Scholar Exchange: Article III – The Supreme Court Briefing Document

Scholar Exchange: Article III – The Supreme Court Briefing Document

INTRODUCTION

Big Questions

• What is judicial review, and where did it come from? • What is judicial independence, and why do we have it? • What is judicial supremacy, and what have been the arguments for and against it throughout history?

Fun Facts

• More cases came from the Ninth Circuit than from any other lower court, and the Supreme Court reversed lower court decisions 67% of the time. • Justice Kavanaugh and Chief Justice Roberts agreed on outcomes 93% of the time, as did Justices Breyer and Ginsburg. • Justices Ginsburg and Thomas agreed least often—47% of the time. • Despite the polarized nature of the Court’s opinions in some cases, the chief justice agreed with each of the other justices at least 70% of the time and was in the majority in an astounding 97% of the cases. • The U.S. Supreme Court is an Article III court. Justices are appointed by the president and are subject to confirmation by the Senate. They serve a life term. • There are currently eight associate justices on the Supreme Court and one chief justice of the United States.

Let’s begin! At the National Constitution Center, we always start with the text. So, what does the Constitution say about the Supreme Court?

Article III of the Constitution established the federal judiciary as one of the three equal branches of the federal government.

The first sentence of Article III is as follows: “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.”

Like Article II, the text of Article III is actually very short and does not lay out many details on the Court. But Article III itself can be a bit hard to understand without a bit of background first. The basic ideas are pretty simple, but the language is a bit tougher than the rest of the Constitution.

Scholar Exchange: Article III – The Supreme Court Briefing Document

Big Idea: The Constitution’s Article III establishes the national government’s judicial branch—the federal judiciary. Within the national government, the judicial branch is responsible for interpreting the laws. Importantly, the Constitution also promotes the principle of judicial independence—granting federal judges life tenure (meaning that they serve until they die, resign, or are impeached and removed from office). Federal courts—including the Supreme Court—exercise the power of judicial review. This power gives courts the authority to rule on the constitutionality of laws passed (and actions taken) by the elected branches.

Definitions:

• Judicial Review: The Supreme Court has the power to review the constitutionality (meaning, whether the act is proper under the Constitution) of acts of the national and state governments. This is part of the Court’s duty under Article III. • Judicial Independence: The idea that the federal courts—the Supreme Court and lower courts—as part of separation of powers must be independent from the control of the other branches (legislative and executive). This is done by giving judges and justices lifetime tenure and guaranteeing their salaries. • Judicial Supremacy: The idea that the Supreme Court is the final voice on questions of whether actions by the national government (Congress or the executive branch) or state governments are constitutional.

HOW DOES THE SUPREME COURT WORK?

Let’s start with two basic questions:

• How does a case get to the Supreme Court? • And how does a person become a Supreme Court justice?

From there, we will return to the Article III’s text itself.

So, how does a case get to the Supreme Court?

We hear about Supreme Court cases all the time. They cover so many of the constitutional issues that we care most about—from religious liberty to free speech to voting. And these cases can make a lot of news.

But where do these cases start? Most constitutional cases start with a simple argument: The government has violated the Constitution.

• It may be a law passed by Congress, by a state legislature, or by a town council. • Or it may be an action taken by the president or the governor or some other government official—whether it’s an arrest, a new government regulation, or whatever—you name it.

But someone—often a single ordinary American—comes to Court and argues that a law or arrest or regulation violates the Constitution. So, constitutional cases often begin with “We the People.” Or even “Me the individual.”

The Supreme Court receives about 10,000 petitions a year. The justices use the “Rule of Four” to decide if they will take the case. If four of the nine justices feel the case has value, they will issue a writ of certiorari. This is a legal order from the high court for the lower court to send the records of the case to them for review. When all is said and done the Supreme Court will hear about 75-85 cases a year. This tells us that most petitions are denied.

Scholar Exchange: Article III – The Supreme Court Briefing Document

Why? • It’s not the Supreme Court’s job to hear every case. • Article III tells us that only certain cases can be heard there. (More on that in a little bit!) • And since 1925, the justices themselves have had almost total control over which cases they decide to hear each year.

But how does a case end up before the Supreme Court? We will focus here on the federal court system and on the path that nearly every Supreme Court takes. There are exceptions—including cases starting in state courts.

Here’s the process behind how nearly every case works its way up the national court system:

• In nearly every case, someone brings a new case in what’s called a district court. This is the lowest level of court in the national courts system. The district courts are where nearly every case starts—and where most of them end!

• Justices will also take a case when the lower courts cannot agree on how to interpret the law involved, or in which different lower courts have interpreted the law differently. When the lower courts decide cases differently, it can lead to confusion. By taking a case that involves an issue that has led to differing opinions in the lower courts, the Supreme Court creates a precedent that every court in the country has to follow. This guarantees that the laws are applied equally to all people, no matter where they live.

• The Supreme Court only takes cases from state courts when the appeal involves the U.S. Constitution. Thus, the person making the appeal must show that his or her rights, under the Bill of Rights, were denied by the state, or that some error was made in the court that affected their due process rights. Because of these restrictions, most of the Supreme Court’s cases come from the lower federal courts and not from state courts.

• A single judge presides over (or manages) the case, and the case is decided by either a judge or a jury. Someone wins, and someone loses.

• The loser might decide to appeal—or challenge—the district court’s ruling by having the next level of court (the court of appeals) look at the case. Unlike the Supreme Court, the court of appeals does not control which cases it hears. If someone appeals their case this court, the judges must decide it.

• Generally, the court of appeals’ judges have two options: o (1) say that the district court got it right o (2) say that the district court got it wrong—and then explain why and reach a new decision.

• Again, someone wins, and someone loses. And it doesn’t have to be the same people as the first time!

• Finally, the loser in the court of appeals might try to get the Supreme Court to decide her case. The fancy (lawyerly) words for this is that they can “petition for a writ of certiorari” or even if you want to sound like a real insider: “file for cert.” This simply means that the loser (in the court of appeals) wants the Supreme Court to take their case and decide it.

Scholar Exchange: Article III – The Supreme Court Briefing Document

• But that isn’t very likely! The Supreme Court has nearly total control over which cases it takes, and it says no to nearly every petition.

We’ve discussed the most common way a case ends up before the Supreme Court—working its way up the federal courts system. But what are some other paths? • A party can appeal to the Court once the highest state court (only in federal constitutional questions) has made a decision they want overturned. • The Supreme Court has original jurisdiction, which is limited to cases specifically enumerated in Article III (like suits between states).

How many justices does it take to get your case heard?

There are nine justices on the Supreme Court. The justices read the challenger’s “cert. petition”—asking the Court to take the case. Four of the justices must vote to take a case before they decide to hear it. This is known by lawyers as “The Rule of Four.” So, that’s four out of nine justices—just short of a majority. Again, if you want to sound like a real insider: When the Court takes a case, we generally call that “granting cert.”

But again, the Supreme Court rejects nearly every petition. The Court accepts only 60 to 100 of the more than 7,000 cases (some years over 10,000!) that it is asked to review each year. Generally, the Court only takes cases that involve questions in which the lower courts have disagreed on a legal issue or questions of national significance.

