POL 447 - Exam 1

Judicial Restraint

Judicial Restraint or Judicial Activism?

Judges should not actively reshape policy, reinterpret statutes broadly, or expand constitutional rights beyond the text and original meaning.

Judicial Activism

Judicial Restraint or Judicial Activism?

The view the courts should intervene when a law, policy, or government action violates constitutional principles, even if doing so disrupts the status quo or overturns democratically enacted laws.

Writ of Mandamus

It is a court order compelling a government official to perform a duty. Marbury sought a mandamus ordering Madison to deliver his commission, but SCOTUS ruled it lacked constitutional authority to issue one.

Judiciary Act of 1789

It attempted to give SCOTUS power to issue writs of mandamus in original jurisdiction — which was struck down in Marbury v. Madison. This act’s invalidation created judicial review.

Judicial Review

Power of the Court to declare laws unconstitutional.

Origin: Dr. Bonham’s Case (1610)

Established in the U.S.: Marbury v. Madison (1803)

Jurisdiction

Original = first court to hear a case (e.g., state v. state). Appellate = reviewing lower court decisions; regulated by Congress.

Justiciability

Courts can hear the case.

Articles of Confederation

They could not impose taxes or regulate commerce, had weak national authority, and only formalized local customs.

What case established Judicial Review?

Established in Marbury v. Madison (1803). Originated from English precedent (Dr. Bonham’s Case, 1610) and early state court practice.

How does the Writ of Mandamus relate to Marbury v. Madison?

The writ of mandamus was the vehicle that allowed Marshall to assert judicial review. Without Marbury requesting that writ, the Court would not have confronted the jurisdictional question that led to the landmark ruling.

Why is the Judiciary Act of 1789 important today?

It directly shaped the structure and powers of the federal court system and because its partial invalidation in Marbury v. Madison created judicial review, the cornerstone of Supreme Court authority.

Original Jurisdiction

Original v. Appellate Jurisdiction?

first court to hear a case

Appellate Jurisdiction

Original v. Appellate Jurisdiction?

reviewing lower court decisions; regulated by Congress

What is a Federalist?

Federalist or Anti-Federalist?

They supported strong federal authority and ratification.

What is an Anti-Federalist?

Federalist or Anti-Federalist?

They feared centralized power and demanded explicit limits.

Historian Charles Beard

Critical Viewpoints of the Constitution

Constitution was an “economic argument” protecting property and upper‑class interests.

Constitution protects economic elites.

Justice Thurgood Marshall

Critical Viewpoints of the Constitution

Constitution was “defective from the start,” excluding most citizens.

Constitution must be understood through amendments and lived experience.

Considerations affecting court selections decisions

Rule 10, political opinions, U.S. Solicitor General, amicus curae brief, ideology of justices

What is Rule 10?

he Supreme Court is most likely to take a case when lower courts disagree on an important federal question or when a lower court has decided a major federal issue incorrectly or one that SCOTUS needs to settle.

What is an amicus curae brief?

A a document filed by an outside group - often an interest group, advocacy organization, or government actor - offering legal arguments, data, or policy perspectives to help the Court decide a case.

Who is the U.S. Solicitor General?

He decides which cases the federal government will appeal to the Supreme Court and argues those cases before the justices. He also files amicus curiae briefs on behalf of the United States and helps shape federal legal strategy.

Approaches of Constitutional Legal Interpretation

Original Intent, Stare Decisis, Original Meaning, Pragmatism, Polling Jurisdictions, Textualism, Judicial Attitudes

Original Intent

Approaches of Constitutional Legal Interpretation

Interprets the Constitution according to what the Framers intended at the time of drafting.

Stare Decisis

Approaches of Constitutional Legal Interpretation

“Let the decision stand.” Courts follow precedent unless there is a compelling reason not to.

Pragmatism

Approaches of Constitutional Legal Interpretation

It evaluates constitutional questions by forecasting real‑world consequences and choosing the interpretation that maximizes benefits and minimizes costs.

Judicial Attitudes

It reflect how justices’ personal ideologies influence their interpretation of constitutional text.

Original Meaning

Approaches of Constitutional Legal Interpretation

It asks what the words of the Constitution would have meant to ordinary people at the time it was written.

Polling Jurisdictions

Approaches of Constitutional Legal Interpretation

It looks at how foreign courts interpret similar issues to guide U.S. constitutional interpretation.

Textualism

Approaches of Constitutional Legal Interpretation

It interprets the Constitution strictly by its text, without considering intent or outside sources.

Judicial Role

Role of Politics

activism vs. restraint

Judicial Attitudes

Role of Politics

justices vote based on ideology

What was Shays’ Rebellion?

