’s Lessee (1816)

In carving out its own role, the last question that needed to be addressed by the Court was whether judicial review extended to state courts in addition to state governments. Could the

Johnson, Allen (1915). Union and Democracy. Cambridge, MA: Houghton Mifflin Company

The Yazoo Land Scandal was caused by land speculators who bribed Georgia state legis- lators to allow them to buy up tracts of land (the shaded areas on the map) and resell them to individuals at a substantial profit. The Supreme Court then had to rule on whether the third-party landholders’ claims were invalidated by the scandal.

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Section 7.5 Establishing Judicial Review and the Role of the Supreme Court

U.S. Supreme Court overturn both civil and criminal case decisions of state supreme courts? The Court took up this question in Martin v. Hunter’s Lessee, an 1816 civil case that concerned the Treaty of Paris negotiated by John Jay that ended the Revolutionary War.

During the war, state governments confiscated land owned by British loyalists. One such case occurred when the state of Virginia confiscated the land of Lord Fairfax, who had fled back to Britain. Virginia proceeded to grant a section of Fairfax’s land, which it claimed now belonged to the state, to David Hunter, who later sought to eject Fairfax’s heirs through the Virginia courts. However, a provision of the Treaty of Paris directed that all land titles that existed prior to the war be restored to their original owners.

The Virginia Court of Appeals ruled against Fairfax’s heirs. Although the head of the Virginia Court, Spen- cer Roane, and the other Virginia judges conceded that they were bound to observe the federal Consti- tution, they also maintained that the meaning of that Constitution was for them to decide, and that the U.S. Supreme Court had no power to impose its interpreta- tion on the states. Roane’s alternative reading of the Supremacy Clause was that state judges alone were the ones to enforce it. But if each state’s interpretation of the Constitution carried equal weight with that of the U.S. Supreme Court, then what authority did the Court have? For Virginia, this was a matter of states’ rights. For the national government, it was a matter of national authority and what it meant to be a nation.

Writing the opinion for the Court against the state’s position, Justice Joseph Story pointed to the declara- tion of “We the people” in the preamble of the Consti- tution to establish that the people, regardless of which states they lived in, were sovereign, and as such they could distribute that sovereignty any way they chose.

The people expressed their sovereignty by establish- ing a federal constitution that made it clear that trea- ties would be the supreme laws of the land. Also, in establishing this Constitution, the people made it clear that Article III extended the judicial power to all cases arising under the Consti- tution, laws, and treaties. With Martin v. Hunter’s Lessee, the Supreme Court further extended precedent of judicial review by asserting its authority to overturn state court rulings.

Rule by Precedent

The concept of rule by precedent is known as stare decisis, which is a Latin phrase meaning “rule by decisions that were made in the past.” It can be understood as rule by example. To rule by precedent means that judges are bound by earlier court rulings, and new rulings must conform to these previous findings.

Everett Collection/SuperStock

In Martin v. Hunter’s Lessee (1816), Justice Joseph Story cited the pream- ble of the Constitution to argue that the people, regardless of which state they lived in, were sovereign and could distribute their sovereignty any way they chose.

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Section 7.5 Establishing Judicial Review and the Role of the Supreme Court

Marbury v. Madison provided the precedent that the Court looked to in both Fletcher v. Peck and Martin v. Hunter’s Lessee. The Court had to establish the principle of judicial review in Marbury before it could extend it in Fletcher and Martin. By adhering to precedent, the poten- tial for arbitrary exercise of judicial power can be checked.

The Supreme Court and Public Opinion

Unlike Congress or the executive branch, the Supreme Court is not supposed to be a political body; it is supposed to be an interpretive institution that is removed from politics. In fact, judges are appointed to life terms rather than elected so that they will be immune to popular pressures. Although the Court’s power is derived from the Constitution, it is not absolute. The Constitution can always be amended to strip the Court of its authority, or Congress can alter the scope of its role through legislation.

What the various cases show, then, is a Court that started with little power that was con- cerned with establishing its identity. The Court builds its power by deciding cases that can be used as precedents in later decisions at the national and state levels, including state courts.

