Judicial Review and the Supreme Court

Home , William Marbury

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 constitutionality 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 constitutionality 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.

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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. rally, the proponents of the filibuster used this tool to prevent In 2013, Senate Majority Leader Harry Reid initiated chang- these reforms from taking place. es to long-standing senate rules requiring a 60-vote majority to It took World War I and the strident urging of President prevent the filibuster on Supreme Court nominees and cabinet Woodrow Wilson for the senate to adopt the cloture rule. By and executive agency leadership positions. After the party-line a 76-3 vote, the senate adopted Rule 22, the super-majority vote, only 51 votes are needed to stop a filibuster from taking cloture rule that required two-thirds of senators voting to in- place. Without these changes, it is likely Justice Neil Gorsuch voke cloture. When Rule 22 is initiated, debate is limited to might not have received senate confirmation as he received no more than 30 additional hours. The longest group filibuster only 54 votes. With a Republican majority in the senate, it is lasted for 57 days as a group of senators held up voting on the unlikely Senate Democrats will be able to stop the nomination Civil Rights Act of 1957. Longtime Senator Strom Thurmond of Judge Brett Kavanaugh. Senate Majority Leader Mitch Mc- of South Carolina conducted the longest individual filibuster Connell has indicated confirmation hearings for Judge Kava- also in 1957; the filibuster lasted for 24 hours and 18 minutes. naugh will likely take place in September. In 2013, the Democrat-controlled senate voted to amend the filibuster rules requiring only a simple majority to block votes on cabinet appointees and Supreme Court justices. Though The Origins and History Republican senators objected to this change, when the Repub- lican Party gained control of the senate in 2014, they did not of the Senate Filibuster vote to resume the former rules requiring 60 votes. For the time being, the filibuster does not look to be a prominent tool for the United States Senate.

A Closer Look at Brett Kavanaugh Currently, Judge Brett Kavanaugh has stopped hearing cases before the U.S. Court of Appeals for the District of Columbia as he awaits the next step in his nomination process to succeed retiring Justice Anthony Kennedy on the United States Supreme Court. Brett Michael Kavanaugh is the only child of Edward and Martha Kavanaugh. Both his parents earned law degrees in One of the more distinctive features of the United States 1978. His father attended night school for law while working Senate is the filibuster. The etymology of the word provides full time. His mother went from being a public school history insight into this senate procedure. It derives from a Dutch teacher to working as a prosecutor in Montgomery County, term meaning “free booter.” The term referred to pirates who Maryland, to eventually serving as a Montgomery County plundered West Indian colonies. In its application for the U.S. Circuit Court Judge. Senate, the term describes the intent to sabotage proceedings Brett Kavanaugh, 53, attended Georgetown Preparatory of the senate. The use of the filibuster in the senate has the

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School, a boarding school run by the Jesuits. Justice Neal Gor- partisan concerns, such is a fellow alumnus. Kavanaugh is a practicing Roman Kavanaugh did not Catholic and is active in his local parish. Kavanaugh subse- receive confirma- quently attended Yale University (Class of 87) and Yale Law tion until 2006. In School (Class of 90). He clerked for several judges including 2008, Kavanaugh Justice Anthony Kennedy. joined the faculty of Harvard Law Kavanaugh worked on the Kenneth Starr investigation into School as a lecturer. President Bill Clinton. Kavanaugh investigated the suicide of Justice Elena Kagan White House Counsel Vince Foster. He appeared before the hired Kavanaugh Supreme Court to ask to gain access to the notes of one of for this position. Foster’s lawyers, but was unsuccessful in his quest. Kavanaugh Kavanaugh serves authored much of the Starr Commission Report which led to as the Director of the D.C. Circuit Historical Society and as the impeachment of President Clinton. an advisor to the American Law Institute. During the 2000 presidential campaign, Kavanaugh served Brett Kavanaugh met his future wife, Ashley Estes, while with the Lawyers for Bush-Cheney. After the election of Presi- both worked for the Bush Administration. Their first date was dent George W. Bush, Kavanaugh served as a staff secretary on September 10, 2001. They married in 2004 and have two for President Bush from 2001-2003. Currently, several Demo- daughters, Margaret and Elizabeth. Kavanaugh has coached cratic Senators have requested access through the Freedom of his daughters in youth basketball. Information Act to documents from Kavanaugh’s tenure in the White House. If confirmed, Brett Kavanaugh would be the second young- est justice on the Court at 53. Only Neil Gorsuch, age 51, is In 2003, President Bush nominated Brett Kavanaugh to younger. the Court of Appeals for the District of Columbia. Due to

