Constitutional Analysis

What is the Supreme Court and why is it there?

Read Article 3 Section 1 of the US Constitution.

Identify the powers of the judicial branch.
“The judicial Power of the United States, shall be vested in
one supreme Court, and in such inferior Courts as the
Under the
Congress mayUS Constitution,
from time to time aordain
president must be;The
and establish.
• A natural-born
Judges, both of the supreme and inferior Courts, shall hold
US citizen
•their Offices
At least 35during
yearsgood
old Behavior, and shall, at stated
Times, receive for their Services a Compensation which
•A USnot
shall resident for at least
be diminished 14their
during yearsContinuance in
Office.”
 Constitutional Analysis

What is the Supreme Court and why is it there?

The US Supreme Court has the power;

• To interpret the U.S. Constitution
• Of Judicial Review
• To interpret laws to ensure they are
Under the US Constitution, a president must be;
constitutional
• • To
A natural-born
ensure laws are US faithfully
citizen applied.
• • To
Atrule
leaston35cases
yearsinvolving
old the Constitution,
• federal laws, treaties
A US resident and disputes
for at least 14 years between
states
Enquiry Question: What powers does the
Supreme Court have?
 Learning Objectives
• To identify the constitutional role and powers
of the Supreme Court
• To explain the analogy ‘the least dangerous
branch’
• To analyse the impact of the power of judicial
review
The US Government
What are the roles of the Supreme Court?

Constitutional Interpretation
Judicial Review
Judicial Activism
Judicial Restrain
 Constitutional Interpretation
• hears cases involving public officials or where states are
a party (original jurisdiction)
• highest court of appeal (appellate jurisdiction)
• hears cases that are a cause of
confusion or controversy in lower courts
• Justices can interpret constitution literally (strict
constructionist)
• Justices can interpret constitution by ‘reading between
the lines’ (loose constructionist)
 Judicial Review

• judicial review established through Marbury v.

Madison (1803)
• the Court may void any actions or statutes that
come into conflict with the constitution
• judiciary can hold other branches of government
to its own interpretation of the constitution
• example in case of Bush v. Gore (2000) where
Supreme Court overturned judgement of Florida
Supreme Court, making Bush the 43rd president
 Judicial Activism

• differences in interpretation of the same part of the

constitution over a period of time can sometimes be
the equivalent of legislation e.g. Plessy v. Ferguson
(1896) and Brown v. Board of Education (1954) on
segregation
• can be argued court did not interpret constitution but
amended it
• “The Supreme Court of the United States assumed
quasi legislative authority” - John W Brocker
• drags the other two branches along
 Judicial Restraint

• the court follows precedent and shows judicial

restraint
• precedent can be challenged and changed but
generally over a long period of time and several
cases
• precedent is the norm and the Court moves
slowly, if at all
• if the judiciary used power of review excessively
or controversially, it may come under
attack from the other two branches
• court has little power to enforce its decisions
 “In 2007 there were 1,143,358 active lawyers working
the USA.”

“American courts hear over 10 million cases a year –

although most of this is in the state or local courts.”

“Federal courts (those set up by the federal government)

hear about 300,000 cases a year.”

“In the 2010-2011 session, the US Supreme Court (the

highest court in the land) heard 17 cases.”
 Structure of the US Court System
Watch the video: US Crash Course Government & Politics – Structure of Court System.
The Federal and State Courts
 Pause For Thought
Jurisdiction
Jurisdiction = the power, right, or authority to interpret
and apply the law
Article 3, Section 2
What sort of cases does the
“The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, Supreme Court have
the Laws of the United States, and Treaties jurisdiction over?
made, or which shall be made, under their Cases that involve;
Authority; to all Cases affecting Ambassadors, • Different states and the
other public Ministers and Consuls; to all Cases
of admiralty and maritime Jurisdiction; to federal government
Controversies to which the United States shall • Arguments between
be a Party; to Controversies between two or different states or citizens
more States; between a State and Citizens of of different states
another State; between Citizens of different
States; between Citizens of the same State • The USA is a party
claiming Lands under Grants of different • Ambassadors, ministers
States, and between a State, or the Citizens and consuls of other
thereof, and foreign States, Citizens or countries within the USA
Subjects.”
Cases the Supreme Court will
hear
Different states and the federal
government
Arguments between different
states or citizens of different
states
The USA is a party
Ambassadors, ministers and
consuls of other countries within
the USA
Example
United States v. Virginia (1996)
New York v. United States (1986)
Tison v. Arizona (1987)
McDonald v. Chicago (2010)
Gonzales v. Oregon (2006)
United States v. Hayes (2009)
Rapanos v. United States (2006)
United States v. Gonzales-Lopez
(2006)
Federal Republic of Germany v.
United States (1999)
 Cases involving; Arguments between different states or
citizens of different states
Tison v. Arizona (1987) McDonald v. Chicago (2010)
• Felony murder and the • Case to resolve conflicts
death penalty: death between certain Chicago gun
penalty is constitutional for restrictions and the Second
major participants in Amendment. The Court held
felonies who exhibit that the right of an individual
to "keep and bear arms"
extreme indifference to protected by the Second
human life, even if someone Amendment and applies to
else personally kills the the states. The decision
victim. cleared up the uncertainty left
http://en.wikipedia.org/wiki/Ti in scope of gun rights in regard
son_v._Arizona to the states.
 Cases involving; The USA as a party
United States v. Hayes (2009)
• People who have been
convicted of misdemeanour
domestic violence crimes
may not possess firearms as
long as the government
proves that the underlying
offense involved a domestic
relationship
http://en.wikipedia.org/wiki
/United_States_v._Hayes
Rapanos v. United States (2006)
• Whether wetlands are part
of the "navigable waters of
the United States" and thus
regulated by the Clean
Water Act
United States v. Gonzalez-Lopez
(2006)
• A trial court's erroneous
deprivation of a criminal
defendant's choice of
counsel entitles him to
reversal of his conviction
 Cases involving; Different states and the federal government