This point is perhaps best illustrated by President Franklin Roosevelt’s attempts to “pack” the Court in 1937. Following a string of Court decisions that struck down as unconstitu- tional many early New Deal measures, Roosevelt introduced a plan to add a new justice to the court for every justice who reached the age of 70 but did not retire, until the number of justices reached 15. This would help Roosevelt change the Court’s composition until it was more sympathetic to New Deal policies. His plan never attracted much support in Congress, where many viewed it as a blatant attempt to tamper with a sacred institution. Even though Roosevelt’s plan was not successful, the Supreme Court soon changed direction on several challenges to the New Deal.

Supreme Court Versus the Executive Branch

Hamilton’s suggestion that the Court lacks the power of enforcement because it does not have the power of the sword would suggest that the Court relies heavily on the executive branch to enforce its rulings. This would also suggest that the Court might shy away from confrontations with the executive branch. Marbury v. Madison was as much an attempt to avoid a confronta- tion with the executive as it was an effort to establish the principle and precedent of judicial review. But there have also been times when the Court has been willing to impose limits on the executive branch, especially in the area of executive privilege, which will be discussed next.

For the most part, the Court tends not to get involved in disputes between Congress and the president, claiming that these disputes are inherently political. There have been rare occa- sions when courts have become involved in disputes between the two branches. Watergate is an important example of this phenomenon. It was revealed during the Watergate hearings that there were tapes of face-to-face and telephone conversations between President Richard Nixon and others in the Oval Office. The U.S. Senate Select Committee on Presidential Cam- paign Activities (or, the Congressional Watergate Committee) requested that the tapes be released. President Nixon refused to do so, claiming executive privilege, or the power to keep information from Congress and the U.S. Supreme Court. He then released edited tran- scripts of the tapes, which did not satisfy Congress. The special prosecutor, a non-government

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Section 7.6 The Supreme Court’s Place in the Federal Separation of Powers

The impediment that an abso- lute, unqualified privilege would place in the way of the primary constitutional duty of the Judi- cial Branch to do justice in crimi- nal prosecutions would plainly conflict with the function of the courts under Article III. In design- ing the structure of our Govern- ment and dividing and allocating the sovereign power among three co-equal branches, the Fram- ers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

attorney appointed by Congress, investigated the Watergate affair and filed a motion to sub- poena the tapes and other documents relating to conversations between President Nixon and others, but Nixon, again claiming executive privilege, responded by filing a motion to squash the subpoena. While a district court judge rejected Nixon’s motion, the order to deliver was stayed pending review by the appellate courts.

In the 1974 case United States v. Nixon, the Nixon Administration argued that the separation of powers precluded judi- cial review of the president’s claim of executive privilege. The Supreme Court rejected the argument, claiming,

Associated Press/Bob Daugherty

When Special Prosecutor Archibald Cox filed a motion to subpoena audio tapes and documents relating to the Watergate scandal, President Rich- ard Nixon claimed executive privilege and tried to avoid the request. In United States v. Nixon (1974), the Supreme Court ruled that executive privilege could not set the president above the law.

The Court then concluded that the president’s assertion of privilege on subpoenaed materials for use in criminal proceedings, based only on a generalized desire to maintain confidential- ity, could not take precedence over the demands for due process of law in the fair administra- tion of justice. The Court, in short, was making it clear that the president could not invoke privilege as a way of setting himself above the law.

7.6 The Supreme Court’s Place in the Federal Separation of Powers

The undefined role of the Supreme Court has meant that its place in the separation of pow- ers framework has been ambiguous. If Hamilton’s observation that it possesses neither the power of the purse nor the power of the sword is any guide, then the Court’s relationship to the other branches has to be one of restraint. At a minimum, in a standoff between the national government and any other party, it must, as a national institution itself, maintain the integrity of the national government. This suggests that most case decisions will favor the national government. Also, because the Supreme Court must rely on the other branches

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Section 7.6 The Supreme Court’s Place in the Federal Separation of Powers

of government to respect its decisions, it rarely invalidated acts of Congress or the executive during the early years of the republic.

