Federal Judiciary

Power of judicial review

The power of the judiciary was created in Article III of the

Constitution and in Marbury v. Madison (1803).

Article III:

·  Judicial power: interprets the law

·  Congress: Makes the lawcar

·  President: enforces the law

Article III §1: 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 behavior and shall at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.

·  The judicial power shall be vested in such inferior courts as the congress may from time to time ordain and establish. Creates justifiability doctrines that the court uses to ensure that it hears actual cases.

Article III §2(2): 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. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such expectations, and under such regulations as the congress shall make.

Power of judicial review is limited by Article III §2(1): Judicial power shall extend to all cases and controversies.

Marbury v. Madison (1803):

  1. Court could not rule on non-constitutional basis because it believed Marbury had right to commission. The court had to rule whether it could conduct judicial review. It could. Court declares that the Constitution denies it original jurisdiction to grant mandamus.
  2. Marbury implications: Courts still hold that because the Constitution divides the Court’s power into original and appellate, Congress cannot add to the Court’s jurisdiction.
  3. This is why the standing requirements inferred from “cases”/ “controversies” in Article III is so closely enforced.

Ariticle VI §2: The constitution and the Laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the Land.

·  When the constitution and a statute clash, the constitution trumps the statute.

Ways of Interpreting the Constitution

Living Constitution (non-originalism/non-interpretivism)

  1. Judges may protect values that are neither explicitly stated in the text of the Constitution nor intended by Framers based on:
  2. Present understandings of Constitutional Terms (textual)
  3. Contemporary Needs (prudential)
  4. Interpret the constitution in light of the costs and benefits
  5. Specific (We don’t use prudential)
  6. If not specific, living constitution people are more open to interpret in a prudential way.

Pro-Living Constitution

  1. They believe some values trump majority rule and they want the Constitution to grow so that it doesn’t become useless.
  2. I.E. Equal protection, only intended for blacks, but common sense says it should apply to women, etc.
  3. Beware tyranny of the majority: Majorities find new ways to enslave, disenfranchise, and plunder minorities;
  4. Shouldn’t the spirit of the Constitution also adapt?
  5. Framers may have intended a living constitution.
  6. Do we really want change to only be possible through the near-impossible method of Constitutional Amendment?
  7. I.E. Brown v. Board could not be legislated in 1954; Civil Rights Act would have been delayed (or prevented).

Anti-Living Constitution

  1. Little constraint on courts. It is too easy for judges to argue that today’s view would protect a Constitutional value from tyranny of the majority.

Originalism (Interpretivism)

  1. The theory that judges should only protect “original” Constitutional values that are either:
  2. Clearly state in the text of the Constitution
  3. As they were understood at the time
  4. Clearly implicit from the Framers’ intent
  5. Historical: What they did, how they did it

Pro-Originalism

  1. More specifically curtails judicial review
  2. More narrow/ more strict/ makes it harder to exercise judicial review
  3. Worry that when judges make decisions they’re unelected, it’s counter intuitive because that job belongs to the elected legislative and executive branches.
  4. Counter-majoritarian difficulty
  5. Democracy is the legitimation principle of the Constitution, but judges aren’t elected.
  6. A living Constitution approach will more often replace majority will with judge’s interpretation of the Constitution.

Anti-Originalism

  1. Representative Democracy with a Constitution is not the same as “The majority always wins.” We uphold certain values, which are enshrined in the Constitution and trump majority rule.
  2. Originalism has its own counter-majoritarian difficulty: Pure majority rule would also trump Originalism, so why do judges get to choose when history overrules?
  3. Sometimes it is impossible to apply originalism:
  4. Constitutional language is often ambiguous, so what’s intent?
  5. Who counts as the Framers?
  6. Judges are not historians, so why do they play the role of one?
  7. Courts interpretations are not always accurate.

Why must the Constitution be interpreted?

  1. The constitution does not address certain matters.
  2. Most Constitutional provisions are written in broad language.
  3. Rights must be balanced against other interests.

