The Judicial Branch

1
The Judicial Branch

• The Supreme Court's only armor is the cloak of
  public trust its sole ammunition, the collective
  hopes of our society.
• Irving R. Kaufman

2
The Judicial Branch
At 375 words, Article III provides the shortest
description of any of the three branches of
government. It reads, in part 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 Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which
shall not be diminished during their Continuance
in Office.
Oddly, the Courts most important powerthat of
judicial reviewis never explicitly mentioned in
the Constitution.
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The Power of Judicial Review
If this power is not found in the Constitution,
where does it come from? There are two early
sources

• Alexander Hamiltons essay, Federalist 78, makes
  it clear that the framers intended the Courts to
  have the power of judicial review. He writes
  that the interpretation of the laws is the
  proper and peculiar province of the courts.
• Just as important, however, is an early Supreme
  Court case titled Marbury v. Madison (1803),
  which asserted and solidified that power.

4
The Power of Judicial Review
If this power is not found in the Constitution,
where does it come from? There are two early
sources

• Federalist 78, written by Hamilton
• Marbury v. Madison (1803)

5
The interpretation of the laws is the proper and
peculiar province of the courts. A Constitution
is, in fact, and must be regarded by the judges
as a fundamental law. It therefore belongs to
them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the
legislative body. If there should happen to be an
irreconcilable variance between the two, that
which has the superior obligation and validity
ought, of course, to be preferred or, in other
words, the Constitution ought to be preferred to
the statute, the intention of the people to the
intention of their agents. Alexander Hamilton,
Federalist 78
6
Election of 1800
X
Thomas Jefferson
John Adams
Justice of the Peace (D.C.)
William Marbury
James Madison
7
Election of 1800
Thomas Jefferson
William Marbury
writ of mandamus
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This is the very essence of judicial duty
It is emphatically the duty of the Judicial
Department to say what the law is, wrote Chief
Justice John Marshall in Marbury v. Madison
(1803). Those who apply the rule to particular
cases must, of necessity, expound and interpret
the rule. If two laws conflict with each other,
the Court must decide on the operation of each.
So, if a law be in opposition to the
Constitution, if both the law and the
Constitution apply to a particular case, so that
the Court must either decide that case
conformably to the law, disregarding the
Constitution, or conformably to the Constitution,
disregarding the law, the Court must determine
which of these conflicting rules governs the
case. This is of the very essence of judicial
duty.
John Marshall
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(No Transcript)
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Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1905 Lochner v. New York
• 1954 Brown v. Board of Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore
• 2010 Citizens United v. FEC
• 2012 National Federation of Independent
  Business et al v. Sebelius
• Secretary of Health and Human
  Services

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Dred Scott vs. Sandford (1857)
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In the Dred Scott case (1857), Chief Justice
Roger Brooke Taney (himself a slave owner)
asserted that no black person in the United
States enjoyed any rights which the white man
was bound to respect. Furthermore, he argued
the Missouri Compromise limiting the spread of
slavery was unconstitutional because
propertyin this case, a slavecould not be
taken from a person without due process of law.
The decision helped to incite Civil War.
13
Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1905 Lochner v. New York
• 1954 Brown v. Board of Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore
• 2010 Citizens United v. FEC
• 2012 National Federation of Independent
  Business et al v. Sebelius
• Secretary of Health and Human
  Services

14
Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1954 Brown v. Board of
• Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore

15
Separate but Equal
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Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1905 Lochner v. New York
• 1954 Brown v. Board of Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore
• 2010 Citizens United v. FEC
• 2012 National Federation of Independent
  Business et al v. Sebelius
• Secretary of Health and Human
  Services

17
Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1954 Brown v. Board of
• Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore

18
Separate but Equal
On June 7, 1892, a 30-year-old colored shoemaker
named Homer Plessy was jailed for sitting in the
White car of the East Louisiana Railroad.
Plessy was only one-eighth black (light skinned
enough to pass for white), but under Louisiana
law, he was considered black and therefore
required to sit in the Colored car.
19
In Plessy v. Ferguson (1896), the U.S. Supreme
Court argued that the fact that state law does
not conflict with the Thirteenth Amendment, which
abolished slavery...is too clear for argument...A
statute which implies merely a legal distinction
between the white and colored racesa distinction
which is founded in the color of the two races,
and which must always exist so long as white men
are distinguished from the other race by
colorhas no tendency to destroy the legal
equality of the two races... The object of the
Fourteenth Amendment was undoubtedly to enforce
the absolute equality of the two races before the
law, but in the nature of things it could not
have been intended to abolish distinctions based
upon color, or to enforce social, as
distinguished from political equality, or a
commingling of the two races upon terms
unsatisfactory to either.
The Plessy decision set the precedent that
separate facilities for blacks and whites were
constitutional as long as they were equal. The
separate but equal doctrine was quickly
extended to cover many areas of public life, such
as restaurants, theaters, restrooms, and public
schools.
20
Brown v. Board of Education of Topeka, Kansas
(1954)
In a unanimous decision the Court overturned the
"separate but equal" doctrine of Plessy v.
Ferguson (1896) and ruled that separate public
schools for black and white students were
inherently unequal, violating the equal
protection guarantee of the 14th Amendment.
Linda Brown
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Brown v. Board of Education of Topeka, Kansas
(1954)
Linda Brown
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"Segregation now, segregation tomorrow,
segregation forever. George Wallace, Governor
of Alabama
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Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1905 Lochner v. New York
• 1954 Brown v. Board of Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore
• 2010 Citizens United v. FEC
• 2012 National Federation of Independent
  Business et al v. Sebelius
• Secretary of Health and Human
  Services