Federal Authority and the Limits to State Authority

Until the 1860s, many U.S. Supreme Court cases revolved around the relationship between the states and the national government. Specifically at issue were the limits of state authority and the scope of national authority. If the Supreme Court was reluctant to invalidate actions of the national government, it was all too willing to invalidate actions of the states to limit them and to assert national authority.

One of the earliest disputes at the heart of this tension was the 1819 case of McCulloch v. Mary- land. At issue was the creation of a national bank and whether a state was required to recog- nize its legitimacy. In 1816, Congress passed a law establishing a national bank. Although the Constitution does not give Congress the express power to establish a bank, Congress did so on the basis of the Necessary and Proper Clause:

Congress is not empowered by it to make all laws which may have relation to the powers conferred on the Government, but such only as may be “necessary and proper” for carrying them into execution. The word “necessary” is consid- ered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable.

In 1818, the state of Maryland passed a law imposing a tax on all banks or branches of banks in the state that were not chartered by the state legislature. The national bank’s cashier, James McCulloch, refused to pay the tax on the grounds that states could not tax federal property.

This case provided Chief Justice John Marshall an opportunity to clearly establish the limits to state authority established by the Supremacy Clause found in Article VI. In his opinion in McCulloch v. Maryland, he wrote,

[T]hat the power of taxing it by the states may be exercised so as to destroy it, is too obvious to be denied. . . . [T]he sovereignty of the state, in the article of taxation itself, is subordinate to and may be controlled by the constitution of the United States.

In other words, state authority was limited at the point at which it would violate the constitu- tional authority of national institutions that the states agreed to support through ratification. In establishing the constitutionality of the bank’s incorporation, Marshall also put forth a classic statement of the doctrine of national authority. He again asserted that the Constitution was the product of a sovereign people, as Story had made clear in Martin v. Hunter’s Lessee a few years earlier. Now, Marshall reinforced the notion that it was the people in their creation of this Constitution who made the national government supreme over all others (the states) within the sphere of its authority.

As Marshall saw it, the issue in this case and in many others like it prior to the Civil War was the integrity of the federal system. If states could do what they wanted and the federal gov- ernment was rendered powerless as a result, that would mean that the Supreme Court, too, would be powerless.

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Section 7.6 The Supreme Court’s Place in the Federal Separation of Powers

In the 1824 case Gibbons v. Ogden, the question arose as to whether Congress’s commerce power trumped a state’s right to protect its own industry. The case revolved around New York granting exclusive privilege to Robert Livingston and Robert Fulton to operate steamboats on all waters within New York. Other states enacted similar laws, and the result was friction between the states as each required out-of-state boats to pay substantial fees to be admitted into their waters.

When a state regulates commerce among several states, it tramples on a power reserved specifically for the national Congress. If New York’s laws, or those of any other state, interfere with that authority, then those laws are unconstitutional. Cases like this established a stron- ger role for the U.S. Supreme Court

Marbury to Dred Scott

Between the 1803 Marbury v. Madi- son case and the Dred Scott decision in 1857, the Supreme Court did not invalidate a single act of Congress. That changed with Dred Scott, the case that would pave the way to the Civil War.

Dred Scott was an African American slave who was taken by his master, a U.S. Army officer, from the slave state of Missouri into the free state of Illinois and then to the free territory of Wisconsin. When the army ordered his master back to Missouri, Scott was taken back as well. After his master died, Scott, with the assistance of abolitionists, sued for his freedom on the grounds that he had for a long period of time lived on free soil.

The Court under Chief Justice Roger B. Taney, a staunch states’ rights advocate, ruled that the 1820 Missouri Compromise, which banned slavery in the territories north of the parallel 36°30', was unconstitutional. The Court determined that Congress did not have the power to enact a law that would establish certain states as free territories. Rather, the power of Congress to acquire territories and create governments in those territories was limited. The Court asserted that the Fifth Amendment to the Constitution prohibited states from passing any laws that would deprive slaveholders of their property, such as slaves, because those slaves were brought into free territory. The Court went on to assert that territorial legisla- tures had no authority to ban slavery and that neither slaves “nor their descendants, were embraced in any of the other provisions of the Constitution” that protected non-citizens (Dred Scott v. Sandford, 1857). In other words, the Court said that it was the Framers’ intent that people of African descent who were imported into the country as slaves or were descended from imported slaves could never be citizens of the United States and therefore were not entitled to the Constitution’s protections.