The Legal Philosophy of Judge Brett Kavanaugh

In terms of his legal philosophy, Judge Brett Kavanaugh re- As a nominee for the Supreme Court, Judge Kavanaugh’s sembles the late Supreme Court Justice Antonin Scalia in being legal philosophy and rulings have come under scrutiny. Fol- known as an originalist in terms of legal theory. According to lowing is a brief overview of some of Judge Kavanaugh’s more Professor Steven G. Calabresi, Northwestern Pritzker School notable writings and rulings. of Law, “Originalists believe that the constitutional text ought Abortion to be given the original public meaning that it would have had at the time that it became law. The original meaning of con- With the retirement of Justice Kennedy, there is consider- stitutional texts can be discerned from dictionaries, grammar able interest in Judge Kavanaugh’s opinion of issues such as books, and other legal documents from which the text might abortion. During his confirmation hearings to the DC Circuit be borrowed. It can also be inferred from the background le- Court, when asked about Roe v. Wade, he said the following, gal events and public debate that gave rise to a constitutional “If confirmed to the D.C. Circuit, I would follow Roe v. Wade provision.” Judge Kavanaugh and other originalists believe the faithfully and fully. That would be binding precedent of the text of the Constitution should be interpreted through this court. It has been decided by the Supreme Court.” However lens. Kavanaugh identifies with the method of textualism also in the 2017 Garza v. Hagan case involving an undocumented favored by Justice Scalia. According to BallotPedia, “Textual- immigrant teenager requesting an abortion, Kavanaugh dis- ism is a method of statutory interpretation whereby the plain sented in the 6-3 ruling on the case. Kavanaugh wrote, “The text of a statute is used to determine the meaning of the legisla- Supreme Court has repeatedly held that the government may tion. Instead of attempting to determine statutory purpose or further those interests so long as it does not impose an undue legislative intent, textualists adhere to the objective meaning burden on a woman seeking an abortion. Today’s majority de- of the legal text. Textualism may also refer to a set of practical cision, by contrast, ‘substantially’ adopts the panel dissent and techniques used by jurists to determine the application of a is ultimately based on a constitutional principle as novel as it statute through close consideration of its text. Judge Kavana- is wrong: a new right for unlawful immigrant minors in U.S. ugh has used these standards and methods to write over 300 government detention to obtain immediate abortion on de- opinions since his 2006 appointment to the U.S. Court of Ap- mand, thereby barring any government efforts to expeditiously peals for the District of Columbia Circuit. transfer the minors to their immigration sponsors before they make that momentous life decision.”