Finally, what happens after the Court takes a case?

• The winner and loser from the court of appeals file briefs before the Supreme Court. These are little books that lawyers write—presenting the constitutional arguments on their side of the case. • Others affected by the case can also write briefs—known as “Friend of the Court” or “amicus” briefs—explaining why the Court should choose one side as the winner over the other. (These briefs can come from all sorts of people—ordinary Americans, government officials (at the national, state, and local levels), scholars, businesses, various organizations/groups.) • The justices then read the briefs in the case. • Then, the Supreme Court holds oral argument. This is when the lawyers on each side get to state their case and the justices get to ask questions. (These arguments usually last under two hours—so, the lawyers don’t get a lot of time!) • The justices then get together once a week to vote on the cases. This is known as the justices’ “Friday Conference”—and these conferences are held in secret. Only the justices are allowed in the room. At conference, the justices discuss the cases heard in oral argument, decide by vote which cases to take, and each justice is allowed to speak to their views on the cases before the Court. • The justices give their votes on conference by seniority, starting with the chief justice. • If the chief justice is in the minority (the dissent), then the most senior justice (the justice serving the longest) in the majority assigns which justice writes the majority and if the chief justice is in the majority, he/she assigns who writes the majority. • The chief justice can always assign themselves opinions. This is where a lot of the chief justice’s authority lies! • The justices then spend months writing their opinions in the case. o In nearly every case, one justice writes a majority opinion—which has the support of a majority of the justices. In some cases—often the most closely watched cases—one or more justices might write a dissenting opinion, explain why they disagree with the majority and would decide the case differently.

Scholar Exchange: Article III – The Supreme Court Briefing Document

o And finally, one or more justices might write a concurring opinion—often agreeing with the majority on who should win the case, but offering some additional thoughts on how they think about the constitutional issue in the case. • After the justices finalize their opinions and finalize their votes in the case, the Court’s decision is then released to the public.

HOW ARE SUPREME COURT JUSTICES CHOSEN?

So, that’s how a case gets to the Supreme Court—and how the Court decides it. How does a person end up as a Supreme Court justice, in the first place?

Article II, Section 2, sets out the Appointment Power.

The president has the power to nominate someone to fill a Supreme Court seat. And the Senate has the power to confirm or reject the person that the president chooses. (The “Supreme Court nominee.”) To serve on the Supreme Court, a president’s nominee must receive the approval of the Senate. The Senate has to say “yes.”

Here’s Article II’s text: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” But that’s all that the Constitution’s text says about the Supreme Court nomination process.

The judicial nomination process today—the hearings, the questions how qualified nominees must be—do not come from the Constitution’s text, but are a product of norms created over time and the actions of Congress. Of course, there are exceptions to this general process, but this is how it usually works. Here are the steps in that process today: • A seat on the Supreme Court opens up. So, a justice retires or dies. • The president considers a number of potential people for the position—reading about them, asking for advice from others (advisors, members of Congress, scholars, political leaders, interest groups, etc.), interviewing potential choices, etc. • The president selects someone. • That person accepts the nomination. • The Senate Judiciary Committee—the Senate group in charge of the Supreme Court nomination process—holds confirmation hearings. o The president’s nominee shows up at the Senate. o The senators ask their questions. o The nominee answers them. o The committee votes on whether to recommend confirmation to the rest of the Senate. • The nomination is then sent to the full Senate. • The full Senate debates the nominee and votes on her confirmation: “yes” or “no.” • If she wins Senate approval, she then becomes a Supreme Court justice. • If not, the whole process starts all over again!

TYPES OF CASES THE SUPREME COURT TAKES

So, that’s some key background information. Now, let’s get back to Article III’s text. What sorts of cases can the federal (or national) courts hear?

Scholar Exchange: Article III – The Supreme Court Briefing Document

Federal (meaning courts of the national governments, rather than state courts), lower courts (meaning courts below the Supreme Court) generally have power over cases that came out of diversity of citizens (citizens from different states sue each other), or involve a question concerning national law or under the national Constitution to be resolved. So, the federal courts can hear cases if they: • Involve people from two different states. • Or, if the case involves the Constitution or a national law (or regulation). So, if someone is complaining about what the national government did. For instance, it passed an unconstitutional law, or if someone wants the courts to apply a national law. For instance, a civil rights law to fight discrimination at their job.

The Supreme Court has limited “original” jurisdiction that is specifically listed in Article III—this means that the case begins at the Supreme Court and doesn’t have to go through all of the other courts before getting to the Supreme Court. This is rare. These cases usually involve conflicts between the states. For instance, two different states say that they control the part of a river or certain land.

Remember too that Congress controls the details of the national court system and even the cases the Supreme Court gets or must take. And this also means that Congress can freely change the size of the Supreme Court (for instance, some of you might have heard about “court-packing”), its jurisdiction (what cases they can or must hear), and the details of the federal court system at any time (how many judges, how many courts of appeals, etc.).

THE EVOLUTION OF THE SUPREME COURT

The early Supreme Court looked very different—it was in the basement of Congress and justices lived together in cramp spaces for brief periods in which the Court met (usually only two months out of the year). Otherwise, circuit riding occurred—meaning each justice was assigned to oversee a federal circuit and literally had to ride out to it to attend court sessions. This was hard work!

Today, the Court has a beautiful building of its own. The justices don’t have to ride circuit. And they can choose which cases they want to take. It’s a great job!

Interestingly, Article III says nothing about what a Supreme Court justice does. It only states the jurisdiction (in other words, the power) the court has and leaves the details to Congress to figure out. Therefore, the details of the job have been created over time both by acts of Congress (starting with the Judiciary Act of 1789) and practices of the Court over time.

Most importantly, it was Congress in the Judiciary Act of 1925, with the pressure and leadership of Chief Justice (and former president) Taft, that gave the Court broad control over the cases it took. Before 1925, the Court had very limited control over the cases that came before it.

Long-term, the effect has been an ever-shrinking docket (or caseload), with the Court often taking fewer than 100 cases in a single term. Between the 2007 and 2019 terms, SCOTUS released opinions in 991 cases, averaging 76 cases per year. Last year (2019), it decided only 63 cases.

It also means that Congress, at any time, could change and go back to the former system and reassert control over the Court’s docket and which cases it must take. Similarly, although the number of justices—nine—has been the same since 1869, it is a matter of Congress’s discretion—that is, they could go back to the five in the 1790s, six to seven in the early 1800s, or even 10 during the Civil War.

Scholar Exchange: Article III – The Supreme Court Briefing Document

The Court Calendar

The Court’s term typically lasts from the first Monday of October to the end of June or early July (this past year). The Court sets oral argument for cases which usually last through April and occur the first two weeks of each month. Opinions are released throughout the term, with the final opinions (often on the most important and controversial cases) coming in the end of June—although there is no deadline because the justices set their own docket!

Remember, all of this is not in the Constitution itself, but the result of over two centuries of creating norms through the Court and Congress.

