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Judicial Review and the Supreme Court PUBLISHED BY LCoordinators: AW WSEPTEMBER ISE 2018 • ISSUE 1 Honorable Bethany J. Roberts, Chair, LRE Committee; Anne Woods, Public Services Director; Nicolas Shump, Law Wise Editor; & Patti Van Slyke, Journal Editor Greetings from the Kansas Bar Association (KBA). Welcome to this first edition of Law Wise for the 2018-2019 school year. IN THIS ISSUE Judicial Review and Judicial Review & the Supreme Court...............1 The Role of the Senate in the Supreme Court the Supreme Court Justice Confirmation Process ......................... 2 Judicial review, the ability of the Supreme Court to rule on the consti- tutionality of laws and actions by the other branches of the United States The Origins and History government, undoubtedly remains one of the most important checks on of the Senate Filibuster ................................. 3 the legislative and executive branches. However, this power is not one A Closer Look at Brett Kavanaugh .................. 3 expressly given to the judicial branch in the U.S. Constitution. Article III, Section 1 simply states, “The judicial Power of the United States, The Legal Philosophy of Brett Kavanaugh ....... 4 shall be vested in one supreme Court, and in such inferior Courts as the Lesson Plan 1: Supreme Court ........................ 6 Congress may from time to time ordain and establish.” Section 2 lays out the original and appellate jurisdiction for the Supreme Court. Article VI Supreme Court Handout ................................. 7 of the Constitution establishes the Constitution and subsequent laws as Lesson Plan 2: Judicial Review ....................... 8 the “supreme Law of the Land.” Lesson Activities ............................................. 9 In Federal- ist Paper 78, iCivics & Terrific Technology for Teachers ..... 10 Alexander H a m i l t o n supported the role of the Su- preme Court ALENDAR OF VENTS in determin- C E ing the con- stitutionality of laws. “The interpretation of the laws is September 16-22 . Celebrate Freedom Week the proper and September 17 ....................Constitution Day peculiar prov- ince of the October 8 ............................Columbus Day Alexander Hamilton courts. A con- November 6 .......... Kansas General Election stitution is in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the November 12 ......................... Veterans Day meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course; to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Still, the Supreme Court did not have the authority to determine the ad- www.ksbar.org/lawwise 2 LAW WISE | SEPTEMBER 2018 herence of new laws to the Constitution nor what to do if the gress passed the Judiciary Act of 1801. This act created 16 new Court determined a law to be unconstitutional. circuit judgeships and other lesser judgeships too. To continue the influence of the Federalist Party and frustrate the oppo- One of the many reasons the sition Democratic-Republican Party, President Adams filled Founders decided to revise the these judgeships. As one of the final appointments—known Articles of Confederation was as a “midnight appointment”—William Marbury did not re- the lack of a federal and supreme ceive his commission from outgoing Secretary of State John judiciary power. Not only did Marshall. Upon assuming the presidency, Thomas Jefferson the new document establish the instructed his new Secretary of State James Madison to with- Supreme Court, it also gave the hold the Marbury nomination. William Marbury petitioned Court authority to settle disputes the Supreme Court to issue a writ of mandamus to compel between the states. Judicial re- James Madison to honor his commission. view emerged during the tenure of the fourth Chief Justice of the Under today’s standards, Justice Marshall would recuse Supreme Court, John Marshall. himself from this case, as he had succeeded James Madison as A native Virginian, Marshall joined the Court after notable secretary of state. With no such standards in 1803, Marshall experience and involvement in the early Republic. Marshall ruled on the case. Marshall declared Marbury had the right to served under General George Washington in the Revolution- his commission. Marshall chastised Jefferson and Madison for ary War. After returning to Virginia, Marshall studied law at denying Marbury his right to this commission. Regarding the William and Mary before gaining admission to the bar. In writ of mandamus, Marshall ruled the law giving the Supreme fact, Marshall initially turned down an appointment to the Court this authority, the Judicial Act of 1789, was unconstitu- Supreme Court and won election to the U.S. House of Rep- tional. In this ruling, Marshall avoided a showdown with the resentatives in 1800. Marshall barely served in Congress prior executive branch regarding which