The case of Gibbons v. Ogden (1824) was about New York’s exclusive contracts for steamship operations and whether Congress’s power to regulate commerce trumped a state’s right to protect its own industries.

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Section 7.7 Judicial Review and Judicial Restraint

The decision fueled abolitionists’ passions to end slavery and helped strengthen their call for war. Because siding with the national government against the states was, in effect, a vote for the integrity of the United States as a nation, it was really an attempt to establish the idea that the national government had authority over the states. The Civil War ended up settling militarily what the Court had been trying to establish judicially. By demonstrating that states would not be allowed to secede from the union, the war confirmed that national authority trumped states’ rights.

7.7 Judicial Review and Judicial Restraint

When judges strike down an act of a legislative body as unconstitutional, they overturn the will of the people as expressed through the people’s elected representatives. The fact that judges are appointed to life terms means that they do not have to answer directly to the peo- ple; it may also represent a challenge to a democratic society. Given these factors, how strong a role should the Court play in determining policy?

Judicial Restraint

When a court takes the view that it should not invalidate acts of a legislature, it is practicing judicial restraint. Legal scholar Alexander Bickel (1986) expressed that the role of judges is

In Dred Scott v. Sandford (1857), the U.S. Supreme Court ruled that the Fram- ers intended that people of African descent who were imported or descended from slaves could never be citizens of the United States and were not entitled to any constitutional protections. The plaintiff, Dred Scott, is pictured on the left. Chief Justice Roger B. Taney, right, wrote in the majority opinion that the 1820 Missouri Compromise, which banned slavery in territories north of the parallel 36°30', was unconstitutional.

Everett Collection/SuperStock

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Section 7.7 Judicial Review and Judicial Restraint

to interpret the law and not to make it. He viewed the judicial philosophy of restraint as one where judges defer to the will of legislative bodies. A court that strikes down an act of a legis- lative body as unconstitutional is, in effect, making law.

Judicial Activism

When a court takes the view that it should strike down legislative acts that violate the rights of individuals, the court is practicing judicial activism.

Judicial activism argues that judges protect individual rights and liberties. When legislative bodies violate these liberties, judges are obligated to strike down those actions as constitu- tional violations. A democratic majority does not trump individual rights, the reasoning goes; rather, the purpose of the Constitution in the first place is to protect individuals from the arbi- trary actions of legislative bodies. Activist judges maintain that a law cannot be considered constitutional if it violates basic individual rights or the spirit of the Constitution.

Griswold v. Connecticut (1965)

Consider the following example: Connecticut had a law enacted in 1879 prohibiting the use of “any drug, medicinal article or instrument for the purpose of preventing conception” until this law was ruled unconstitutional in Griswold v. Connecticut in 1965. While the law was rarely, if ever, enforced, the Griswold case was instigated by a Planned Parenthood chapter in concert with a Yale School of Medicine faculty member who wanted to expose the law as absurd and make the argument that contraceptive use was not subject to government oversight.

Estelle Griswold, the executive director of Planned Parenthood of New Haven, Connecticut, and Dr. Lee Buxton of the Yale School of Medicine opened up a birth con- trol clinic in New Haven, Connecti- cut, to test the law. They were duly arrested, tried, found guilty, and fined $100 each. Their convictions were upheld by both the appellate division of the circuit court and the Connecticut Supreme Court. While the U.S. Constitution makes no mention of privacy rights, the Court asserted that such a right existed in what it referred to as the penum- bra, or spirit, of the Constitution. The Court argued that the concept of a penumbra is found in the Ninth Amendment, which states, “The enumeration in the Constitution, of

Estelle Griswold (left), who was the executive director of Planned Parenthood in New Haven, Connecticut, cel- ebrates the U.S. Supreme Court’s ruling in Griswold v. Connecticut (1965) with Cornelia Jahncke (right), presi- dent of Parenthood League of Connecticut, Inc. The rul- ing stated that the absence of a constitutional right to privacy does not mean that the Framers did not intend for there to be one.

