first con quiz

Historical argument - three types:

(a) Original intent of the drafters (b) Original meaning of the text (c) Vectors of history

1. Cultural arguments

1. Cultural arguments a. Ethical arguments derive rules from those moral commitments of the American ethos that are reflected in the Constitution. b. Societal norms c. Ex. Are we a Christian nation?

Doctrinal arguments

1. Doctrinal arguments a. proceed from the application of precedents.

1. Prudential arguments

1. Prudential arguments a. Prudential arguments seek to balance the costs and benefits of a particular rule. b. Slippery slope- if we decide this case this way, here is everything that will flow from that

Who is bound by decisions of the US Supreme Court?

Cooper and martin case

Does Marbury have a right to his commission? Is Marbury entitled to a remedy? If so, is the proper remedy a writ of mandamus from the Supreme Court?

Does Marbury have a right to his commission? Yes Is Marbury entitled to a remedy? Yes If so, is the proper remedy a writ of mandamus from the Supreme Court? No

INTERMEDIATE SCRUTINY

Government action is presumed invalid. Government action will be upheld only if government can prove that its action is substantially related to the accomplishment of an important government interest.

STRICT SCRUTINY

Government action is presumed invalid. Government action will only be upheld if government can prove that its action is necessary to achieve a compelling government objective.

Strict Scrutiny

Strict Scrutiny = The court starts with the presumption that the gov't action is invalid. The gov't must demonstrate that the statute is necessary to accomplish a compelling government objective.

Three Tiers of Judicial Review:

Three Tiers of Judicial Review: Minimal Scrutiny Intermediate Scrutiny Strict Scrutiny

Marbury v. Madison

- established the primary role of the US Supreme Court as the branch of the federal government that decides whether a law or action is constitutional. "It is emphatically the province and duty of the judicial department to say what the law is."

Structural arguments

1. Structural arguments a. Using a structural argument, one seeks to infer structural rules from the relationships that the Constitution mandates.

Textual method

1. Textual method a. The textual argument, closely associated in many ways to the doctrine of original intent, concerns whether the judiciary or another is bound by the text of the Constitution and the intentions revealed by that language or whether it may go beyond the four corners of the constitutional document to ascertain the meaning, a dispute encumbered by the awkward constructions, interpretivism and noninterpretivism.

Common notions of the judiciary and the "written" quality of the Constitution are both BLANK arguments. They are not based on specific text in the Constitution, but are based ideas or qualities.

Common notions of the judiciary and the "written" quality of the Constitution are both structural arguments. They are not based on specific text in the Constitution, but are based ideas or qualities.

Intermediate Scrutiny

Intermediate Scrutiny = The court starts with the presumption that the gov't action is invalid. The gov't must demonstrate that the actual purpose of the statute is important and that the statute is substantially related to accomplishing that important objective.

The following are some pros and cons of allowing Supreme Court justices, who are appointed for life, perform judicial review in such a way that they are the final arbiters of the meaning of the constitution. Which of these arguments do you find most persuasive in favor of or against retaining life appointments and why?

Justices are more politically insulated The Court plays a counter-majoritarian role The Court has structural limits such as jurisdictional limits Life appointments provide stability Life appointments allow errors to become entrenched The primary role of the Court results in erosion of constitutional responsibility by other branches

Minimal Scrutiny

Minimal Scrutiny = The court starts with the presumption that the gov't action is valid. Challenger must demonstrate that law is not rationally related to legitimate objective.

MINIMAL SCRUTINY

Most government action will be subject.. Government action is presumed valid Government action will be struck down only if challenger can show that the action is not rationally related to a legitimate government purpose.

Reasons why Court has this role:

Reasons why Court has this role: a. Structural Implications from a written constitution, i.e., relationships between branches b. Article III's grant of judicial power over all cases arising under the Constitution c. Constitutional provisions specifically directed to the courts d. The Supremacy Clause (Article VI) e. Judge's oath f. Precedent g. Framer's Intentions

State courts (Martin v. Hunter's Lessee)

State courts (Martin v. Hunter's Lessee) In a land dispute involving a conflict between Virginia law and federal law, the VA Supreme Court held that it had the final say regarding which law prevails because it is the highest court of the sovereign state of VA. The US Supreme Court disagreed, holding that Article III of the Constitution vests jurisdiction over "all" cases arising under the US Constitution or federal law in the federal courts. If some cases were ultimately decided by state courts and there was no appeal to the US Supreme Court, then the US Supreme Court would only have jurisdiction over some cases, not all cases, contrary to the language of the Constitution. In creating the US, the states were stripped of some attributes of sovereignty, which were given to the United States. The states are bound by the Constitution under the Supremacy clause. As a practical matter, the US Supreme Court must have appellate jurisdiction over all cases involving federal law to ensure the uniformity and finality of decisions.