United States v. Virginia (1996) New York v. United States (1986)

• The Supreme Court of the • The title provision of the
United States struck down Low-Level Radioactive
the Virginia Military Waste Policy Amendments
Institute's long-standing Act of 1985 violated the
male-only admission policy, 10th Amendment
violating the Fourteenth
Amendment's Equal
Protection Clause.
http://en.wikipedia.org/wiki
/United_States_v._Virginia
 Cases involving; Ambassadors, ministers and consuls of other
countries within the USA
Federal Republic of Germany v.
United States (1999)
• Application of the Vienna
Convention on Consular
Relations to death penalty
cases.
http://en.wikipedia.org/wiki
/Federal_Republic_of_Germ
any_v._United_States
 Pause For Thought
Jurisdiction
Jurisdiction = the power, right, or authority to interpret
and apply the law
Article 3, Section 2
What is “original
“In all Cases affecting Ambassadors, other
public Ministers and Consuls, and those in jurisdiction”?
which a State shall be Party, the supreme Court The ability and authority to
shall have original Jurisdiction. In all the other decide cases based on hearing
Cases before mentioned, the supreme Court testimony and viewing
shall have appellate Jurisdiction, both as to
Law and Fact, with such Exceptions, and under evidence the first time they
such Regulations as the Congress shall make. are heard.
The Trial of all Crimes, except in Cases of What is “appellate
Impeachment, shall be by Jury; and such Trial jurisdiction”?
shall be held in the State where the said
Crimes shall have been committed; but when The power of the Supreme
not committed within any State, the Trial shall Court to review decisions and
be at such Place or Places as the Congress may change outcomes of decisions
by Law have directed.” of lower courts.
 Pause For Thought
Treason
Article 3, Section 3
“Treason against the United States, shall consist only in
levying War against them, or in adhering to their
Enemies, giving them Aid and Comfort. No Person shall
be convicted of Treason unless on the Testimony of
two Witnesses to the same overt Act, or on Confession
in open Court. The Congress shall have power to
declare the Punishment of Treason, but no Attainder of
Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.”
 Constitutional Analysis
Read Article 3;
What does the Constitution not tell us about the Judiciary?

• Only 1 federal court is mentioned – the Supreme Court (all others

decided by Congress)
• No qualifications to be Supreme Court Justice (no
minimum/maximum age, residency, citizenship etc.)
• No indication of how many judges there should be on the SC (only
that Congress will decide)
• Under the
Main role US Constitution,
intended a president
as an appeals court (due to onlymust be;
rarity of
• other 4 types of cases)
A natural-born USto citizen
deal with ‘controversies’

