Separation of Powers - Judiciary

Question 1

Brutus No. 11 & Federalist No. 78

Answer 1

Brutus was an “Anti-Federalist” paper that warned that Article III gave the judiciary enough power to turn it into an oligarchy; 78 was Hamilton’s counter-argument to Brutus–judicial branch is the weakest.

BRUTUS REASONS

• Judges are human and will interpret Constitution to increase their own power–this will largely hurt the states.
• Judges don’t have strict, workable rules–the vagueness of the Constitution will allow for it to interpret as it sees fit.
• No effective checks (hard to get an impeachment, no voting accountability, can’t be removed for run-of-the-mill bad performance).

FEDERALIST REASONS

• Only has power to wield judgments, rather than the purse or the sword.
• Depends on other branches to uphold its judgments.

AFTERWARD
Brutus would have been very freaked out by Marbury v. Madison, which solidified judicial superiority, in some respects.

SGC: Brutus was spot-on; Hamilton way underestimated everything.

Question 2

Marbury v. Madison (1803)

Answer 2

Judiciary can review the acts of other branches. Marshall masterfully drafted this to maximize court power–Jefferson didn’t have an order he could disobey, but the concept of judicial review was also set in stone.

BACKGROUND

• In the aftermath of the election of 1800, Adams attempted to pack the courts before he left office.
• Marbury, who served both as the Secretary of State who issued the appointments of the justices and as the majority-writing justice, had a lot riding on this, both in the legitimacy of the court and the legitimacy of the Act he helped execute.

FACTS
*Marbury was appointed justice of the peace by Adams; Jefferson refused to grant his appointment, so Marbury sought a writ of mandamus from SCOTUS that would compel his appointment.

MARSHALL’S MAJORITY

• Marbury has a right to his appointment because he was lawfully appointed by the president and confirmed by the senate.
• Marbury has recourse under the law, since he was deprived of his ability to fulfill a duty assigned to him by law.
• SCOTUS doesn’t have the jurisdiction to issue a writ of mandamus, since Article III, sct. 2 gives SCOTUS original jurisdiction only over an enumerated list of cases. If legislature could add to this list at will, as they tried to in Judiciary Act of 1789, the enumerated list would have been nothing but surplusage.

MARSHALL ON THE POWER OF JUDICIAL REVIEW

• Given the Constitution’s origins in the people, the judiciary gets its judicial power from the people, not Congress.
• Constitution is written to limit legislature–no point of a Constitution if legislature can do as it pleases.
• Given Constitution’s supremacy in Article VI, legislative acts that conflict with the Constitution cannot be law.
• Judges take an oath to uphold the Constitution, including Article VI–judicial review must be part of that.
• Only the judiciary may interpret the law.

SGC: Marshall should have recused himself, given that he was involved on the political side, too, but he was correct about judicial review. BUT his holding was wrong!!! Article III, sct. 2 gives Congress the power to grant SCOTUS original jurisdiction over new types of cases.

Question 3

Stuart v. Laird (1803)

Answer 3

Congress may constitutionally create and abolish lower federal courts, despite judges’ assured life tenure.

FACTS
Jeffersonian Congress repealed the Judiciary Act of 1801, abolishing 16 court of appeals judgeships, and then passed the Judiciary Act of 1802, which returned the system of SCOTUS riding the circuits.

MARSHALL’S MAJORITY
Congress has the power to create and abolish circuit court.

TAKEAWAY
Marshall pulled a power move, once again–he didn’t want to give Jefferson the chance to disobey an order that the judgeships were permanent.

Question 4

Correspondence of the Justices

Answer 4

Jefferson wrote Chief Justice Jay with dozens of hypothetical legal questions about US/France relations in order to check the legality of everything before moving forward.

SCOTUS responded, refusing to answer the questions:

• Constitution only allows SCOTUS to address cases or controversies–no advisory opinions!
• Checks and balances are a moot point if everyone’s conferring with everyone else all the time.
• President’s ability to call on others for opinions and advice was purposely limited to executive departments.

NOTES:

• Kind of ironic that Jay wrote an advisory opinion on the unconstitutionality of advisory opinions.
• The US is unique in its prohibition of such opinions.

Question 5

Hayden’s Case (Hayburn’s Case)

Answer 5

This case never reached SCOTUS, since it was filed ex officio on veterans’ behalf, rather than by anyone with concrete injury.

Plus, the governing pension statute was weird, as it allowed the executive to review judicial actions, which isn’t allowed.

Question 6

Ex parte Levitt (1937)

Answer 6

Standing requires legal injury–merely being a citizen/taxpayer isn’t enough.

FACTS

• After Black was appointed to SCOTUS, Levitt sued, believing that his term as US Senator during which he voted on a pay raise for judges constituted a violation of the Emoluments Clause.
• Levitt was a random private citizen with no specific relationship to Black.

