Chegg Flashcards
Alternative routes by which Marshall might have avoided reaching the opinion’s influential opinion:
Recusal
Common Law
Political Question
Statutory Construction
Constitutional Interpretation
Why is it argue that Marshall should have recused himself in Marbury v Madison?
Marshall was intimately acquainted with the facts of the Marbury controversy
As Secretary of State, he had signed and sealed Marbury’s undelivered commission
An affidavit by his own brother James was introduced to prove the existence of some of the commissions
In view of his involvement in the controversy, Marshall might have disqualified himself from participation in the decision
Chief Justice Marshall in Marbury v. Madison - Common Law
Marshall determined that the commission vested when it was signed and sealed
He could have decided, however, that a commission does not vest as a matter of law until its delivery
In that case, Marbury would not have been entitled to the benefit of the commission despite the previous administration’s signature and seal
Chief Justice Marshall in Marbury v. Madison - Political Question
Marshall determined that Marbury’s right to his commission was a legal, not a political question, and thus a writ of mandamus would ordinarily be appropriate
He instead might have ruled the question whether Marbury’s Commission must be delivered a political question committed to the unreviewable discretion of the executive branch
He might also have ruled, as a matter of prudence, cabinet officers should not be made subject to writs of mandamus
Chief Justice Marshall in Marbury v. Madison - Statutory Construction
Marshall construed section 13 of the Judiciary Act of 1789 as expanding the original jurisdiction of the Supreme Court by authorizing it to issue writs of mandamus to executive officers
Instead, he might have that the Act conferred mandamus power only suitable to appellate jurisdiction, and dismissed for lack of jurisdiction because this was not an appeal
Alternatively, he might have found that the Act conferred mandamus power suitable to one of the constitutional authorized categories of original jurisdiction, and again dismissed for lack of jurisdiction since this case did not fall into one of those categories
Chief Justice Marshall in Marbury v. Madison - Constitutional Interpretation
Marshall interpreted Art. III, Sec. II, Cl. II, as setting forth an exhaustive list of the categories of possible Supreme Court original jurisdiction
Instead, he might have interpreted the list as illustrative, but not exhaustive, as setting a floor, not a ceiling
In this case, the statute would not have been unconstitutional even if it were interpreted as an expansion of the Court’s original jurisdiction because Art. III would not have precluded such an expansion.
Had Chief Justice Marshall interpreted the statute differently, which would have been valid?
He wouldn’t have had the satisfaction of declaring it unconstitutional, and therefore void.
Marbury would not have had his commission delivered
He could have found that the statute did not grant the Court subject matter jurisdiction over the case
Had Chief Justice Marshall interpreted the constitutional provision differently, how would the results be different?
Court would order Marbury’s commission be delivered
Would have read the Constitution as setting a floor for original jurisdiction that Congress could add to
Court would still have reached the merits of the case
Statute would have been constitutional
There would be jurisdiction
No establishment of judicial review
Court would order the delivery of the commission
How did Chief Justice Marshall “have his cake and eat it too” in Marbury v. Madison?
Marshall’s political affiliation with the Federalists played a heavy part in his decision - he was the Secretary of State under John Adams, and is replaced by James Madison, who became Secretary of State under President Jefferson
He decided to answer the question on the merits first so that he could say that Jefferson was acting unlawfully - had he decided the jurisdiction/constitutional issue first he would never have been able to say Jefferson was acting unlawfully
He wanted to decided the question on the merits first so as to castigate Jefferson and Madison
He did not tell Jefferson or Madison that they actually had to issue the writ of mandamus -THIS ALLOWED HIM TO AVOID IMPEACHMENT
HE ALSO avoided Jefferson ignoring his order, because he didn’t issue a mandamus to Jefferson for Jefferson to do anything at all - didn’t give Jefferson the satisfaction of ignoring his order
Counter Arguments to the Idea that Marshall “cynically manipulated his opinion”
He had every right not to recuse himself from the proceedings - set the tone for lax recusal standards
Not a political question because there was no Textually Demonstrable Constitutional Commitment of the Issue to a Coordinate Political Department and none of the other instances in which a PQ declaration is appropriate
It is the Supreme Court’s right and duty to say what the law is - they interpret the Constitution which is the Supreme Law of the Land - Supremacy Clause
The power of judicial review is implied from the text of the Constitution -
The 10th Amendment does not say the powers not “expressly delegated” to the United States by the Constitution
What arguments support the claim that judicial review is antidemocratic?
Judges are not elected and should not displace the will of elected representatives
Members of Congress take the same oath to the Constitution as do the judges. Why should we assume that they are less loyal to the words of that document than the judges?
Federal judges have the authority to compare a state or federal law or executive act to what was written down 200 years ago, and to invalidate that state or federal law or act (even though it was made and/or carried out by duly elected representatives of the electorate) if they think its inconsistent with the intent of the long-dead Framers of that 200-year old instrument
There are external limitations that act as a check on judicial review
What arguments rebut the claim that Judicial Review is antidemocratic?
Federal judges are subject to impeachment by the House and conviction by the Senate
Federal judges are appointed by the President, subject to the consent of the Senate, and both the President and the Senate are elected by the people
What have commentators said about Justice Roberts cynically manipulating his opinion in NFIB v. Sebelius so as to “have his cake and eat it too”, to enjoy the benefits of the decision while avoiding much potential reaction too
Some commentators have suggested that the holding was motivated by a desire to protect the Court’s institutional legitimacy and avoid a 5-4 holding along ideological lines striking down a signature legislative enactment of President Obama’s first term and one of the most important pieces of social legislation since President Lyndon Johnson’s Great Society Enactments
Pointed to reports that the Chief Justice had initially indicated an inclination to strike down the individual mandate
Put too much focus on preserving the Supreme Court’s reputation
“Didn’t want to be the guy who deprives millions of people of healthcare”
Other commentators dispute this, arguing that Chief Justice’s opinion fit within the Court’s taxing power jurisprudence and the decision could be seen “as one of law, not just of politics”
Rational Basis Test - Necessary and Proper Clause
A federal statute must be “rationally related to the implementation of a constitutionally enumerated power” to be declared within Congress’s power under the Necessary and Proper Clause
South Dakota v. Dole (w/4 part spending power test)
Directed secretary of transportation to withhold 5% of the federal highway funds otherwise payable to states if they allow people over 21 to drink
4 Part Test
Must be for the general welfare
Must have a clear statement of the condition - unambiguous
Rational basis to serve a legitimate governmental purpose - according to Congress (Ex: Dole will cut down on drinking and driving)
No violation of a specific constitutional prohibition