Stats About Supreme Court Decisions

Also, let’s take a look at a few basic facts about the Court—not every case is a 5-4 decision! • 19 of the 63 decisions in the last term were unanimous. 13 of those cases were 5-4 decisions. • Around 67% or 2/3 of the cases led to a reversal of the lower courts. • Some circuits tend to bring more appeals than others—especially the Ninth circuit (which includes California, a very large state!), as 10 cases came from the Ninth circuit, 11 from state courts, 7 from the Fifth and 11th circuits, but only one from the First! • The number of 5-4 decisions varies year to year. There were 13 last year, on average 15 between 2005 and 2019 with a low of four in 2015 (5% to 33% of total opinions). Alignments of justices varied too—from four to 10 different lineups of justices in 5-4 decisions over that time, meaning that it is not always the same people!

ANALYZING THE TEXT OF ARTICLE III

Article III, Section I

“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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Note that the judicial power, like the executive power, is not defined but is left a broad term. The “vesting clause” means that power is vested in one supreme court and inferior Courts that Congress may establish.

Judges hold their offices for life (“during good behaviour”) and thus, this creates an independent judiciary—they cannot be fired, fined, or otherwise controlled once confirmed to the Court. The independence of the judiciary is a key element of the American system—judges can only be removed by impeachment and as we will discuss, this has happened only once in American history and the justice was not removed!

Article III, Section II

Section II defines jurisdiction of the federal courts.

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United

Scholar Exchange: Article III – The Supreme Court Briefing Document

States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;-- between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects....”

In the above passage, a suit between citizens of different states is classified under “diversity jurisdiction.”

“Original jurisdiction” of the Supreme Court is described by the following:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” This means that the case starts at the Supreme Court, whereas, appellate jurisdiction means that there must be an appeal to the Supreme Court—or that is, parties ask it to review a lower court decision.

Section II also grants the right to a jury trial in criminal cases, grants appellate jurisdiction over law and fact subject to regulations and exemptions according to Congress

Article III, Section III

Section III defines treason and makes it very difficult to convict a party a “treasonous.”

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

THE ORIGINS OF THE SUPREME COURT

So, where exactly did the framers get the idea for a Supreme Court? Why did they think it was important?

As we’ve discussed previously, according to Baron von Montesquieu, who revised John Locke’s three branches, the three branches of government were the legislative, executive, and judiciary.

Pre-Constitution State Judiciaries

State constitutions were the first place in which the United States experimented with a judiciary (there were colonial courts, of course!), but it took experience for the framers to turn towards the need for a stronger judicial power.

The idea of a Supreme Court such as the one in our constitutional system grew out of experience under the state constitutions, passed after Continental Congress in May 1776 declared that colonies should pass new state constitutions. Many of those early state constitutions were radical in their embrace of legislative supremacy and critics—included Jefferson, Adams, and Madison—that this was a significant separation of powers issue. As the eminent historian Gordon Wood writes, the primary beneficiary of this “new, enlarged definition of separation of powers was the judiciary.”

At the time of independence, with legislative supremacy established, the judiciary was “virtually ignored or considered to be but an adjunct of feared magisterial power.” It was only the experience under the state constitutions and the Articles of Confederation, which created no federal court system, that left the founders believing a judicial department with independence and respect was one of “the three capital powers of Government.”

Scholar Exchange: Article III – The Supreme Court Briefing Document

Thus, this experience under early state constitutions created a “growing recourse to judicial settlement.” By 1787, Alexander Hamilton was arguing in the New York Assembly that by the state constitution, all were prohibited from being deprived of their rights but by due process of law-terms, which were only applicable to the proceedings of courts, “they can never be referred to an act of the legislature.” He concluded that the judiciary was the “only body of men who will have an effective check upon a numerous assembly.”

Thus, by the 1780s, the judiciary in several states—New Jersey, Virginia, New York, Rhode Island, and North Carolina—in Wood’s words were “gingerly and often ambiguously moving” in important cases towards imposing restraints on what legislatures could do and thus toward what we know as the power of “judicial review.”

Still, for many, vesting judges with the authority to declare laws void ran counter to the Blackstonian (William Blackstone, the great English legal theorist) legislative sovereignty and supremacy and the “intense fear” of Americans regarding judicial power—in 1787, John Dickinson still could say that “no such power ought to exist” and James Monroe could say that judicial review was a question “calculated to create heats and animosities that will produce harm.” An executive veto, some thought, was more consistent with free government.

Supreme Court Debates at the Constitutional Convention

Recall, too, that during the Constitutional Convention, James Madison and supporters of the Virginia Plan wanted a council of revision that would give the executive and judiciary together a limited but not final veto of “unwise and unjust measures” of the legislatures (state and federal) which “constituted so great a portion of our calamities” according to Madison. But the growing criticism and attitudes of Americans of mistrust of legislatures produced arguments that the legislatures must be restrained by the “bounds of reason, justice, and natural equity” because “will and law” were not synonymous in free governments or those based in popular sovereignty. Laws that were contrary to nature, justice, morality, reason or benevolence were null and void.

So, think of two different sides of the issue: On the one hand, many had grown worried about legislative supremacy and thought an independent judiciary would help to check the excesses of Congress. On the other hand, many founders also thought judicial review should be an extraordinary exercise of judicial power and the judiciary should normally differ to the popularly elected branches. Remember, for the Anti-Federalists, too strong an independent judiciary looked like the creation of aristocracy versus popular sovereignty and democracy.

Judicial independence matters because the framers learned from experience under the British system—judges were not independent at the time in the English system (an English Supreme Court was only created in 2009!) and instead were seen as officers of the Crown who carried out the tyranny of the king.

Those in favor of a stronger judiciary looked at the need for settlement of constitutional issues, the need for national uniformity, concerns about Congress being too powerful, and the idea that the Constitution was supreme law created by the people—not Congress—and thus, the judiciary needed to enforce the fundamental law over ordinary laws of Congress.

Critics of a stronger federal judiciary saw it in tension with democracy and as part of a potentially aristocratic government (the president, the Senate, the Supreme Court) which would grow stronger by taking powers away from the states and the people and that judicial review would be a way of removing the power to decide constitutional questions from the popular branches.

Scholar Exchange: Article III – The Supreme Court Briefing Document

RATIFICATION DEBATES OVER THE SUPREME COURT

If the Supreme Court was relatively new, was it heavily criticized during ratification? Why did Anti-Federalists fear it so much?

One of the key criticisms of the Constitution from Anti-Federalists had to do with the federal judiciary—not just the Supreme Court, but the whole structure. They felt it was part of the threat to federalism—the division of powers between the national and state governments—represented by the new Constitution.

They feared judicial tyranny, which is the potential that the Constitution creates a judiciary powerful enough to threaten the integrity of state courts, with broad jurisdiction of courts over matters of fact and law that was too extensive.

Why is the judiciary seen as such a threat to republicanism and liberty?

Disproportionate amounts of time were spent by Anti-Federalist authors on the judiciary. Of the list of evils conjured up by opponents of the Constitution, the most repeated charges were “sober predictions”—the specter of a distant government with extensive powers of taxation, control of the judiciary, and a standing army to enforce its arbitrary decrees (like British rule).