It exposed weaknesses of the Articles of Confederation and pushed toward drafting the Constitution.

What does a living document mean?

Its meaning evolves through judicial interpretation.

What is the Selection Incorporation Process?

Process of applying Bill of Rights protections to states through the 14th Amendment.

Standing to Sue

Injury, Causality, Redressability, Proper party

Advisory Opinions

Justiciable v. Non-justiciable disputes - 1/5 conditions

They violate separation of powers and harm Court legitimacy.

Collusive Suits

Justiciable v. Non-justiciable disputes - 1/5 conditions

Parties want the same outcome, lack true adversity, and are testing the law.

Mootness

Justiciable v. Non-justiciable disputes - 1/5 conditions

Case brought too late; no live controversy remains.

Ripeness

Justiciable v. Non-justiciable disputes - 1/5 conditions

Case brought too early; issues not fully developed.

Political Questions

Justiciable v. Non-justiciable disputes - 1/5 conditions

Constitutional issues better resolved by other branches; SCOTUS will not hear them.

Privileges or the Immunities Clause?

Part of the 14th Amendment intended to protect fundamental rights; limited by Slaughterhouse Cases.

Dr. Bonham’s Case (1610)

Sir Edward Coke voided a parliamentary act, establishing early judicial review.

Marbury v. Madison (1803)

Case

Legal Question 1: Does Marbury have the right to the commission?

Legal Question 2: If he has the right, and that right has been violated, do the laws of the USA afford him a remedy?

Legal Question 3: If they do afford him a remedy, is it a mandamus issuing from this Court?

Case Decision: Unanimous decision, the Court ruled against Marbury who never received his commission.

Analysis: It established the power of judicial review. Marshall clearly stated that it is emphatically the Court’s role to say what the “law is.

Key points from Marshall’s opinion:

1. Marbury had a right to the commission.

2. A remedy existed.

3. Mandamus was unconstitutional because it expanded original jurisdiction.
   Established judicial review.

Ex parte McCardle (1867)

Case

Legal Question: May the Congress withdraw jurisdiction from the Supreme Court after that jurisdiction has been given?

Case Decision: Yes, Congress may withdraw appellate jurisdiction under the exceptions clause.

Analysis: The case suggests that Congress has the authority to remove the Court’s appellate jurisdiction as it sees fit

Barron v. Baltimore (1833)

Case

Legal Question: Does the takings clause of the Fifth Amendment apply to the states?

Case Decision: No. By a vote of 6–0 the Court ruled that it did not have jurisdiction to decide the case.

Analysis: Marshall sent a clear message to the states that the Bill of Rights was intended only to protect the people against abusive actions of the federal government, not the states. When Madison introduced the Bill of Rights in Congress, he included specific limitations on state action, but Congress removed them from the proposed amendments

Bottom line: Bill of Rights applies only to federal government.

Slaughterhouse Cases (1873)

Case

Legal Question: Were the butchers deprived of their right to conduct business under the privileges or immunities clause?

Case Decision: No. The privileges or immunities clause will not be the vehicle to incorporate the Bill of Rights.

Analysis: The Court gutted the privileges or immunities clause. The Court would NEVER use the privileges or immunities clause to nationalize the Bill of Rights. This led to the dispute in Hurtado v. California (1884

Bottom line: Privileges or Immunities Clause cannot incorporate the Bill of Rights.

Hurtado v. California (1884)

Case

Legal Question: Does an individual accused of a capital crime have a right to a grand jury in state court under the Fifth Amendment?

Case Decision: No. By a vote of 7–1 the Court ruled in favor of the state.

Analysis: The case demonstrates the significance of state sovereignty. Each state has a right to make its own laws, as long as certain fundamental rights are not violated.

Bottom line: Grand jury is not a fundamental right required by due process.

Palko v. Connecticut (1937)

Case

Legal Question: Does the Fifth Amendment’s protection against double jeopardy apply to the states through the guarantee of due process of law?

Case Decision: No. By a vote of 8–1 the Court ruled in favor of the state.

Analysis: Fundamental rights are those without which liberty and justice could not exist, rights implicit in the concept of ordered liberty. It was not until Benton (1969) that the Court overruled Palko in part and applied the prohibition against double jeopardy through the 14th Amendment onto the states. Justice Cardozo modified the standards of selective incorporation doctrine to make it easier for specific provisions to be applied to the states.

Bottom line: Double jeopardy not fundamental under “ordered liberty.”

Additional note: Later overturned in Benton (1969).

