Judicial Supremacy Flashcards
How is judicial interpretation different from exec/leg?
only judges have an office (duty) to exercise judgment in accord w/ land of land.
Judicial understanding of the law should be more ___ than exec/leg
moral/legal authoritative
Locke says when people cannot find an indifferent judge on earth, they will ____
make an appeal to heaven (i.e., revolution)
According to Locke, For society to work, there must be ___ system of unbiased adjudicators.
public confidence in
According to Locke, judges should simply follow __
the law wherever it leads
What is old common law view of precedent?
evidentiary, when law not clear turn to line of precedent as authoritative
What was 20th century view of precedent?
binding, like a court order
Problem with 20th century view of precedent
errors compound over time
What is first value of precedent?
establish credability, certainty and predicatability
What is second value of precedent?
hierarchy of courts, trust in judicial system/reputation of the Court
Everyone has to interpret the law, but only judges ___, so their interpretation is more authoritative than that of others
have office of judgment
What is problem of precedent value in trust in system/reputation?
Perquimans County, risks deferring to majority opinion over minority rights
According to Frankfurter in Youngstown, precedent may come from ___
practice, historical gloss on Executive power
Why not want precedent binding?
we substantively disagree with the law
Why want binding precedent?
Hierarchy of courts won’t work unless there’s close deference to higher courts
Four options if lower court and higher court precedent clearly wrong
1) follow anyways 2) construe narrowly and distinguish case 3) follow it but note wrong 4) refuse to apply it unless overturned (force higher court to reevaluate)
What approach to wrong precedent does Hamburger endorse?
duty to follow it but also duty to criticize
Duty of a court to follow its own precedent is ___ and they maybe __
much weaker, have a duty to correct itself
Dred Scott holding
Congress was constitutionally forbidden from banning slavery in federal territories
Lincoln argued that we should not try to ___ Dred Scott but instead ___
resist the ruling, seek to have it overturned
Lincoln also argued Dred Scott paved the way for ___
decision banning states from banning slavery in their borders
What ideology does Lincoln argument in debate subscribe to?
Departmentalism
Departmentalism means each of the three departments of government can___
independently interpret and enforce Constitution as it applies to its own distinct functions
Douglas said irregardless of merits, that Dred Scott is from ___ so it is ___
highest judicial tribunal on Earth established by Constitution, law of the land binding on every citizen
Douglas subscribes to ideology of __
judicial supremacy
Douglas argues that Lincoln is undermining ___ so that people will __
undermine public confidence in the court, not respect its decisions (mob)
Judicial supremacy: “The position that all other government officials (or perhaps all citizens) must __________.”
treat judicial opinions about the Constitution as if they were the Constitution itself.”
Cooper v. Aaron Facts
Arkansas claim not to be bound by Brown, seeking postponement of integration
Cooper Holding
(extreme) judicial supremacy - the Court’s constitutional rulings have the binding force of the Constitution, and the governor & legislature are bound by it
Cooper is the Sole example in Supreme Court opinions in which Court says
its interpretations are supreme
There is ___ to accept Cooper as correct
great hesitancy
Problem 1 with Cooper
does that mean they could not overturn their own precedent later?
Problem 2 with Cooper
supreme interpretation ≠ supreme law of land
What does Hamburger think Cooper court should have said?
we’re final interpreters and our interpretation prevails
Which side of Lincoln-Douglas is Cooper?
Douglas
Hamburger: Distinction between law and interpretation of the law – law is more than ____, there are ___
dicta of the court, principles that are independent of what any judge says
Hamburger says that the Cooper court declares itself a __
constitution-maker
Cooper reasoning 1
Article VI- Constitution supreme law of the land
Cooper reasoning 2
Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution,
Cooper reasoning 3
It follows that the interpretation in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States