The most ominous threat was more insidious because it was covert or secret—it was seen by Anti-Federalist as an effort to undermine freedom of the press, make it impossible to resist tyranny under the Constitution with the dominance of the Federalist press. They were particularly concerned about threats to liberty posed by seditious libel, dangers of such prosecutions, and, looking to trial of leading Anti-Federalist printer Eleazer Oswald in 1782, fear of using it to stifle political opposition. • In 1788, Oswald, published of the Independent Gazetteer in PA, had conflict with Andrew Brown, former editor of the Federal Gazette, Oswald published critical essays, Federalist editor demanded Oswald reveal names of those authors who attacked him, initially, released by Anti-Federalist judge, but Chief Justice Thomas McKean, used contempt to deny Oswald jury trial. Anti-Federalists saw it as proof judges would use interpretative authority to expand powers of government

Popular Anti-Federalist thought saw federal judiciary as serious defect in the Constitution. Federal Farmer said, “It is true, the laws are made by the legislature; but the judges and juries, in their interpretations, and in directing the execution of them, have a very extensive influence for preserving or destroying liberty.”

Brutus on the Federal Judiciary

Brutus was a pseudonym for one of the Anti-Federalists who wrote papers opposing ratification of the Constitution. He laid out three principal problems. He believed the judiciary would: 1. Extend legislative authority 2. Increase the jurisdiction of the courts 3. Diminish and destroy authority of Congress and the federal courts as a result

Federal judiciary clearly would exercise a final power of interpreting the meaning of the Constitution and laws, with jurisdiction extended to equity cases, giving it “considerable latitude of construction.” Brutus wrote, “And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the Constitution. The opinions of the Supreme Court, whatever they may be,

Scholar Exchange: Article III – The Supreme Court Briefing Document

will have the force of law; because there is no power provided in the Constitution that can correct their errors….the legislature must be controlled by the Constitution, and not the Constitution by them.”

On the issue of federalism, the federal judiciary would result in an “entire subversion of the legislative, executive and judicial powers” of the states. Federal judges would have a stake in “using this latitude of interpretation” to broaden Congress’s powers, which would enlarge their own authority.

Judges are rendered totally independent of the people and legislature, both by their offices and salary, so cannot be corrected or removed unless there certain convictions are had (bribery, reason, high crimes).

Brutus 11 (his 11th paper) argues that independence is not necessarily beneficial and part of a democratic republic: “They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them...” (this is potentially a separation of powers problem).

Thus, Brutus does not see judicial independence as Hamilton does—this is not beneficial to the people or part of the separation of powers, but instead works against popular sovereignty.

Now, we look at both nature and extent of judicial powers and how those powers will be exercised, according to Brutus. Brutus 11 looks at the nature and extent of the power granted to the federal judiciary and sees this as equal to power of state courts with general jurisdiction. It is the power to resolve all questions on any case on the construction of the Constitution.

Equity in this respect means a “correction of that, wherein the law, by reason of its universality, is deficient.” It is traditionally a power of state courts (use of injunctive relief in order to end harm to plaintiff or return them to their state before harm, restore).

According to Brutus, judicial power will operate to entirely subvert state powers, every adjudication will affect the limits of state jurisdiction, judiciary will lean strongly in favor of general government. It looks at the extent of congressional power—particularly the “Necessary and Proper” clause and the military powers—and says for every extension of the power of the legislature there will be an increase of the power of the courts and the “dignity and importance of the judges,” which will be in proportion to the extent and magnitude of the powers they exercise.

This relates closely to judicial review. This is the power of the Supreme Court to, in “the last resort”, determine all questions on the meaning, construction of the Constitution. From the Preamble, judicial review aligns with general welfare. With preservation of internal peace as the ultimate goal of the Constitution, the Courts will use principle to expound the Constitution and give it latitude for every department to take “cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as related to the administration of private justice, and to regulating the internal and local affairs of the different parts.”

According to Brutus XIV, the problem of appellate jurisdiction is one of the “most objectionable parts” of the Constitution. He says it is a “New and unusual thing to allow appeals in criminal matters,” contrary and dangerous to the lives and liberties of citizens who have a right to a fair and impartial trial by a jury of peers. Superior tribunal can reexamine all the facts and law, frequently new facts will be introduced, so the Supreme Court can revisit all the merits of the case.

Scholar Exchange: Article III – The Supreme Court Briefing Document

Another reason for their skepticism and criticism was the Anti-Federalist strongly valued juries. Elite Anti-Federalists saw the jury as a check on the power of judges.

Federal Farmer (another writer of the Anti-Federalist papers) asserted the superiority of the jury and compared it to the legislature, in that it can decide both law and fact. Expansive jury powers controlled the judiciary and were essential for democracy. Federal Farmer’s had an activist vision of the jury part for a broader commitment to popular constitutionalism in which mediating elites would have little function—meaning the body of the people had the right of control in important concerns. There would be faith in jury, not judges, to interpret the law. Jury service would be a form of civic education. Though, a problem here is that the Constitution gives federal judiciary power to decide both law and fact.

ORIGINS AND RATIFICATION DEBATES ON JUDICIAL REVIEW

[For context on the period of ratification, on June 21, 1788, the Constitution became the official framework of the government of the United States of America when New Hampshire became the ninth of 13 states to ratify it.]

Was judicial review something the framers considered and meant to put in the Constitution? How did the Supreme Court come to hold that power?

Judicial Review was a power understood by the framers, but different from how we conceive of it today.

The origins of judicial review in the constitution can be described using the ratification debates as a foundation. Judicial review was a crucial issue of American constitutional history. Whether judicial review was originally intended or understood to be part of the Constitution, debates over the council of revision made clear framers did intend judicial review to apply to the realm of national legislation to maintain boundaries between the branches.

Note that the Constitutional Convention barely discussed Article III relative to the major issues at the convention (representation, the presidency, powers of Congress, slavery/slave trade) and did not include any textual reference to the power of judicial review. Thus, it was during the ratification debates that the power of judicial review was more widely discussed by both proponents and opponents of the Constitution.

Recall from last class, the Supremacy Clause drops judicial review into Constitution. Delegates knew state judges had sometimes tried to exercise judicial review, but these actions had been bitterly contested by legislatures in New York and Rhode Island.

Opponents of the Article II council of revision emphasized separation of powers, and Luther Martin argued judges would exercise their own negative on legislation by determining the “constitutionality of laws.”

Federalist Papers on Judicial Review

Alexander Hamilton, Federalist #78 discussed the federal judiciary at length.

Hamilton’s idea of judicial power evoked and followed his idea of executive power and reviewed federal acts as a way to protect individual liberty, ensure good government, and oversee “steady, upright” administration of the law—like the energy needed in the executive branch. Steady administration of law requires discretion.

Scholar Exchange: Article III – The Supreme Court Briefing Document

He emphasized a judicial duty, following English ideas, to declare “all acts contrary to the manifest tenor of the Constitution void,” interpretation of laws was the “proper and peculiar province of the courts.” It was the judiciary’s duty to review government acts.

He connected this idea to popular sovereignty—elected or popular branches can claim to speak for the people, but no branch has legitimate exclusive claim to speak for the people—only the Constitution does because it is based in popular sovereignty. In this manner, the judiciary has a special duty to protect the people’s commands and their rights not granted to the national government.