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Summary and Resources

certain rights, shall not be construed to deny or disparage others retained by the people.” In essence, the Ninth Amendment states that rights not specifically listed, or enumerated, in the Constitution are consistent with the spirit of the Constitution and are not denied to individu- als just because they are not specifically identified in it. The Court held that Connecticut’s law banning contraception was a violation of the right to privacy.

Judicial restraintists might argue that if the people want to ban contraception, it is their dem- ocratic right to do so, especially when the law does not violate an express provision of the Constitution. A judge practicing judicial restraint will defer to the legislative body that passed that law on the grounds that the legislature was democratically elected and is thus expressing the will of the people.

Activism Versus Restraint in Modern Politics

Much of contemporary American politics revolves around just what the role of the Supreme Court should be. People who do not like a particular decision may accuse the Court of activ- ism and complain about it having too many “activist judges.” Those who are satisfied with a ruling where the Court overturns legislation even though it may be offensive to others may express their admiration for the Court’s restraint. On one level, the debate between activism and restraint has been a debate over judicial philosophy and how to approach the Consti- tution. On another level, it speaks to a fundamental tension in American politics between groups that seek to change policies that they disagree with through the courts and groups that want the courts to take a minimal role in policy decisions.

In contemporary American politics, conservatives typically label courts that have asserted rights to privacy, rights of the accused, and other decisions contrary to their ideological views as activist. Liberals who cheer these decisions as being necessary to create a more open, equal, and inclusive society only 100 years ago accused the Court of activism when it upheld the property rights of corporations against the interests of workers. In essence, critics of judi- cial activism argue that judges overstep their bounds by effectively making law through case decisions, thereby taking this right away from elected legislatures.

Summary and Resources

Chapter Summary The U.S. Constitution creates a Supreme Court but says very little about what its role will be. Rather, it has been up to the Supreme Court itself to carve out its role through its interpreta- tions and the precedents it creates. Congress creates a federal judicial structure under the Supreme Court, and foundations for the current federal judiciary lie in the Judiciary Act of 1789, which created two tiers of lower courts at the district and appellate levels. This act also planted the seeds of constitutional review, as it created an opportunity to strike down a provi- sion that the Supreme Court would issue a writ of mandamus in Marbury v. Madison. Through Marbury, the Supreme Court established the principle of judicial review. The Court began to apply judicial review to the states, first by establishing the precedent that it could strike down

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Summary and Resources

as unconstitutional acts of state legislatures, and second by overturning state Supreme Court rulings.

In carving out its own role, the Supreme Court understood that public opinion mattered a great deal in its considerations. As Hamilton pointed out, the Court was the least dangerous branch of government because it had neither the power of the purse nor the power of the sword. It also understood that its position within the larger scheme of separation of powers required that it maintain the integrity of the federal structure, which meant giving greater priority to national authority and power than to state power and authority. As a result, between 1803, when Marbury was decided, and 1857, when Dred Scott was decided, the Supreme Court did not strike down any act of the national Congress as unconstitutional; rather, it focused on the constitutionality of state laws and routinely struck them down if they interfered with national authority.

The Court tends to rule based on stare decisis as a way to limit the scope of its rulings to exist- ing precedent. Those who argue for judicial restraint maintain that judges should defer to democratically elected legislatures, while those who argue for judicial activism maintain that judges should protect individual rights even if it means invalidating the will of the people.

Key Ideas to Remember

• Because the Constitution does not really define the role of the Supreme Court, it has fallen to the Court to carve out its own role through judicial review.

• Alexander Hamilton referred to the judiciary as the least dangerous branch of gov- ernment because it has neither the power of the purse nor the power of the sword. This meant that it would hesitate to rule against either Congress or the president because it would always rely on their goodwill to enforce its rulings.

• Although Article III of the Constitution establishes one Supreme Court, Congress cre- ates lower courts such as district courts and the U.S. Courts of Appeals.

• Federal judges obtain their positions through presidential appointment and Sen- ate confirmation. Presidents often factor ideology into their decision of whom to appoint, and the Senate also looks at ideology when deciding whether to confirm.