Modes of Interpretation

·  Textual: Looking at the meanings of the words of the Constitution alone, as they would be interpreted by the average contemporary man on the street.

o  Discern what the words actually mean.

·  Historical: Relying on intentions of Constitutional Framers and/or ratifies.

o  Discern what Framers/Ratifies intended a Constitutional provision to mean at the time it was created, what was going on at that time in history, and what happened just after its creation.

·  Doctrinal: Applying rules based on prior cases interpreting the Constitution. (A system of common law precedent).

o  Aim to apply “neutral principles” in a way that gives stability, reliability, and coherence to the law in an area.

·  Structural: Infer Constitutional rules from relationships created by structure of Constitution. Look at what the individual branches are able to do.

o  Use placements of powers as well as checks on those powers to imply a particular Constitutional approach or rule.

·  Prudential: Balance costs and benefits of potential Constitutional rule.

o  Show one approach makes most sense as Constitutional policy.

·  Ethical: Derive rules from broad moral commitments of U.S. that are reflected in Constitution.

o  Explain how tradition suggests an ethos of doing or not doing certain things.

o  Traditions of the people/ understanding of the Constitution/ Public perception.

DC v. Heller (2008): (Interpreting the second amendment)

·  Facts:

o  The District of Columbia passed a law with the following provisions:

§  Assault weapons banned

§  No registration of handguns

§  May carray handguns only upon license

§  When at home, handguns must be disassembled and trigger locked.

o  Heller seeks to require registration and allow carrying firearm in home without license and without trigger-lock.

·  Madison’s version of the Second Amendment

o  “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.”

·  States version; ratified second amendment:

o  “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. “

·  Issues:

o  Does the 2nd amendment grant an individual right to have weapons in the home for self-defense?

o  Does it protect use of guns only for militia-related purposes?

o  Does it allow reasonable regulations upon its individual right of self-defense?

·  Parties arguments:

o  Petitioner’s arguments: 2nd Amendment protects only having weapons in connection with militia.

o  Respondent’s arguments: 2nd Amendment protects use of handgun for traditionally lawful purposes, including self-defense in the home.

·  Scalia’s Rule:

o  Presuming applicant is not disqualified from exercising the right, the 2nd amendment prohibits an absolute ban on operable handguns for self-defense in the home.

Why limit judicial review

  1. It threatens to overcome the separation of powers
  2. Congress has explicit judicial review- limiting powers
  3. Focusing on horizontal separation of powers
  4. Each has their own section so one branch does not have their own power and does not make decisions on their own.
  5. Two types of separation:

1.  Horizontal separation: Separation of powers

2.  Vertical separation: Dual sovereignty- federalism and states rights.

  1. It is counter-majoritarian
  2. Better decisions are made when cases are properly framed

Advisory Opinions: There is not an actual dispute between adverse litigants. There is not a substantial likelihood that a decision in favor of a claimant will have some effect.

1.  Lack of actual dispute:

o  Must be an actual injury, the dispute cannot be moot.

2.  Court decision can’t be unlikely to have an effect:

o  Decision must alleviate injury, change defendant’s behavior or change right or duties.

Justiciability

Justiciability: Constitutional Requirements for jurisdiction: (When a court is allowed to hear a case)

A body of judicially created doctrines that define and limit the circumstances under which an Article III federal court may exercise its constitutional authority, including its authority to engage in judicial review. (When can a court hear a case)

·  Derived from the interpretation of Article III’s

o  Case or controversy requirement; and

o  Prudential policy considerations involving perceptions of the proper role of the federal judiciary within the constitutional structure of government. (Is not constitutionally required)

·  It defines the limits of Article III judicial power by focusing on expectations of the types of matters judges commonly decide. Those expectations are developed and applied through four doctrines:

o  The doctrines of:

§  Standing

§  Ripeness (Won’t be covering)

·  Fitness for adjudication

·  Hardship on plaintiff of not determining

§  Mootness (Won’t be covering)

·  Definition: Whether the controversy has stayed live (Article III prohibition on advisory opinions)

o  Is there no longer controversy between parties?

o  Is decision likely to have no effect?