Hamilton also emphasized the judiciary’s responsibility to protect and uphold individual rights. An independent judiciary (good behavior tenure, fixed salary) provided that “inflexible and uniform adherence to the rights of the Constitution and individuals” with “essential safeguard against the effects of occasional ill humours in society.”

Federalist #79 discusses the defends the judiciary as well. It says that life tenure for good behavior “bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States….”

Federalist #80 says there were five proper objects for the federal judiciary:

1. All those which arise as laws of the United States were passed “in pursuance of their just and constitutional powers of legislation;” 2. All which concern the execution of the provisions expressly contained; 3. All those in which the United States are a party; 4. All those which involve the peace of the Confederacy—intercourse between the United States and foreign nations or interstate; 5. All those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

Judicial review fulfills the need for a constitutional mode of enforcing restrictions upon the states. Judicial review of state actions in “manifest contravention” to the Constitution is a better option than having direct negative upon the states (remember, as part of the Virginia Plan, James Madison wanted a national power to veto state laws). Controversies between the nation and its members or citizens can only be properly referred to the national tribunals. Hamilton thought we must avoid dissension and the “private wars” of 16th-century Europe.

John Marshall in the Virginia Ratifying Convention made arguments in support of judicial review as well. Marshall denied George Mason’s criticism that the jurisdiction of federal courts would expand because they had jurisdiction over cases under thaws of Congress, who had essentially unlimited powers—Marshall like other Federalists thought Congress’s powers were enumerated and limited and that if Congress tried to make a law outside those powers, judges would find it an infringement of the Constitution they were obligated to defend and “declare it void.” Thus, Marshall endorsed judicial review during ratification.

EARLY CONGRESSIONAL ACTIONS AND THE “REMOVAL DEBATE”

There was one major early action and one major early debate regarding the judicial branch. These were the framing of the Judiciary Act of 1789 and the “Removal Debate.”

Scholar Exchange: Article III – The Supreme Court Briefing Document

The Judiciary Act of 1789 was chiefly written by Oliver Ellsworth. The key takeaway here is that because Article III was so broadly written and the Constitutional Convention spent so little time on the details of the federal judiciary, they left that work to the First Congress. Article III grants the power to Congress, but it does not create the federal judiciary. Therefore, one of the most important early debates and actions of the new national government was the creation of the federal judiciary—the federal courts system, circuit riding, creation of judicial districts, the Office of Attorney General, creation of U.S. attorneys and U.S. marshals in each judicial district. This Act sets up the Supreme Court with six justices—one chief justice, five associate justices.

Many in Congress still feared creating federal trial courts with power over law and fact, so they only wanted a Supreme Court. William McClay wrote in his diary in July 1789 that, “I opposed this bill from the beginning. It certainly is a vile law system, calculated for expense and with a design to draw by degrees all law business into the Federal courts.”

The Removal Debate occurred in May of 1789 when Representative William L. Smith of South Carolina objected a plan proposed by James Madison. Madison moved to create departments of foreign affairs, war, treasury each headed by a secretary appointed by the president with advice and consent, removable by president. Smith objected, inquiring further about the removal process.

Some representatives assumed judiciary would have final say. Smith agreed that they should leave the question to the judiciary, otherwise Congress can legislatively construct the Constitution and infringe on judicial powers. Madison seemed to acknowledge the principle of judicial review, but he seemed to say it is improper and unintended, noting that, “Courts are generally the last in making their decision, it results to them, by refusing or not to execute a law, to stamp it with its final character. This makes the judiciary paramount in fact to the legislature, which was never intended and can never be proper.”

Ultimately, judicial review was not invented by John Marshall nor was federal judicial predominance. They started in the early national period with assistance from states. Beginning in 1793, neutrality gave states reason to create a uniform set of commercial legal principles which prompted federal courts to be consistently active in adjudicating trade disputes, the most important sector of the economy.

EARLY STATE AND SUPREME COURT CASES SHAPED FEDERAL JUDICIARY POWER

Early cases in both state courts and the Supreme Court suggested the power of judicial review. Alexander Hamilton was a leading lawyer in these cases.

State Court Cases

Rutgers v. Waddington (1784) • In this New York case, Alexander Hamilton argues for judicial review as an “extraordinary act.” The judiciary’s essential purpose was to safeguard people’s liberty and provide due process of law in ordinary, everyday legal matters. This “extraordinary act” was derives from common law principles. • His argument was intended not as an attempt to override or nullify the Trespass Act in question as unconstitutional and void but to override the effects of the law for his client.

Trevett v. Weeden (1786-87) • This Rhode Island case decision says that laws must be inherently reasonable and just to be law.

Scholar Exchange: Article III – The Supreme Court Briefing Document

• James Varnum, the defense attorney in the case, argued that there was fundamental law and ordinary statutory law. Thus, legislation could never be contrary to the principles of the Constitution because the Constitution’s principles “were ordained by the people anterior to and created the powers of the General Assembly.” • Thus, the legislative powers “in every possible instance, are derived from the people at large.” Under the social contract, the people surrendered some of their natural rights to the government—thus, if the legislature acted against the reserved rights of the people, it was the duty of the judiciary to measure the laws of the legislature against the constitution and rights of the people.

Supreme Court Cases:

Heyburn’s Case (1792) reviewed the 1792 Invalid Pensions Act and found that the duties granted to circuit judges to review Revolutionary War pension claims were improper.

Hylton v. U.S. (1796) was the first Supreme Court review of constitutionality of a federal law. It was argued by Alexander Hamilton. The Court decided that the tax at issue was constitutional and broadly construed Congress’s power to lay taxes, maintaining the ability of Congress to exercise concurrent tax power.

Ware v. Hylton (1796) decided that treaties made under the Constitution (Article I, Senate power for advice and consent, Article II power) supersede any state law under the Supremacy Clause. In striking down the Virginia law, the Supreme Court utilized the power of judicial review.

Calder v. Bull (1798) is the case in which Justice James Iredell confirms the duty and power to review legislative acts, to ensure they are valid exercises of authority under the Constitution. But review of state constitutions is not part of the judicial review power.

MARBURY V. MADISON (1803) AND ITS AFTERMATH

Background of the Case - Marbury v. Madison

To set the scene for this case, Federalist and former Adams Secretary of State John Marshall is now chief justice of the Supreme Court. The case centers around Adams’ so-called “midnight appointments” of justices of the peace of D.C. Madison, who replaces Marshall as secretary of state, does not issue commissions for these appointments, thereby blocking the appointments.

Prior this event, we must review the election of 1800, which was highly contested, and the events leadings up to the Marbury case.

At the time, there was a long lame duck period between the November election and the inauguration of a new president. Congress met in December 1800. Federalists still controlled the government until March 4, 1801. Adams appointed John Marshall as secretary of state, and then appointed him also as chief justice of the United States when that position became vacant (John Jay turned down a second chance to be chief justice in December 1800, Marshall was nominated on January 20, 1801, confirmed 14 days later by the lame-duck Senate).

The Federalist-dominated Congress passed the Judiciary Act of 1801, which created circuit courts of appeal much like they are today and relieved the justices of the Supreme Court of their obligation to “ride circuit.” It also increased the jurisdiction of the federal courts. Adams immediately appointed 16 new judges to these courts—all Federalists—and all were confirmed by the Senate.