Duncan v. Louisiana (1968)

Case

Legal Questions: Does a defendant convicted of simple battery-a misdemeanor punishable by a maximum of 2 years’ imprisonment & a $300 fine-have the right to a jury trial? AND Must Louisiana grant criminal defendants a jury trial, under the Sixth and the Fourteenth Amendments?

Case Decision: Yes. By a vote of 7–2 the Court ruled in favor of the plaintiff.

Analysis: Duncan redefined the test of Palko v. Connecticut (1937), which asked whether the right was so fundamental as to be ranked “implicit in the concept of ordered liberty,” to whether the right was “fundamental to the American scheme of justice.” AND The case selectively incorporated the “right to jury trial” to apply to the states.

Bottom line: Right to jury trial is fundamental to the American scheme of justice.

Federalist Party

Chief Justice John Marshall supported the______ _______ and believed SCOTUS must “say what the law is” and protect constitutional boundaries.

Non-justiciable

Courts cannot hear it.

Structural Analysis

Approaches of Constitutional Legal Interpretation

It interprets clauses in light of the Constitution’s overall structure, such as federalism or separation of powers.

Ex parte McCardle

In short this case is about …

Congress controls the Court’s appellate doors.

Marbury v. Madison

In short this case is about ….

Right existed. Remedy existed. Wrong Court. Judicial Review established.

Baron v. Baltimore

In short this case is about …

Bill of Rights binds the feds, not the states. Takings Clause doesn’t apply. Court has no jurisdiction.

Slaughterhouse Cases

In short this case is about …

Privileges or Immunities is gutted. No incorporation. Bill of Rights stays federal.

Hurtado v. California

In short this case is about …

Grand jury not fundamental. States choose their process. Due process doesn’t demand a grand jury.

Palko v. Connecticut

In short this case is about …

Double jeopardy not fundamental. Ordered liberty blocks it. Benton later overturns.

Duncan v. Louisiana

In short this case is about …

Jury trial is fundamental. New test replaces ordered liberty. Sixth Amendment incorporated.

Twinning v. New Jersey

What cases initiated the doctrine of selective incorporation?

14th Amendment

Selective incorporation primarily involves which constitutional provision?

What are fundamental rights?

rights considered essential to liberty/justice

What did the Timbs case look at?

rights deeply rooted in history and tradition

What did Duncan look into?

fundamental rights can be essential to a fair trial

Conservative Activist

Conservative Activist, Liberal Activist, or Restraint?

Citizens United v. Federal Election Commission (2010) - which struck down provisions of federal election law based upon free speech that had limited corporate and union spending on political advertisements.

Restraint

Conservative Activist, Liberal Activists, or Restraints?

Alden v. Maine (1999) - the Court held that Maine state employees could not sue the state for violating the overtime pay requirements of a federal act. State immunity from lawsuits “is a fundamental aspect of sovereignty of states which they retain.”

Liberal Activist

Conservative Activist, Liberal Activist, or Restraint?

Miranda v. Arizona (1966) - the Court ruled that Miranda’s 6th Amendment rights were violated and following the decision of all law enforcement were required to read an accused person their right to remain silent and right to represented by counsel.

Restraint

Korematsu v. United States (1944) - in which the Court upheld race-based discrimination against Japanese Americans during World War 2.

Liberal Activist

Conservative Activist, Liberal Activist, or Restraint?

Brown v. Board of Education (1954) - the Court ruled that public school segregation of races violates the equal protection clause of the 14th Amendment. Lower courts must ensure that African-Americans be admitted to schools with all deliberate speed.

Altitudinal Model and Strategic Model

Legal Model, Altitudinal Model, Strategic Model?

The authoring justice will intentionally alter, weaken, or omit certain legal arguments to keep moderate or swing justices from abandoning the coalition.

Legal Model with elements of the Strategic Model

Legal Model, Altitudinal Model, Strategic Model?

In Texas v. Johnson, Justice Scalia and Kennedy set aside their intense personal revulsion to join the 5-4 majority ruling that flag burning is protected political expression. As Justice Kennedy famously wrote in his concurrence, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we place them, compel the result.”

Legal Model

Legal Model, Altitudinal Model, Strategic Model?

The 6th Amendment’s trial by jury means a unanimous jury means a unanimous jury of 12 citizens, because that is what the word “jury” meant in 1792.

Attitudinal Model

Legal Model, Altitudinal Model, Strategic Model?

The Supreme Court justices are virtually immune from political accountability.

Attitudinal Model

Legal Model, Altitudinal Model, Strategic Model?

For the most part, Supreme Court justices lack ambition for higher or another office.

Strategic Model

Legal Model, Altitudinal Model, Strategic Model?