·  Exceptions:

o  Injury capable of repetition yet evading review

o  Class Action Suits

o  Voluntary cessation, but free to return to it

§  Political question (Won’t be covering)

Actual Case or controversy requirement

·  Article III §2 provides that the judicial power shall extend to certain enumerated categories of “cases or controversies.” This limits Article III courts to only exercise jurisdiction over matters:

o  Where there is an actual dispute involving the legal relations of adverse parties; and

§  Injury (someone was injured) and

§  Causation (someone caused the injury)

o  For which the judiciary can provide some type of effective relief.

·  Advisory opinions: Courts may not issue such opinions consistent with the case or controversy requirements.

o  Article III courts may not issue advisory opinions:

§  An opinion issued outside the context of a justiciable case or controversy meaning that there is a lack of an actual dispute.

Constitutional requirement: Article III, Section 2 (1): The judicial power shall extend to all cases and controversies.

  1. Created justiciability doctrines that the court uses to ensure that it hears live disputes between litigants with real interests at stake.

Why have the Standing requirement?

1.  Assure that the case is a true case or controversy

2.  Limit role of courts

3.  Assure best litigant

4.  Properly develop facts

5.  Fear of overloading the courts

6.  Fear of intermeddlers

The Constitutional Standing Doctrine: Determining whether a specific person is the proper party to bring a matter to the court for adjudication based on Article III.

  1. The requirements:
  2. Actual injury: Concrete, particularized, and imminent
  3. Must be plaintiff’s own present or imminent injury
  4. Guarantees personal stake
  5. Must be an actual case or controversy that can be redressed
  6. The imminent injury can’t be too speculative, must be “certainly impending”

b.  Causation

  1. The defendant must have personally caused the plaintiff’s imminent injury

c.  Redressability

  1. The relief requested must be designed to alleviate the injury caused by the defendant’s conduct.
  2. No Generalized Grievance (Defeats tangibility of injury)

i.  The rule precludes Article III courts from entertaining lawsuits in which the only injury claimed by the plaintiff’s is the shared harm experienced by all citizens and taxpayers when the federal government or a state fails to comply with the Constitution or law of the United States.

  1. Unless the plaintiff can show that the challenged government action caused him or her to suffer a particularized injury.

Prudential Standing Requirements: Legislatively created, not under Article III (That won’t be fully covered)

o  Assertion of own interests

o  Injury with “Zone of interests” of law invoked

o  Ripeness and Mootness

o  No Generalized Grievances unless,

o  Government expenditure in violation of the establishment clause

o  Not third party bringing suit, unless

o  Special relationship between the parties

o  Obstacle to injured party

Clapper v. Amnesty International

·  Facts: Bush II administration conducted warrantless surveillance of communications outside U.S. where one party “reasonably believed” to be terrorist. The F.I.S.C. required approval of warrantless surveillance upon “probable cause.” Congress amended F.I.S.A section 1881(a) to allow surveillance of non-U.S. persons reasonably believed to be outside the U.S.

·  Rules:

o  Future injury must be “certainly impending” and fairly traceable to defendant.

o  Costs incurred on speculation of injury do not create standing unless the injury is certainly impending.

o  Assumption no one else could sue does not give a particular plaintiff standing.

Hollingsworth v. Perry (2013)

·  Facts: California Supreme Court requires gay marriage. California voters amend state constitution to outlaw gay marriage. Respondents sue in federal district court seeking overturning amendment under federal equal protection clause. Petitioners intervene to defend amendment. District Court rules for respondents. 9th circuit certifies question to California Supreme Court on petitioner’s right to argue for California’s interest. California Supreme Court says yes and 9th circuit upholds district court. Petitioners appeal to Supreme Court of the United States.

·  Issue: Does proponent of state initiative without enforcement power state only a generalized grievance, thus lacking standing?