• Out
NB: At least
of the 35 yearsput
thousands oldforward to the SC, the SC only chooses
• cases
A USthat
resident for
will result in at leastof 14
a ruling years importance.
constitutional
 Learning Objectives
• To identify the constitutional role and powers
of the Supreme Court
• To explain the analogy ‘the least dangerous
branch’
• To analyse the impact of the power of judicial
review
• This classic book on the role of
the Supreme Court in our
democracy traces the history of
the Court, assessing the merits of
various decisions along the way.
• Eminent law professor Alexander
Bickel begins with Marbury vs.
Madison, which he says gives
shaky support to judicial review,
and concludes with the school
desegregation cases of 1954,
which he uses to show the extent
and limits of the Court’s power.
Read the article from the GWJ
Journal.
How far do you agree with Bickel’s
description of the Supreme Court?
 Learning Objectives
• To identify the constitutional role and powers
of the Supreme Court
• To explain the analogy ‘the least dangerous
branch’
• To analyse the impact of the power of judicial
review
 What is Judicial Review?
“The power of the judiciary to review laws and governmental actions to see whether
they conform to the Constitution. If they violate the Constitution, the court has the
power to overturn them.”
Does the Constitution Give the Supreme Court
the Power to Invalidate the Actions of Other
Branches of Government?
Questions
1. Is judicial review a good idea? Should
nine unelected judges be able to tell
elected representatives what they can
and cannot do?
2. Are courts more likely to block an
enlightened consensus with their
adherence to outdated principles or to
protect the politically weak from YOUR TASK:
oppressive majorities?
• Read the extract explaining the
3. Are judges, protected with lifetime tenure origins of judicial review.
and drawn generally from the educated
• Consider the questions in pairs.
class, more likely to be reflective and
above the passing enthusiasms that drive • Be ready to feedback your
legislative action? responses in a Question Time
4. Could the USA have a workable system of debate!
government without judicial review?
 “The prime and most necessary function of the Court has been that of validation, not
that of invalidation. What a government of limited powers needs, at the beginning and
forever, is some means of satisfying the people that it has taken all steps humanly
possible to stay within its powers."
--Professor Charles L. Black

Read the hand-out: Impact of

Judicial Review
 Supreme Court Interpretation Task
• As the interpreter of the Constitution, the Supreme Court has
tremendous powers that greatly impact the lives of common
Americans.
• The judicial history of the Supreme Court is rich with these
examples;
• Hirabayashi v. The U.S. which upheld the internment of 120,000
Japanese-Americans during WWII
• Miranda v. Arizona which made informing a suspect of his/her
rights mandatory
• Vernonia School Dist. v. Acton which allowed for random drug
testing of students involved in athletic events.
• In your small groups review one of the following cases assigned to
you by your teacher (All the cases have a direct affect on
students). Then discuss in your group the debriefing questions.
 Learning Objectives
• To identify the constitutional role and powers
of the Supreme Court
• To explain the analogy ‘the least dangerous
branch’
• To analyse the impact of the power of judicial
review
 Homework
Application Task:
What is judicial review, and why is it controversial?
(15)
Flipped Learning Preparation Task:
The American Legal System (McKay p319-330)
Nature and role of the Supreme Court (Pearson
p385-387)
Stretch & Challenge Task
Podcast Lecture: The Supreme Court – the ‘least
dangerous branch of government’?
Does the Constitution Give the Supreme Court the Power to Invalidate the Actions of Other
Branches of Government?
• In 1800 the Federalists and their candidate, President John Adams, QUESTIONS
lost the election to Thomas Jefferson.
• Early in 1801 the lame-duck Federalist Congress enacted a 1. Is judicial review a good idea? Should nine unelected judges
controversial Judiciary Act that created 58 new judgeships, be able to tell elected representatives what they can and
including 42 justiceships of the peace, for Adams to appoint. cannot do?
• Jefferson complained that the Federalists "have retired into the
judiciary as a stronghold."
• On the night March 3, 1801, John Marshall, acting as secretary of
state, affixed the official seal to the commissions for the justices of
the peace. He did not, however, deliver the commissions. 2. Are courts more likely to block an enlightened consensus with
• The next day, after Thomas Jefferson was inaugurated, he directed their adherence to outdated principles or to protect the
the new secretary of state, James Madison, to withhold delivery of politically weak from oppressive majorities?
17 of the 42 commissions, including that of William Marbury.
• William Marbury sued to require Madison to hand over his
commission.
• The decision in Marbury's case, written by Chief Justice John
Marshall (the very same John Marshall who affixed the seal to
Marbury's commission--talk about a conflict of interest!) 3. Are judges, protected with lifetime tenure and drawn
established and justified the power of judicial review. generally from the educated class, more likely to be reflective
• It is the first case read by virtually every first-year law student and and above the passing enthusiasms that drive legislative
is generally considered the greatest of all landmark cases. action?
• Marshall strained to reach his result. The plain words of Section
13 of the Judiciary Act indicate that Marbury went to the wrong
court or invoked the wrong statute (or both), but Marshall
proceeded as if the suit were authorized by Section 13 and then
declared the statute unconstitutional on the grounds that it 4. Could the USA have a workable system of government without
purported to expand the Court's original jurisdiction in violation of judicial review?
Article III.
• Marbury's suit was dismissed for lack of jurisdiction.
• Marshall's decision--brilliant in its conception--allowed the Court
to brand Jefferson a violator of civil rights without issuing an order
that the President could have ignored.