Justice Brennan realized he did not have 5 notes for strict scrutiny. Swing justices like Lewis Powell and John Paul Stevens were uncomfortable treating gender exactly like race. If Brennan pushed too hard, he would lose the majority, and a conservative plurality might rule against his broader policy goal.

Legal Model

Legal Model, Altitudinal Model, Strategic Model?

Chief Justice William Rehnquist upholds the Miranda rules in Dickerson v. United States (2000).

Attitudinal Model

Legal Model, Altitudinal Model, Strategic Model?

Supreme Court justices use precedent as a cover for their individual policy preferences.

Attitudinal Model

Legal Model, Altitudinal Model, Strategic Model?

Because the Supreme Court does have control over its own docket, the justices would refuse to decide a meritless case.

Legal Model

Legal Model, Altitudinal Model, Strategic Model?

In a case, the majority turned to Black’s Law Dictionary to determine “common usage” of child support.

Legal Model

What are the four aspects of the ______ Model?

1) Precedent

2) Plain Meaning

3) Intent of the Framers or legislators

4) Balancing

The ____ model stresses that precedent serves as a constraint on justices’ fulfilling their personal policy preferences.

Strategic Model

_______ Model

Justices are considered strategic actors that realize that alone they can accomplish very little. The opinion writer tries to accommodate their colleagues wishes through bargaining over the content of an opinion that can greatly alter the final policy.

Attitudinal Model

FIVE Factors that support the ______ Model

1) Justices cannot be removed from office for unpopular decisions.

2) Since SCOTUS is the nation’s highest court, lower courts cannot overrule its decisions.

3) ) The justices on SCOTUS lack ambition for higher office.

4) SCOTUS has discretion over its docket and can reject legally frivolous cases.

5) Congress may override SCOTUS’s statutory interpretation decisions, but its unlikely that Congress will or could react to such situations.

External Factors

• Public Opinion - Some scholars say they are, and offers three reasons. P. 38

• Partisan Politics - Political pressures from the outside can affect the Court.

• An indirect source of presidential influence is the Solicitor General (SG). He is quite successful in convincing he justices to adopt the position advocated during oral arguments. Interest Groups (IG) - IG’s attempt to influence Court decisions by submitting amicus curiae (friend of the Court) briefs.

Textualism

Methods of Constitutional Interpretation

D.C. v. Heller (2008) case which held that the Second Amendment to the United States Constitution protects an individual’s “rights to keep and bear arms” for private use.

Original Meaning

Methods of Constitutional Interpretation

Nixon v. U.S (1993) challenged the procedures of the Senate used to impeach a federal judge, Walter L. Nixon, Jr. The entire Senate did not try the case; instead, a special 12-member committee heard it and reported to the full body. Nixon argued that this procedure violated Article 1 of the Constitution, which states, “The Senate shall have the sole power to try all Impeachments.” Chief Justice Rehnquist considered the word “try” in Article 1.

Stare Decisis

Methods of Constitutional Interpretation

Planned Parenthood of Southern Pennsylvania v. Casey (1992) - the Court’s lead plurality opinion upheld the constitutional right to have an abortion in Roe v. Wade but lowered the standard for analyzing restrictions of that right, invalidation one regulation but upholding the others.

Pragmatism

Methods of Constitutional Interpretation

United States v. Leon (1984) - the Court’s majority opinion applied a cost-benefit analysis to justify a “good faith” seizure by police on an invalid search warrant.

Original Intent

Methods of Constitutional Interpretation

Coy v. Iowa (1988) - the high court maintained that the right to face-to-face confrontation was the essential intended element of the framers’ 6th amendment’s Confrontation Clause.

Polling Jurisdictions

Methods of Constitutional Interpretation

Lawrence v. Texas (2003) - the Court held that the Texas statute making it a crime for 2 persons of the same gender to engage in certain intimate sexual conduct violates the Due Process Clause. Justice Kennedy cited a case in the European Court of Human Rights to support his legal reasoning in Lawrence.

Original Intent

Methods of Constitutional Interpretation

McDonald v. Chicago (2010) - the Court reasoned that rights that are “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the 14th Amendment.

Structural Analysis

Methods of Constitutional Interpretation

I.N.S. v. Chadha (1981) - the Court held that the particular section of the Act in question did violate the Constitution.

Original Intent

Methods of Constitutional Interpretation

Wallace v. Jaffree (1985) - the Constitutional Founders expected to build the ‘wall of separation’ but the greatest injury of the ‘wall’ of notion.” continued Justice Rehnquist, is the mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.

Structural Analysis

Methods of Constitutional Interpretation

McCulloch v. Maryland (1819) - the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. The Necessary and Proper Clause was an important reason why Justice Marshall and others on the Court supported Congress power to establish a national bank.