• The principal function of the Supreme Court is to review the constitutionality of actions of the government. It approaches judicial review on the basis of stare decisis, which is rule by precedent.

• The Supreme Court established the principle of judicial review with the case of Mar- bury v. Madison, which was the first instance in which the Supreme Court held an act of Congress to be unconstitutional.

• From Marbury v. Madison until the Civil War, the Supreme Court focused on asserting national supremacy over states’ rights, as its role in the separation of powers system relied on the integrity of a strong national structure with national authority.

• The role of judges is to interpret the Constitution, but great debate has revolved around whether judges should be restrained and defer to the will of legislative bod- ies, or be activists and overturn legislative actions if they believe that those actions violate individual rights.

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Summary and Resources

Questions to Consider

1. What is judicial review? 2. Why did Hamilton call the Supreme Court the least dangerous branch of

government? 3. How did the Supreme Court carve out its own role? 4. What was the ultimate significance of Marbury v. Madison? 5. What does it mean to call a court judicially activist as opposed to judicially

restrained, and how does this relate to tensions in contemporary American politics? 6. In deciding cases involving same-sex marriage, was the Court acting in a restrained

or an activist manner?

Key Terms appeal An application to a higher court to review the decision made in a lower court.

appellate courts Courts that review find- ings made by lower courts.

appellate jurisdiction A higher court’s power to consider appeals on cases decided by lower courts.

concurring opinion A separate judicial opinion from the majority that is based on a different line of reasoning.

courts of original jurisdiction Courts with the power to hear a case for the first time.

dissent A judicial opinion written by the minority that expresses disagreement with the majority opinion.

district courts The lowest courts in the federal hierarchy, where cases originate.

dual court system System of national and state-level courts that have separate jurisdictions.

executive privilege Power claimed by the president that he or she may keep informa- tion from Congress and the U.S. Supreme Court.

judicial activism When judges invalidate the will of democratic majorities to protect rights and individual liberties.

judicial restraint When judges defer to the will of the people when making decisions.

judicial review The process by which the Supreme Court interprets the meaning of the U.S. Constitution and its amendments.

jurisdiction When a court has authority to hear a case.

precedent A court decision used as a guide for future court decision making.

senatorial courtesy When members of the Senate, on a matter of an appointment, defer to the senator of the appointee’s state.

solicitor general The government’s lawyer who argues cases for the government before the Supreme Court.

special prosecutor A non-government attorney appointed by Congress to investi- gate a government official for misconduct.

stare decisis To rule by precedent.

statutory interpretation The process used by courts to interpret the meaning of laws and statutes.

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Summary and Resources

Further Reading Abraham, H. J. (1998). The judicial process: An introductory analysis of the courts of the United States, England, and

France (7th ed.). Oxford, UK and New York, NY: Oxford University Press.

Bickel, A. M. (1986). The least dangerous branch: The Supreme Court at the bar of politics (2nd ed.). New Haven, CT: Yale University Press.

Black, C. L., Jr. (1960). The people and the court: Judicial review in a democracy. New York, NY: The Macmillan Co.

Bork, R. H. (1990). The tempting of America: The political seduction of the law. New York, NY: The Free Press.

Chemerinsky, E. (2003). Ideology and the selection of federal judges. University of California, Davis Law Review, 39, 619–631.

Fisher, L., & Harriger, K. (2013). American constitutional law: Volume 1: Constitutional structures: Separated pow- ers and federalism (10th ed.). Durham, NC: Carolina Academic Press.

Kelly, A. H., Harbison, W. A., & Belz, H. (1991). The American Constitution: Its origins and development (7th ed.). New York, NY: W. W. Norton & Co.

McCloskey, R. G., & Levinson, S. (2010). The American Supreme Court (5th ed.). Chicago, IL: University of Chicago Press.

Murphy, W. F., Pritchett, C. H., Epstein, L., & Knight, J. (2005). Courts, judges & politics: An introduction to the judi- cial process (9th ed.). Columbus, OH: McGraw-Hill Education.

Scalia, A. (1998). A matter of interpretation: Federal courts and the law. Princeton, NJ: Princeton University Press.

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