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Religious Freedom Writing for the three-judge panel that had ruled against the CFPB and declared the leadership structure unconstitutional, In a 2015 case, Priests for Life v. HHS, Kavanaugh dissented Judge Kavanaugh stated, “The director of the CFPB possesses from the majority who argued that the Affordable Care Act’s more unilateral authority—that is, authority to take action on mandate for employers to provide coverage for birth control in one’s own, subject to no check— than any single commission- their insurance plans did not violate the religious freedom of er or board member in any other independent agency in the the employers. Kavanaugh noted, “the regulations substantially U.S. government.” The panel claimed the CFPB was unconsti- burden the religious organizations’ exercise of religion because tutional. The full court of appeals overturned the ruling on the the regulations require the organizations to take an action con- constitutionality of the CFPB. In a dissent from this ruling, trary to their sincere religious beliefs.” However, in the same Kavanaugh claimed, “The independent agencies collectively opinion, Judge Kavanaugh acknowledged, “that the government constitute, in effect, a headless fourth branch of the U.S. Gov- has a compelling interest in facilitating access to contraception ernment. They hold enormous power over the economic and for the employees of these religious organizations.” social life of the United States. Because of their massive power The Right to Bear Arms and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual lib- In 2011, in the District of Columbia v. Heller, the Supreme erty and to the constitutional system of separation of powers Court ruled that a ban on handgun possession in the home and checks and balances. To mitigate the risk to individual was unconstitutional. Gun rights advocates asked for the ban liberty, the independent agencies historically have been headed to extend to assault rifles as well. In the case known as Heller by multiple commissioners or board members.” II, the district court upheld the ban on assault rifles. Judge Kavanaugh dissented arguing, “A ban on a class of arms is Presidential Power and Executive Privilege not an ‘incidental’ regulation.” “It is equivalent to a ban on a Brett Kavanaugh rose to prominence as a member of Ken- category of speech.” Kavanaugh continued with his appeal to neth’s Starr investigation of President Bill Clinton where he the original Heller ruling. “In Heller, the Supreme Court held led the investigation into the death of White House Counsel that handguns—the vast majority of which today are semi- Vince Foster. Kavanaugh served as a primary author of the automatic—are constitutionally protected because they have Starr Report that resulted in the impeachment of President not traditionally been banned and are in common use by law- Clinton by the U.S. House of Representatives. However, in abiding citizens.” “There is no meaningful or persuasive con- 2009, in an article in the Minnesota Law Review, Kavanaugh stitutional distinction between semiautomatic handguns and reconsidered whether or not a sitting president should be the semiautomatic rifles.” subject of criminal investigations. “Even the lesser burdens of Environmental Regulation a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distract- In 2012, in the EPA v. EME Homer City Generation, Judge ing. Like civil suits, criminal investigations take the President’s Kavanaugh and the D.C. District Court ruled that the EPA focus away from his or her responsibilities to the people. And had exceeded its authority with provisions of the Clean Air a President who is concerned about an ongoing criminal inves- Act. The Supreme Court overturned this decision on a 6-1 tigation is almost inevitably going to do a worse job as Presi- vote. In 2014, in the White Stallion Energy v. EPA, Kavana- dent.” ugh dissented from his colleagues arguing the EPA had once again exceeded its authority. The Supreme Court overturned Kavanaugh offered the following solution; “Congress might this decision with Justice Scalia noting Kavanaugh’s dissent consider a law exempting a President—while in office—from in the ruling. criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” Kavana- Opponents of Kavanaugh feel he is pro-business, and they ugh claimed there is recourse for Presidential misconduct. “If have concerns regarding environmental and regulatory cases if the President does something dastardly, the impeachment pro- he is confirmed. cess is available.” Federal Bureaucracy and With the decision not to hold confirmation hearings on Government Oversight President Obama’s nomination of Merrick Garland to fill the In addition to environmental cases, one of Kavanaugh’s vacancy on the Supreme Court after the death of Justice Scalia, more controversial decisions involves the Consumer Financial the confirmation process of Judge Brett Kavanaugh will likely Protection Bureau (CFPB). In the 2016 case, PHH v. CFPB, be controversial. In July of 2018, Kavanaugh made the follow- PHH, a mortgage lender challenged the authority of the direc- ing comments at the swearing-in ceremonies for a former law tor of the CFPB to assess additional fines to an administrative clerk. “In our constitutional system, a judge must be indepen- ruling fining the company $6.4 million. The additional fines dent, must keep an open mind in every case, and must decide levied by CFPB Director Richard Cordray amounted to $103 cases based on the facts and the law, not based on personal or million for a total of $109 million. policy views.” It remains to be seen if Judge Kavanaugh has the opportunity to put these words into practice.

www.ksbar.org/lawwise 6 LAW WISE | SEPTEMBER 2018 Lesson Plan 1: Supreme Court (adapted from USA.gov) Use the handout (included) to help students understand how the Supreme Court works. https://app_usa_prod_eqffnyamdzrb.s3.amazonaws.com/HowTheSupremeCourtWorks.pdf

How the Supreme Court Decides Cases?

