PS 1 Module 8 The Courts

Federalist 78

Written by Alexander Hamilton, is the foundational defense of an independent federal judiciary with the power of judicial review—the authority to declare laws unconstitutional. It is the single most important document for understanding the role of the courts in the American constitutional system.

“The Least Dangerous Branch”

a phrase coined by Alexander Hamilton in Federalist No. 78 to describe the federal judiciary. It refers to the idea that the judiciary is inherently the weakest of the three branches of government because it has no control over either the "sword" (executive enforcement powers) or the "purse" (legislative taxing and spending powers).

Judicial Review

The power of courts to review the actions of the legislative and executive branches and to declare them unconstitutional and therefore invalid. It is the judiciary's primary check on the other branches of government.

Stuart v. Laird

a Supreme Court decision that upheld the constitutionality of Congress's power to abolish courts and reassign judges, and it implicitly affirmed that the Supreme Court's jurisdiction could be altered by Congress. The case is most significant for what it did not decide: it declined to address the constitutionality of the repeal of the Judiciary Act of 1801, effectively sidestepping a confrontation between the Court and Congress.

Marbury v. Madison

The Supreme Court decision that established the principle of judicial review, the power of the federal courts to declare acts of Congress unconstitutional. It is widely considered the most important case in American constitutional law.

Textualism

a method of statutory and constitutional interpretation that focuses exclusively on the ordinary meaning of the text as it would have been understood by a reasonable person at the time it was written. Textualists reject reliance on legislative history, subjective intent of the drafters, or policy consequences.

Originalism

a method of constitutional interpretation that holds that the Constitution should be interpreted according to the original public meaning of its text at the time it was ratified. Originalists believe that the meaning of the Constitution is fixed and does not change over time unless amended through the Article V amendment process.

“Active Liberty”

a concept developed by Justice Stephen Breyer in his 2005 book of the same name. It refers to a theory of constitutional interpretation that emphasizes democratic participation and practical consequences over abstract textual or historical analysis. Breyer contrasts it with "passive liberty" — the traditional focus on protecting individuals from government interference.

Stephen Breyer

a pragmatic, purpose-oriented jurist associated with the liberal wing of the Court. He is best known for his theory of "active liberty" and his emphasis on practical consequences over abstract textual analysis.

Antonin Scalia

Defined as the intellectual leader of the conservative legal movement and the most influential advocate of originalism and textualism in American constitutional history.

Living Constitution

a theory of constitutional interpretation holding that the Constitution's meaning evolves over time to adapt to changing social values, circumstances, and understandings, without requiring a formal constitutional amendment. It is the primary alternative to originalism.

“Will of the Reasonable Legislator”

A concept in statutory interpretation used primarily by Justice Stephen Breyer to justify considering legislative purpose and intent when interpreting ambiguous statutes. It is Breyer's alternative to both strict textualism (Scalia) and reliance on actual legislative history (committee reports, floor debates).

Balancing Test

A method of judicial decision-making in which a court weighs competing interests or values against each other to determine the outcome of a case, rather than applying a fixed, rule-based standard. It is associated with pragmatic, consequentialist approaches to constitutional law and is most commonly used in areas involving individual rights versus government interests.

Earl Warren

defined as the most consequential Chief Justice of the 20th century and the leader of the most activist liberal Court in American history — the Warren Court.

Thurgood Marshall

defined in two distinct roles: as the most important civil rights lawyer in American history before joining the Court, and as a passionate liberal Justice on the Supreme Court (1967–1991).

Brown v. Board of Education

the most important Supreme Court decision of the 20th century and the foundational case of the modern civil rights movement. It struck down racial segregation in public schools as unconstitutional under the Equal Protection Clause of the 14th Amendment.

Roe v. Wade

one of the most consequential and controversial Supreme Court decisions in American history. It recognized a constitutional right to abortion under the Due Process Clause of the 14th Amendment.

Dobbs v. Jackson Women’s Health Organization

The decision that overruled Roe v. Wade and Planned Parenthood v. Casey, returning the question of abortion regulation to the states. It is the most significant federalism decision and the most dramatic reversal of precedent in modern Supreme Court history.

NFIB v. Sebelius

The Supreme Court decision that upheld the constitutionality of the Affordable Care Act (ACA) but sharply limited the scope of Congress's commerce power. It is the most important federalism decision since the New Deal and a landmark case on the limits of federal power.

Constraints on the Court

refers to the institutional, political, and practical limits on the Supreme Court's power. Despite its authority to interpret the Constitution and strike down laws, the Court is far from all-powerful and must operate within several key constraints.

Writ of Certiorari

the primary mechanism by which the Supreme Court decides which cases to hear. It is a discretionary order from the Court to a lower court to send up the record of a case for review.

Court Packing

The practice of increasing the number of seats on the Supreme Court to change its ideological balance. It is most commonly associated with President Franklin D. Roosevelt's failed 1937 proposal, and is presented as the most dramatic and controversial check on judicial power.

“Off the wall” to “On the wall”

a framework attributed to legal scholar Jack Balkin that describes how constitutional ideas move from being considered fringe or unserious to being considered plausible and within the mainstream of legal debate. It is a theory of constitutional change that emphasizes the roles of political, social, and intellectual movements.

Judicialization of politics

The process by which courts and judicial procedures increasingly take center stage in resolving political disputes that were traditionally handled by legislatures, executives, or the democratic process. It is a central theme of the course, as Van Houweling presents the modern Supreme Court as deeply enmeshed in essentially political questions.