Scholar Exchange: Article III – The Supreme Court Briefing Document

Now, let’s go back to the “midnight appointments,” one of which involved William Marbury. Marbury was born in Maryland on a tobacco plantation, and he had achieved great success as a financier, with strong ties to the Federalists. He had become quite prominent in Washington. Marbury and several others brought a lawsuit to compel Madison to deliver their commissions. They asked the Supreme Court, in its original jurisdiction, to issue a writ of “mandamus”—a court order directing Madison (but really Jefferson) to carry out his lawful and non-discretionary duty to deliver the commissions.

Marshall’s own brother, James, was a newly commissioned circuit judge for D.C., who delivered a few commissions to appointees in Alexandria, while other commissions lay undelivered.

Let’s discuss the reason behind Madison and Jefferson’s blocking of the appointments.

February 27, 1801, just days before Jefferson was to take office, Congress passed another bill. The Justice of the Peace Act provided Adams with the opportunity to appoint 42 justices of the peace to five-year terms in Washington and Alexandria. Most of Adams's nominations went to deserving Federalists, and all were confirmed by the Senate. William Marbury was one of those appointed.

Judicial commissions were signed by Adams, and the seal of the United States affixed, on March 3, 1801. These were known as the “Midnight Judges.” John Marshall, as secretary of state, was responsible for delivering the commissions. Of those not delivered, one belonged to Marbury. Jefferson ordered his secretary of state, James Madison, not to deliver the commissions, although eventually some were delivered.

Monumental Supreme Court Decision

As the new chief justice of the Supreme Court, Marshall declares Sect. 25 of the Judiciary Act of 1789 to be unconstitutional. The provision allowed courts to order the executive to deliver judges’ commission, so in this case, Marbury does not get his commission and the court cannot grant his remedy.

Opinion of the Court: 1) That by signing the commission of the Mr. Marbury, President Adams appointed him a justice of peace for D.C. and giving him a legal right to the office for five years. 2) That having the legal title to this office he had a right to the commission and the refusal to deliver it was a plain violation of that right. 3) That he is entitled to the remedy for which he applies, but this depends on the writ applied for and the powers of the Court.

Marshall notes that the Constitution is based on the rule of law, meaning “the government of the United States of the United States has been emphatically termed a government of laws & not of men” and it would cease to deserve this “high appellation” if the laws granted no remedy for violations of vested legal rights. He writes that the “very essence of civil liberty” consists of the right of individuals to claim the protection of the laws when injured—and the government’s duty is to afford them that protection as part of the social contract.

This is the clever tactic of Marshall—he says that Marbury clearly has the right to his commission and to hold office, but denies that the Supreme Court has power to grant the writ of mandamus applied for because Section 25 is unconstitutional (which also secures to the Supreme Court the right to review acts of Congress for their constitutionality, or judicial review)

Scholar Exchange: Article III – The Supreme Court Briefing Document

“Repugnancy” test for constitutionality of laws decides that the authority given to the Supreme Court in Article III to issue writs of mandamus does not include power to issue them to public officers and if an act is repugnant to the Constitution, it cannot become the law of the land. Essential to all written constitutions, Marshall wrote, was that “a law repugnant to the Constitution is void” (echoing Hamilton) and that “courts, as well as other departments, are bound by that instrument.”

Popular sovereignty applies in this decision as well. The people had an original right to establish such principles as would “conduct to their own happiness” and the principles established are fundamental. Thus, the “original and supreme will” organizes the government, assigns powers to different departments, and establishes limitations on this basis.

Federal judges swear to administer justice and to faithfully and impartially discharge their duties “agreeably to the constitution and laws of the United States,” bound by this oath and that instrument.

Finally, Marshall famously notes that, “It is emphatically the province and duty of the judicial department to say what the law is” (as posted in the Supreme Court’s halls!), and if two laws conflict with each other, the courts must decide on the operation of each.

Remaining Questions from the Marbury Decision

The question remains as to whether the decision is proper or if Jefferson is right that all departments have a duty to judge constitutionality of laws for themselves (departmentalism).

Jefferson wrote to Abigail Adams in September 1804, arguing that “nothing in the Constitution” gave judges the right to decide for the executive the validity of the sedition law—judges who believed it was constitutional had a right to pass a sentence of fine and imprisonment, but the executive believing the law was unconstitutional were “bound to remit the execution of it” as part of the system of checks and balances. In an 1820 letter, Jefferson stated that thinking of judges as the “ultimate arbiters of all constitutional questions” was a “very dangerous doctrine” and would place the country under the “despotism of an oligarchy.” Jefferson complains that Federalists retired into the judiciary as a “stronghold” and “from that battery all the works of Republicanism are to be destroyed.”

In an 1834 letter, James Madison stated that all three branches were “equally bound to support the Constitution” and to be guided by its text “according to its own interpretation of it.” But he added that without losing sight of the duty of all three branches, the “surest expositor of the Constitution” will be the judiciary, which will give the “ultimate discussion and operative decision” to constitutional questions.

Ultimately, there is still a question of the legitimacy of Marbury. Scholars mostly accept the legitimacy of Marbury, but the debate is primarily about judicial review versus judicial supremacy. That is, whether or not the Supreme Court should be the final arbiter of constitutional questions in our system.

JUDICIAL AFTERMATH OF THE MARBURY DECISION

Stuart v. Laird (1804). The decision came a mere week after Marbury, and concerned the decision of a circuit court judge whose position was eliminated by the 1802 Judiciary Act and the legitimacy of that judgment. The same attorney who represented Marbury—Charles Lee—represented Stuart, who argued that the 1802 act was unconstitutional and that only the court who issued a decision could enforce it, while Laird argued the Supreme Court should uphold the ruling.

Scholar Exchange: Article III – The Supreme Court Briefing Document

The decision of this case sustained the Judiciary Act of 1802, which the Jeffersonian Republicans and Jefferson administration passed to replace the now rescinded Federalist Judiciary Act of 1801. The 1801 act reduced the Supreme Court to five members, while the 1802 act restored it to six (a seventh seat would be added in 1807, two more in 1837). Additionally, the 1801 act added new circuits and ended circuit riding, while the 1802 act restored circuit riding which had effectively ended the Supreme Court 1802 term by postponing it until February 1803. This was a political decision made to ensure that the Supreme Court could not rule immediately on the act’s constitutionality.

Unanimously, the Supreme Court decided that Congress has the constitutional power to create and abolish lower federal courts. Remember, this was a deeply contentious political atmosphere, and the federal judiciary was one of the most looming, divisive issues—the new Jeffersonian-Republican Congress eliminated a whole section of the federal judiciary and a week after Marbury, the Supreme Court upheld it.

The judiciary was so politicized at this moment that Justice Samuel Chase in 1804 became the only Supreme Court justice in history to be impeached. Chase was a Federalist and Jefferson believed him to be biased and wanted him removed from the Court. In 1803, the year of Marbury, Chase gave a charge to a federal jury, criticizing the actions of Jefferson and his congressional allies in passing the Judiciary Act to “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.” Ultimately, while the House did impeach Chase, the Senate voided to acquit.