24
Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1954 Brown v. Board of
• Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore

25
Griswold v. Connecticut (1965)
Estelle Griswold, in front of the New Haven,
Connecticut offices of Planned Parenthood.
26
Roe v. Wade (1973)

• 1st trimester The state has no compelling
  interest in protecting the health of the woman
  because abortion in early pregnancy, although
  not without its risks, is relatively safe.
• 2nd trimester Since the risk to the woman
  increases as her pregnancy continues, the state,
  in promoting its interest in protecting the
  health of the woman may regulate the abortion
  procedure in ways that are reasonably related to
  maternal health.
• 3rd trimester Since the fetus has the capability
  of meaningful life outside the pregnant womans
  womb at about 28 weeks, but as early as 24
  weeks, the states interest in protecting
  potential life becomes compelling at this point
  of viability.

27
Today, because of advances in medical science,
some consider Roe v. Wades trimester framework
to be unsound and unworkable.
Josie Duggar, born to reality TV stars, Jim Bob
and Michelle Duggar, was born at 25 weeks. She
weighed just 1 lb., 6 oz.
28
Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1905 Lochner v. New York
• 1954 Brown v. Board of Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore
• 2010 Citizens United v. FEC
• 2012 National Federation of Independent
  Business et al v. Sebelius
• Secretary of Health and Human
  Services

29
Bush v. Gore (2000)
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Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1905 Lochner v. New York
• 1954 Brown v. Board of Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore
• 2010 Citizens United v. FEC
• 2012 National Federation of Independent
  Business et al v. Sebelius
• Secretary of Health and Human
  Services

31
People, for reasons of their own, often fail to
do things that would be good for them or good for
society. Chief Justice John Roberts
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Timeline of Major Supreme Court Cases

• 1803 Marbury v. Madison
• 1819 McCulloch v. Maryland
• 1857 Dred Scott v. Sandford
• 1896 Plessy v. Ferguson
• 1954 Brown v. Board of
• Education
• 1965 Griswold v. Connecticut
• 1973 Roe v. Wade
• 2000 Bush v. Gore

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Checks and Balances on the Courts Power

• Appointment and Removal. Both Congress and the
  President can, over time, alter the composition
  of the court through the kinds of appointments
  they nominate and confirm. Federal judges can
  also be impeached for their behavior.
• Constitutional Amendment. A Supreme Court
  interpretation of the Constitution can be
  overruled by amending the Constitution. But this
  may be the weakest check because it is difficult
  to do. It was done only twice before, with the
  11th Amendment (a citizen of one state cannot sue
  another state without the states consent) and
  the 16th (making income taxes constitutional).
• Statutory Revision. A Supreme Court
  interpretation of a statute can be modified by
  revising the statute in question.
• Non-Implementation. Finally, one restraint on
  the Courts power exists because of the very
  nature of the courts. A judge has no police
  force or army. Decisions that are made can
  sometimes be resisted or ignored. It may be
  unlikely, but not unheard of.
• Public Opinion. ??????

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Clarence Thomas (G.H.W. Bush 1991)
Antonin Scalia (Reagan 1986)
Anthony Kennedy (Reagan 1988)
The Least Dangerous Branch?
Ruth Bader Ginsburg (Clinton 1993)
Stephen Breyer (Clinton 1994)
John Roberts (G.W. Bush 2005)
Sonia Sotomayor (Obama 2009)
Samuel Alito (G.W. Bush 2006)
Elena Kagan(Obama 2010)
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(No Transcript)
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Checks and Balances on the Courts Power

• Appointment and Removal
• Constitutional Amendment
• Statutory Revision
• Non-Implementation
• Public opinion (?)

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The Debate over Gay Marriage
As our society has changed and evolved, so too
has the publics opinion on gay marriage - and so
has mine. Sen. Tom Carper (D-Delaware)
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Failed Supreme Court Nominees
Of the 156 nominations that presidents have made
for the Supreme Court since 1789, thirty-five
have failed for one reason or another, including
Harriet Miers, who withdrew her name from
consideration in October 2005. Most failed
nominations never make it to the Senate floor.
Just eleven nominees were rejected by the full
Senate, most recently Robert Bork in 1987.
Source http//www.usatoday.com/news/washington/ju
dicial/2005-10-27-scotusflops_x.htm
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Ginsburg Kagan Breyer Sotomayor Kennedy Alito Robe
rts Scalia Thomas
Liberal
Conservative
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(No Transcript)
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Judge Sonia Sotomayor faces off against the
Senate Judiciary Committee this week in a bid to
become the 111th justice of the U.S. Supreme
Court. The public discussion of her suitability
for this job thus far suggests that the upcoming
hearing will be a carnival of unanswerable
questions ("Judge Sotomayor, can you prove to
this committee that you are not a reverse
racist?") and her nonresponsive answers
("Senator, I must decline to answer that
question, as it may come before me in some future
case"). Senators more accustomed to making
speeches than asking questions will spill
thousands of words on simple inquiries. And a
judge more accustomed to asking questions than
making speeches will use well-rehearsed dodges to
avoid answering. The judicial-confirmation
process is the political equivalent of Dancing
With the Stars, in that the senators perform
complex leaps and turns while admiring themselves
in the mirror, while the nominee shuffles her
feet and calls it a foxtrot There is little
doubt that Sotomayor will be handily confirmed.
Her judicial record is unremarkable, and her life
story is exceptional. And this is the paradox of
the Confirmation Foxtrot we learn too much that
is trivial and not enough that is important.
Dahlia Lithwick, Newsweek, July 20, 2009