• Typically, the Supreme Court selects a case that usually involves interpretations of the Constitution or federal law. At least four justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues. • An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the justices. Prior to the argument, each side has submitted a legal brief—a written legal argument outlining each party’s points of law. Other groups who support a particular side on this issue may also write briefs for the case under consideration. Characteristics of the • The justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and Persuasive Essay/Brief the legal positions advocated by each party. • Beginning the first Monday in October, the Court • Purpose generally hears two one-hour arguments a day, at 10 H To get the reader to accept the writer’s point of view a.m. and 11 a.m., with occasional afternoon sessions on the issue posed by the writing prompt. scheduled as necessary. Arguments are held on Mon- H To adopt the writer’s way of thinking about the issue days, Tuesdays, and Wednesdays in two-week intervals posed by the writing prompt. through late April (with longer breaks during Decem- • Organizational Pattern ber and February). H Introduction • In the recesses between argument sessions, the justices – May have a hook or grabber to get the reader’s at- are busy writing opinions, deciding which cases to hear tention. in the future, and reading the briefs for the next argu- – Clearly conveys the writer’s opinion/position on the ment session. They grant review in approximately 80 topic/thesis statement. of the more than 7,000-8,000 petitions filed with the H Body Court each term. – Provides evidence to support the writer’s opinion/ • No one knows exactly when a decision will be handed purpose. down by the Court in an argued case, nor is there a set – Evidence will be in the form of facts, reasons, ex- time period in which the justices must reach a decision. amples, details, etc. However, all cases argued during a term of Court are – Effective transitions show how ideas connect. decided before the summer recess begins, usually by the – May present pros and cons of an argument. end of June. – Anticipates the reader’s questions. • During an argument week, the justices meet in a private H Conclusion conference, closed even to staff, to discuss the cases and – Restates the writer’s opinion/position, thesis state- to take a preliminary vote on each case. ment, or focus. • If the chief justice is in the majority on a case decision, – May summarize the main point included in the he decides who will write the opinion. He may decide body. to write it himself or he may assign that duty to any – May include a personal comment or call for action. other justice in the majority. If the chief justice is in the minority, the justice in the majority who has the most Nebraska Department of Education seniority assumes the assignment duty.

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Supreme Court Handout

Supreme Court Lesson Plan Activities

1. Brainstorm a possible case to argue • Changing the voting age from 18 to 21 • Paying college athletes • Outlawing homework • Why a college education should be free • Local issues • Other controversies or conflicts

2. Select three cases and assign roles for the students • 9 students for the court • Attorneys for both sides • Court officers • Stenographer/note-taker • Additional roles as needed

3. Court is in session • A marshall calls the court to order and keeps the courtroom in order • Allow attorneys to argue their case • Justices ask questions • Judges review and discuss arguments • Decisions are announced to the class • The Court provides basis for their judgement • If the decisions are not unanimous, each side can present rationale for decision

4. Homework Reflection • Students must summarize each of the cases argued. G What are the main issues of each case? G The arguments from each side G The Court’s decision and reasons for the decision

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Lesson Plan 2: Judicial Review (Adapted from Edsitement!)

Overview

Though today we take this power for granted, after ratifying the Constitution in 1789, the authority of the Supreme Court to declare laws unconstitutional did not exist. It took until 1803 and the ruling of Chief Justice John Marshall to implement judicial review in the Marbury v. Madison case.

Guiding Questions

1. What is the role of the Supreme Court regarding laws passed by Congress and state legislatures, and how did John Marshall’s decision in the case of Marbury v. Madison help to underscore the Court’s pre-eminence? 2. Why was the establishment of the notion of judicial review so important for the future history of the Supreme Court and the United States?

Learning Objectives

1. the role of the Supreme Court in interpreting the Constitution 2. the significance of Marbury v. Madison 3. the concept of judicial review and how Marbury v. Madison solidified it 4. the relationship between the Supreme Court and laws passed by Congress and state legislatures

Key Players and Important Documents

• Supreme Court Chief Justice John Marshall • William Marbury, a Maryland citizen who in 1801 sought to become justice of the peace for the District of Columbia • Secretary of State James Madison • President John Adams (outgoing Federalist in 1801) • Thomas Jefferson (incoming Democrat Republican in 1801) • Charles Lee, Marbury’s attorney • Judiciary Act of 1789 • Judiciary Act of 1801

Materials for Preparation

• Article III of the U.S. Constitution • https://constitutioncenter.org/interactive-constitution/articles/article-iii • Marbury v. Madison decision • https://www.law.cornell.edu/supct/search/display.html?terms=marbury%20v%20madison&url=/ supct/html/historics/USSC_CR_0005_0137_ZO.html • Judicial Act of 1789 • http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=196 • Judicial Act of 1801 • https://www.fjc.gov/history/legislation/landmark-judicial-legislation-back-historical-note-1