branch had authority over to accepting appointment as secretary of state under President the other. At the same time, this case established the authority John Adams. of the Supreme Court to rule on the constitutionality of laws as envisioned by Alexander Hamilton in the Federalist Papers. John Marshall’s time as secretary of state factored into the It is likely the power and influence of judicial review will im- decision which established the power of judicial review for the pact the upcoming confirmation hearings of Judge Brett Kava- Supreme Court. In 1801, the Federalist Party-controlled con- naugh to the Supreme Court. The Role of the Senate in the Supreme Court Justice Confirmation Process In a fitting example of the system of checks and balances, clined to serve after receiving confirmation. The senate took no the authority of the U.S. Senate to confirm Supreme Court action on ten nominations, three were postponed, twelve were nominees resides in Article II of the U.S. Constitution, which withdrawn and twelve were rejected. When the senate refused focuses on the Executive Branch. In a long list of powers re- to conduct hearings on the nomination of Judge Merrick Gar- served for the President, the text states, “He shall have Power, by land, it was the first time in over 60 years the senate had not and with the Advice and Consent of the Senate, to make Trea- acted on a nomination. However, most of these nominations ties, provided two thirds of the Senators present concur; and he were taken up by the next senate. The last nomination prior shall nominate, and by and with the Advice and Consent of the to Garland’s to not receive a vote was Judge Henry Stanberry Senate, shall appoint Ambassadors, other public Ministers and who President Andrew Johnson nominated in 1866—nearly Consuls, Judges of the supreme Court, and all other Officers of 150 years prior to Judge Garland’s nomination. the United States, whose Appointments are not herein other- Given the relatively informal process behind the “advise and wise provided for, and which shall be established by Law.” In its consent” authority, most nominees received nearly automatic typically succinct manner, the Constitution requires the “Advice confirmation. Harlan Fiske Stone became the first nominee and Consent of the Senate” but provides no further elaboration to appear before the U.S. Senate Judiciary Committee, and regarding how this process shall unfold. it was 14 years before another nominee appeared. Even for In fact, there is no mention of confirmation hearings or a re- those nominees who did appear, the hearings were relatively quirement for the senate to take action on a presidential nomi- uneventful. Justice Byron White, a Kennedy appointee, spent nee to the U.S. Supreme Court. Since 1789, 163 judges have a mere 11 minutes answering questions. Through the admin- been nominated to the Court. Approximately 77% of these istration of Lyndon Johnson, many nominees received voice judges were confirmed. Of that number (125), seven judges de- votes before the full senate. www.ksbar.org/lawwise SEPTEMBER 2018 | LAW WISE 3 This relatively informal and nonpartisan process changed practical effect of keeping the full body from voting on legisla- nearly 30 years ago with the nomination by President Ronald tion or taking action on a presidential nominee. Supporters of Reagan of Judge Robert Bork. Judge Bork possessed impres- the measure point to the preservation of minority rights with sive credentials for the nation’s highest court. Bork graduated this tool. Detractors claim it obstructs the senate from its leg- from the University of Chicago Law School, taught at Yale islative responsibilities. Law School, had served in the Justice Department during the The Constitution allows both houses of congress to set their Nixon administration, and spent over three years as the Solici- own rules. The idea for the filibuster originated not from the tor General. At the time of his nomination, Judge Bork served senate itself, but from a suggestion by Vice President Aaron as a Judge on the Circuit Court for the District of Colum- Burr as he presided over the senate in 1805. On Burr’s advice, bia. There are parallels to the qualifications of Judge Bork and the senate did away with the rule calling for a simple majority current Trump nominee Judge Brett Kavanaugh. Ultimately, to stop debate on an issue. Though this rule change allowed for concerns with Judge Bork’s views on the right to privacy, ex- the practicing of filibustering, the first filibuster did not occur ecutive power and judicial activism led to his rejection by the until 1837. Use of the filibuster increased after the Civil War, Senate Judiciary Committee on a 9-5 vote. In the full senate, though opponents did try to revert to the previous rules. Natu- his nomination was defeated by a 58-42 vote.
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