PER CURIAM MAJORITY
*Levitt hadn’t been legally injured, so no standing. Not everything that’s harmful or upsetting constitutes standing.

AFTERWARD
This was mirrored in the Mellon cases, saying that taxpayers can’t sue Congress when it uses money for a specific program–their relief is electing different representatives.

Question 7

United States v. Windsor (2013)

Answer 7

When the US is a party, the adverse parties and case/controversy requirements may be satisfied if the executive branch continues to enforce a law, even if they refuse to defend it in court.

FACTS

• Windsor was married to another woman in Canada and moved back to NY, which recognized the marriage.
• The IRS didn’t recognize it, though, when Spyer died, due to DOMA.
• DOJ refused to defend DOMA, so the House authorized a group to defend on its behalf.

KENNEDY’S MAJORITY

• Past precedent - In Chadha, SCOTUS found there was standing even though the executive branch agreed with the plaintiff.
• Textualism - Rule prohibiting appeal by a party not seeking redress is a matter of prudence, not an Article III requirement. There’s case or controversy since federal government still enforced, which caused the injury.

SCALIA’S DISSENT

• Purposivism - Framers didn’t intend for Court to be such an ultimate arbiter of constitutionality when there isn’t a real case or controversy.
• Textualism - adverseness IS an Article III requirement, not a prudential concern.

ALITO’S DISSENT

• House had standing, but DOMA is constitutional.
• SCOTUS could hear a case between, say, House and Executive.
• Congress should be able to defend a law if a president refuses.

SGC NOTES
*DOMA unconstitutional, but Obama should have just refused to enforce under Take Care. No need for SCOTUS involvement.

ISSUE
*The injury was remedied after trial-court level, when DOMA was rendered unconstitutional. How can Lujan test still be satisfied?

Question 8

Standing Doctrine

Answer 8

FIRST requirement for case/controversy.

THE CRITERIA, per Scalia’s majority in Lujan:

(1) Plaintiff must have suffered actual or imminent LEGAL INJURY
(2) CAUSATION must be traceable to the challenged action of the defendant.
(3) Likely, rather than speculative, that a court decision can provide REDRESS.

Courts can give DECLARATORY JUDGMENTS that protect from likely injury that hasn’t yet occurred.

Question 9

Political Question Doctrine

Answer 9

FOURTH requirement for case/controversy.

Is the legal question even appropriate for judicial resolution, or should the other branches handle it amongst themselves?

SGC: despite the fact that there’s no judicial review clause, it’s inferred.

RULE
A question is political if the Constitution illustrates a textually demonstrable commitment to the issue to a coordinate political department or a lack of judicially discoverable/manageable standards for resolution.

TYPICAL CASES
Guarantee clause
Foreign affairs
Internal processes of Congress
Impeachment
War

Question 10

Luther v. Borden (1849)

Answer 10

Any case that requires the court to decide whether a government is valid and directly invokes the Guarantee Clause involves a non-justiciable political question.

FACTS

• Rhode Island still operated off its colonial charter, which limited suffrage to propertied classes.
• As a result, Dorr’s Rebellion broke out.
• Borden, of the charter government, came to arrest Luther for his involvement with the rebellion, but Luther sued Borden, arguing that the Charter government wasn’t republican under the Guarantee Clause and was therefore invalid.

TANEY’S MAJORITY
*Textualism - to guarantee a republican form of government is an executive duty–we won’t go there.

SGC
Taney ruled as he did, in part, because he feared that putting Guarantee in judiciary’s court would result in cases about slavery as non-republican.

Question 11

(Walter) Nixon v. United States (1993)

Answer 11

Issues regarding impeachment procedures are non-justiciable.

FACTS

• Nixon was a federal judge impeached for perjury.
• Senate created a committee to investigate him so the whole body could vote on his removal.
• Nixon argued that Article I, sct. 3 says that Senate shall have sole power to impeach, whereas only a few Senators investigated.

REHNQUIST’S MAJORITY

• Textualist - “sole” clearly commits this issue to the Senate–they have complete discretion; we can’t weigh in. All other text in there is just advice, not binding.
• Structuralist - Judicial branch doesn’t need to review because of checks and balances–impeachment power to house; Senate’s 2/3 supermajority vote.
• Policy - Impeachment and removal are of the very few checks on the judicial branch; allowing judiciary to adjudicate would undermine the check.
• History - Framers intentionally didn’t give impeachment to SCOTUS.

STEVENS’S CONCURRENCE
*Textualist - Even without “sole,” text indicates that impeachment is exclusive to Congress.

WHITE’S CONCURRENCE
*Cases regarding constitutionality of impeachment are justiciable, but they’re limited–we have the power to define “try” and “sole,” for example. No issues there, though.

SOUTER’S CONCURRENCE
*Policy - This case wasn’t justiciable, but I’m worried that it’s too broad to set a blanket statement. We may want to oversee future impeachments.

SGC: No way for judiciary to oversee - case of law and equity.