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Lesson Activities

Part I: • In groups, with partners, or alone, students will do A. What does Article III say? a close textual analysis of the decision to understand Students will read Article III of the U.S. Constitution Marshall’s argument. to answer the following questions: • They may use class time or analyze the decision as • What is the job of the Supreme Court as described in homework Article III? • A final discussion in class will check students’ under- • Is there any indication in this section that the Su- standing preme Court has the “right” or “responsibility” to determine whether laws are constitutional—meaning Part II: whether they violate or go against what is written in A. What is the job of the Supreme Court in cases where a the Constitution? law passed by Congress contradicts/violates part of the • Is there any reference to the term “judicial review” in Constitution? Students will answer this question based on John the Constitution? Marshall’s ruling in . • Does Article III establish the limits of the Court’s Marbury v. Madison powers? Part III: A. Student Comprehension B. Marbury v. Madison Teacher will lead a class discussion to consider the fol- Students should read the text of Marbury v. Madison. The teacher should pose these questions to students to lowing questions. ensure understanding of major issues of the case: • Which has supremacy: the Constitution or ordinary • What was William Marbury’s complaint and how laws? did it arise? • How does the Constitution limit the power of legisla- • What did Marbury hope to achieve by suing Secre- tive bodies? tary of State James Madison? • Why is this limitation so important, in Marshall’s • Who “won” the case? view? • What did this decision say about the role of the Su- • What would happen if the Constitution and “ordi- preme Court? Why is it still relevant to us today? nary legislative acts” were on equal footing?

C. John Marshall’s Opinion • What did John Marshall write about the power of the Supreme Court in the actual decision?

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TERRIFIC TECHNOLOGY FOR TEACHERS

WEBSITES APPS www.supremecourt.gov Historic Supreme Court Decisions The official site of the United States Supreme Court. Multieducational Inc. 1.99 www.scotusblog.com U.S. Constitution Annotated The official blog of the Supreme Court Library of Congress www.oyez.org MyCongress-Your Guide to the US Congress An archive of the Supreme Court with a variety of media sources. ContraXter, Inc. supreme.justia.com The Justia US Supreme Court Center which includes opinions going Congressional Leaders back to the origins of the Court in the 18th century. Arunkumar Chacko scdb.wustl.edu Congressional Record The Supreme Court Database run by Washington University. PressPad Sp

Do you find Law Wise About the Law Wise Editor: helpful? Nicolas Shump teaches courses in Creative Writing, Film, and Advanced Placement We are always open to receiving (AP) courses in Comparative Government comments, ideas and suggestions. and Politics, European History, Psychology, Please contact [email protected] and U.S. Government and Politics for the with your responses. Hybrid Learning Consortium (HLC) at The Barstow School in Kansas City, MO. Please let us know: He also teaches Discourse 100 at the University of Missouri- • Topics you would like to explore; Kansas City (UMKC) where he is an MFA Student in the • Projects and lessons you have developed that you Creative Nonfiction Program. He is a columnist for the Topeka would like us to feature; Capital-Journal and a Talk About Literature in Kansas (TALK) • Questions you would like to ask an attorney or judge. discussion leader for Humanities Kansas. He can be reached We look forward to hearing from you. at [email protected]

iCivics Resources for Getting Involved & Taking Action www.icivics.org This site provides teachers with free resources that improve students’ civic knowledge, civic attitudes, and core literacy skills.

The Judicial Branch

Students will learn about the federal and state courts and what they do. They will explore the courts’ role in fairly settling disputes and administering justice, and the unique role of the U.S. Supreme Court in interpreting the U.S. Constitution.

Check out a quick video (https://www.youtube.com/watch?v=IkBkc2Fxe3I&feature=youtu.be) on the Judicial Branch on YouTube!

Visit www.ksbar.org/lawwise to see archived issues, Law Wise FAQs frequently asked questions, and to sign-up to re- We have a list of FAQs available ceive six issues a year via email. at http://www.ksbar.org/LWFAQ.

The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.