State officials (Cooper v. Aaron)

State officials (Cooper v. Aaron) State officials in Little Rock, AK argued that because they were not parties to the Brown v. Bd. of Ed. case, they were not bound by its desegregation holding. The Supreme Court held that state officials are bound by its decision because Article VI establishes that the Constitution is the Supreme law of the land. Marbury establishes that the federal judiciary is supreme in the exposition of the law of the constitution. The Court's interpretation of the 14th Amendment is binding on the states pursuant to the Supremacy Clause. If the states could ignore the Supreme Court's decisions, and destroy rights acquired by those decisions, the constitution would no longer be supreme.

The Supremacy Clause, Article VI, and oaths, Article VI, section 3 ("all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution") are both BLANK arguments. They are based on specific text in the Constitution. Generally, if there is a specific citation to a portion of the Constitution, the argument is a BLANK one.

The Supremacy Clause, Article VI, and oaths, Article VI, section 3 ("all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution") are both textual arguments. They are based on specific text in the Constitution. Generally, if there is a specific citation to a portion of the Constitution, the argument is a textual one.

Adequate and Independent State Grounds Doctrine

The Supreme Court may review state court decisions, but only to the extent that the decision is based on federal law. If the state law basis for the decision is both adequate AND independent of federal law, no Supreme Court review.

Adequate and Independent State Grounds Doctrine

The Supreme Court will not review state court judgments that rest on adequate and independent state grounds. The Supreme Court's jurisdiction only extends to fix incorrectly adjudged federal rights. Herb v. Pitcairn The state grounds must be both adequate for decision and independent of federal law.

The US Constitution sets a floor, but not a ceiling for individual rights. Therefore, state law and constitutions may provide

The US Constitution sets a floor, but not a ceiling for individual rights. Therefore, state law and constitutions may provide more rights, but not less, than the US Constitution.

Reconsider the excerpt with this additional material from the passage: Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Is this from the Court's majority or a dissenting opinion in Boumediene?

The language that it would be a "striking anomaly" if "Congress and the President, not this Court" could say "what the law is" should it clear that this is from the Court's majority opinion in Boumediene v. Bush.

To what extent are states and state officials bound by US Supreme Court decisions?

The parties to a case are always bound by the court's decision. State officials, even if not parties to a case, are bound by a Supreme Court decision. Cooper v Aaron State courts are bound by US Supreme Court decisions. Martin v. Hunter's Lessee

Consider the case of Cooper v. Aaron, 358 U.S. 1 (1958). Also known as "the Little Rock Case," the dispute involved the refusal of state officials to comply with federal court orders regarding desegregation. As the Court phrased it, the case involved "actions by the Governor and Legislature of Arkansas upon the premise that they are not bound" by the Court's holding in Brown v. Board of Education, 347 U.S. 483 (1954), which declared racially segregated schools unconstitutional. Given that the U. S. Supreme Court in Cooper v. Aaron held the state officials were bound by the United States Supreme Court's interpretation of the Fourteenth Amendment in Brown v. Board of Education, how likely do you think it is that the Court cited Marbury v. Madison?

Very likely, because the Court in Marbury v. Madison stated that it is "emphatically the province and duty of the judicial department to say what the law is." Marshall's statement in Marbury v. Madison that it is "emphatically the province and duty of the judicial department to say what the law is," is perhaps the most oft-cited passage in the opinion.

Judicial Review - Learning Objectives:

You should understand: (1) The arguments for and against the Supreme Court having the final say over constitutional interpretation, particularly as stated by Justice Marshall's arguments in Marbury v. Madison (2) Who is bound by U.S. Supreme Court decisions (Cooper v. Aaron); and (3) The extent of the Supreme Court's appellate jurisdiction over state courts and state laws (Martin v. Hunter's Lessee), including when the Supreme Court's will or will not hear cases decided by state courts.