Fletcher v. Peck (1810) upheld the right of the Supreme Court to declare a state law unconstitutional.

Martin v. Hunter’s Lessee (1816) rejected the idea of a compact theory of the union and established its jurisdiction over state courts on matters of constitutional interpretation.

Dartmouth College v. Woodward (1819) prevented a state from altering a contract for a private corporation under the “Contracts Clause.”

Cohens v. Virginia (1821) established the principle that the Supreme Court could review a state court’s decision on any matters touching upon the power of the national government.

Marshall, speaking on the role of the judiciary before the Virginia Constitutional Convention, defended judicial independence as key to the American judiciary. He ended his speech by saying, “the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary. Will you draw down this curse upon Virginia? Our ancestors thought so: we thought so till very late.”

Cases Related to Native Americans

Big Idea: In a series of cases in the 1820s and 1830s, the Marshall Court had to deal with major questions about the relationship of the federal government and Native Americans. What power did the federal judiciary have over the Native American tribes? How should the tribes be treated—were they a foreign nation or were they part of the body politic under the Constitution?

Johnson v. McIntosh (1823): The Court deals with the complex and difficult question of original acquisition—that is, did the Europeans who arrived in the New World have proper claim to the lands they acquired or took from Native Americans? How should courts deal with that question?

Scholar Exchange: Article III – The Supreme Court Briefing Document

• In a unanimous decision from the Marshall Court Marshall finds that private citizens cannot buy land from Native Americans, while stating the “Discovery Doctrine.” Under common law, aboriginal title to land is inalienable and therefore, McIntosh could not maintain his action for ejection. • Johnson (and his descendants) claimed the title from the purchase of Native American land in 1773 and 1775. McIntosh obtained a land patent from the federal government to what he claimed was the same land and filed an action for ejection. • “Discovery Doctrine” comes out of Marshall’s lengthy discussion of the history of European discovery and occupation of the Americas. The notion is that European discovery of land creates a claim of sovereignty over it which extinguishes the existing aboriginal land title, which Marshall says was the “right of occupancy.” • Marshall wrote that the question presented to the Court was similar to that in Fletcher v. Peck, which grew out of a sale made by the state of Georgia of a large tract of country within the limits of the state and a claim was made subsequently by a sub-purchaser of the land—the question was whether the land was in the state of Georgia or the United States. That opinion treated Indian title as entitled to the respect of all courts until legitimately extinguished but confirmed the principle recognized by all European governments since the first settlement of American that “absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring.” • The significance here is that Marshall was recognizing that the power possessed now by the federal government to grant land based on the validity of titles given by grantees or previously by the Crown had “never been questioned in our Courts,” because absolute title could not exist in different persons or governments at the same time and “all our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy.” • Marshall recognized the violence and conflict at the heart of this history but noted that “Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.” But Marshall also argued that the Indian tribes of America were “fierce savages, whose occupation was war,” and to leave them in possession of their country “was to leave the country a wilderness” and that “frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued” and European “policy, numbers, and skills, prevailed.”

Cherokee Nation v. Georgia (1831) was a key case in the growing dispute between Georgia and the Jackson administration and the Cherokee nation—the Cherokee nation asked the court to issue an injunction to restrain Georgia from the execution of certain laws they said would “annihilate the Cherokees as a political society” and allow the state to seize tribal lands. • Marshall immediately goes to the question of which issues can properly reach and be adjudicated by the Supreme Court: “If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts, and our arms, have yielded their lands...” • The question was one of jurisdiction: could the Court take this case under Article III? Marshall says Article III gives the court power over cases and “controversies” that are between states or the citizens thereof and foreign states, citizens, or subjects. The Supreme Court also has original jurisdiction in all cases in which a state is a party. So, the Court needed to determine with the Cherokee Nation was a foreign nation for purposes of jurisdiction. • Chief Justice Marshall here argues that the Cherokee Nation is a “dependent nation,” analogous to a ward of the government, and therefore, the Supreme Court has no original jurisdiction over the Cherokee Nation’s claim against Georgia

Scholar Exchange: Article III – The Supreme Court Briefing Document

• Marshall says that the Nation’s lawyers showed that the Cherokee Nation was not a state of the Union and insisted that they were individual aliens who did not owe allegiance to the United States. Thus, a collection of aliens composes a state and must be a foreign state. • The meaning of “foreign state” must be held with “strict propriety,” the relation of the Indians to the United States Marshall says is “marked by peculiar and cardinal distinctions which exist nowhere else.” • Marshall says the Indian territory is part of the jurisdictional limits of the United States, acknowledged in treaties, intercourse with foreign nations, but despite their right to occupancy of their lands, Indian nations should be seen as more like domestic dependent nations that occupy territory, are in a state of pupilage. • At the time of ratification of the Constitution, Marshall says that the “idea of appealing to an American Court of Justice for an assertion of right or a redress of wrong had perhaps never entered the mind of an Indian or of his tribe.” • Marshall points to the language of the commerce clause (“regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) to show that the Constitution’s text contradistinguished the Indian territory and tribes from foreign nations. • Therefore, the Court could not grant the injunction because the Cherokee nation had no rights which could be asserted before the Supreme Court for redress

Worcester v. Georgia (1832) was decided just a year after Cherokee Nation v. Georgia. Here, Marshall took on one more case out of the disputes between Georgia and the Five Tribes. Samuel Worcester was a citizen of Vermont who was condemned to four years of hard labor in the penitentiary of Georgia under an act he claimed to be unconstitutional (the law prohibited non-Native Americans from being on tribal lands without a state license) • Worcester was a defender of Native sovereignty, a Biblical translator, and a printer who helped start the first Native American newspaper. • The Cherokee Nation hired former Monroe and John Quincy Adams administration Attorney General (a record 12 years!) to defend them before the Court. • Only a year after Cherokee Nation, Marshall seemed to take a different position. Now, Marshall stated that the Cherokee nation was a “distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force and which the citizens of Georgia have no right to enter...” • Looking at the history of treaties between the U.S. and the Cherokee, the 1791 treaty acknowledged that the nation was under the protection of the United States and no other sovereign, guarantee to the nation that all their lands are not ceded (the U.S. does, no other sovereign), grants the U.S. the “sole and exclusive right of regulating their trade.” • Marshall said that the Indian nations had “always been considered as distinct independent political communities, retaining their original natural rights as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast....” (“Discovery Doctrine”). • Thus, the Georgia law had the effect of forcibly interfering with the relations established between the U.S. and Cherokee Nation, “the regulation of which according to the settled principles of our constitution, are committed exclusively to the (federal government).” • Only the federal government could regulate the relationship between the two entities. Thus, Marshall struck down the state law and ordered Worcester to be released from prison. Afterwards, when Georgia refused to release Worcester and his co-defendant from prison, Georgia Governor Lumpkin accused the Supreme Court of attempting to overthrow state power and jurisdiction. He was determined to face “this usurpation of federal power with the most prompt and determined resistance,” which happened just weeks before South Carolina issued its Nullification Ordinance, setting off the “Nullification Crisis” resolved by President Jackson’s threat of military action in South Carolina.

Scholar Exchange: Article III – The Supreme Court Briefing Document

• Ultimately, the Cherokee by the end of 1835 had signed a removal treaty (most Cherokee did not support it), resulting in the 1838 “Trail of Tears.”

WHAT IS “JUDICIAL SUPREMACY”?

Today, we hear about “judicial supremacy” and “legislating from the bench” and sometimes, critics use it to talk about the Court having too great a role in our lives. Where does the idea of “judicial supremacy” come from?

Marbury v. Madison is one place. But we must also go back to Dred Scott.

Dred Scott v. Sanford (1857)

The Dred Scott case can be recalled as the case from our discussion of “Slavery and the Constitution” and federalism. Not only did it deny citizenship to Black Americans, but it ruled that the federal government had no power to limit slavery in the territories or elsewhere.

Because this was both textually and historically unmoored, critics, including the two dissenters (Justice Benjamin Curtis and Justice McLean), pointed out that it was an exercise in raw judicial power.

Much of Chief Justice Taney’s opinion was considered dicta (that is, a part of the decision of a Court that had no precedential or binding power because the case was already decided)—because Taney declared black Americans could not be citizens under the Constitution, he decided that the Scotts never could have properly filed their case under diversity jurisdiction—there was no jurisdiction for the case. Thus, Taney’s discussion and decision regarding the Missouri Compromise and the federal government’s lack of power to ban slavery in the territories was dicta because the case was already dismissed and the Court did not need to reach the merits of the federal government’s power.

Abraham Lincoln responded in the Lincoln Douglas debates in 1858 by noting that he opposed the Dred Scott decision, but he did not propose that violent mobs should settle the rights of slaves to file freedom suits. He proposed that the decision should not be binding on the voter when they vote for members of Congress or the president.

In his first inaugural address on March 4, 1861, Lincoln stated that he did not forget that “constitutional questions are to be decided by the Supreme Court” nor did he deny that “such decisions must be binding in any case, upon the parties to a suit, as to the objects of the suit” and were “entitled to very high respect and consideration” by all departments of the government.

At the same time, Lincoln argued that the “candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in person actions, the people will have ceased to be their own rulers, having, to that extent, practically resign their government into the hands of that eminent tribunal....”

In other words, Lincoln thought that judicial supremacy, as practiced in Dred Scott, was in obvious tension with the very concept of popular sovereignty that was the basis for the Constitution.

Ex Parte Merryman (1861)

What about Lincoln’s actions during the Civil War? Chief Justice Taney, riding on circuit, ordered free a citizen of Maryland arrested under Lincoln’s order to suspend habeas corpus in April 1861 upon the beginning of hostilities. Taney

Scholar Exchange: Article III – The Supreme Court Briefing Document

thought that only Congress, under Article I, Section 9, could suspend the writ, and that this otherwise deprived the citizen of his civil liberties under the Bill of Rights—due process, the right to a speedy trial.

Lincoln did not obey Taney’s order, but instead asked Congress in a special session just over a month later to give backing to his suspension of habeas corpus by legislation and announced his disagreement with Taney’s constitutional judgment.

In Lincoln’s July Fourth address, he argued that the Constitution was silent as to who could suspend and that given the present war and rebellion of the Confederacy, the framers did not intend that the “danger should run its course, until Congress can be called together.” The public safety required the suspension of the writ and the president had an obligation to faithfully execute the laws.

In an opinion the next day, Lincoln’s attorney general, Edward Bates, wrote that Lincoln’s suspension was a proper claim of an “emergency power” and that the judiciary and president were co-ordinate, equal branches and that the judiciary’s “great function is judgment” and thus is a passive branch, while the executive is “active” and requires initiative. As co-equal branches, if the president was bound by principles laid by the judiciary, the judiciary was bound by the principles laid down by the president—this could not be, Bates concluded and the courts had no power to command the president to “submit implicitly to its his judgment” and to “in case of disobedience, treat him as a criminal.”

Cooper v. Aaron (1958)

In the wake of Brown v. Board of Education, in which the Supreme Court held racial segregation in public schools violated the Equal Protection Clause of the 14th Amendment, many Southern officials resisted the Court’s decision. Prominently, Arkansas’ Governor Orville Faubus refused to comply with a federal court’s desegregation decree and called out the state National Guard to block integration.

Supreme Court responded with another unanimous decision reaffirming Brown and appealing to the Marbury precedent to claim that decisions of the Court had the status of “supreme law of the land” under the Supremacy Clause.

State officials claimed they were not bound by the Court’s holding in Brown, but the Court stated that in Marbury, Marshall saw the Constitution as “the fundamental and paramount law of the nation” and that the province and duty of the judiciary was to “say what the law is.” Thus, when the Court speaks, and every state official is committed oath to “support this Constitution,” they must follow the Court’s decision.

Here, the Court pointed to Chief Justice Taney in the 1859 case of Ableman v. Booth, which saw a unanimous court overturn the decision of the Wisconsin Supreme Court to strike down the Fugitive Slave Act and overturn a federal court sentencing of Sherman Booth, who was accused of interfering with the recapturing of a fugitive slave. In Ableman, Taney stated that the Supremacy Clause showed the framers were anxious to preserve the Constitution in “full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State.”

Like with Brown, members of the Court worked to ensure that the opinion was unanimous so that it would have persuasive force in the public sphere—Justice Frankfurter intended to write a concurring opinion, but was convinced to scrap it.

The opinion ends with a statement of the significance of judicial review in a constitutional republic: “That the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling, but to help form its understanding, is especially true when they are confronted with a problem like a racially discriminating public school system. . . Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the

Scholar Exchange: Article III – The Supreme Court Briefing Document

Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years.”

WRAPPING UP: THE SIGNIFICANCE OF JUDICIAL INDEPENDENCE

Our federal judges are protected from the influence of the other branches, as well as shifting popular opinion. This insulation is referred to as judicial independence, and it allows them to make decisions based on what is right under the law, without facing political (not getting reelected) or personal (getting fired, having their salary lowered) consequences for the decisions they make.

In Federalist No. 78, Alexander Hamilton called the judiciary “the least dangerous” and weakest branch, because it held neither the purse strings of the Legislature nor the force of the Executive; the judiciary wielded “merely judgment,” he wrote. So, it had to be protected from outside influence by providing safeguards to its independence.

Importantly, Hamilton also said in Federalist No. 78—presaging Chief Justice John Marshall in Marbury v. Madison—that it was the duty of the courts “to declare all acts contrary to the manifest tenor of the Constitution void.” The judiciary would protect the guarantees set out in the Constitution by having the power to say “no” to the Legislature and “no” to the Executive when they overstepped the limits of their constitutional powers.

And as Chief Justice William Rehnquist later observed: “The Constitution tries to insulate judges from the public pressures that may affect elected officials. The Constitution protects judicial independence not to benefit judges, but to promote the rule of law.”

Discussion Question

After this journey through the history of Article III and the judicial branch, you’ve successfully examined and considered the statements of major historical figures in the debate over judicial powers. Now, you use these tools to freely consider the following question: what is the benefit of having judicial independence?

*Research provided by Nicholas Mosvick, senior fellow for constitutional content, and Thomas Donnelly, senior fellow for constitutional studies, at the National Constitution Center.