VOLUME I: SOURCES OF POWER AND RESTRAINT
CHAPTER 1:
THE SUPREME COURT IN THE CONSTITUTIONAL SYSTEM
Chapter Overview
Notes on Excerpted Cases
Questions for Thought and Discussion
Multiple Choice Questions
Essay Questions
Hypothetical Problem (for Classroom Discussion or Essay Examination)
Introduction of Topic in Lecture
Questions for Website
CHAPTER OVERVIEW:
The Courts: Crucibles of Constitutional Law
Crossing the Threshold: Access to Judicial Review
The Supreme Court’s Decision Making Process
The Development of Judicial Review
The Art of Constitutional Interpretation
Judicial Activism and Restraint
NOTES ON EXCERPTED CASES:
Marbury v. Madison (1803). William Marbury was appointed Justice of the Peace for the
District of Columbia by outgoing President John Adams. The commission was signed and
sealed but not delivered to Marbury before President Adams’ term ended. The new
Jefferson Administration refused to deliver the commission. Marbury brought suit in the
Supreme Court under its original jurisdiction, asking the Court to issue a writ of mandamus
to force James Madison (Jefferson’s Secretary of State) to deliver the commission. The
Marshall Court determined that although Marbury was entitled to the commission, and that
the writ of mandamus was the appropriate remedy, the Court was powerless to issue the
writ. The Court held that Section 13 of the Judiciary Act of 1789, which was interpreted as
empowering the Court to issue writs of mandamus in cases arising under its original
jurisdiction, was null and void. In the Court’s view, Section 13 represented an
unconstitutional expansion of the Court’s original jurisdiction, which, unlike its appellate
Eakin v. Raub (1825), Gibson J., dissenting. Although the specific issue before the
Pennsylvania Supreme Court in this otherwise unremarkable case is of little interest today,
Justice Gibson’s dissenting opinion remains important for its rejoinder to John Marshall’s
defense of judicial review. Justice Gibson contended that the courts had no more authority
Scott v. Sandford (1857). Dred Scott was a slave belonging to a surgeon in the U.S. Army.
He was taken by his master into territories where slavery was forbidden by the Missouri
Compromise of 1820. Upon his return to Missouri, Scott brought suit in federal court,
arguing that his residency in a “free” territory had abolished his servitude. On appeal, the
Ex Parte McCardle (1869). After the Civil War, Congress passed the Reconstruction Acts
which, among other things, imposed military rule on most of the southern states formerly
comprising the Confederacy. As part of this program, military tribunals were authorized to
try civilians who interfered with Reconstruction. William H. McCardle, editor of the
Vicksburg Times, published a series of editorials highly critical of Reconstruction.
Consequently, he was arrested by the military and held for trial by a military tribunal.
McCardle sought release from custody through a petition for habeas corpus in federal
court. Congress in 1867 had extended federal habeas corpus jurisdiction to cover state
prisoners, which applied to McCardle, since he was in the custody of the military
Cooper v. Aaron (1958). This case stemmed from the efforts of Arkansas governor Orval
Faubus and other state and local officials to block the court-ordered desegregation of
Central High School in Little Rock in 1957. The Governor’s action caused the Little Rock
School Board to petition the federal district court for a delay in the implementation of its
Baker v. Carr (1962). Residents of Knoxville, Chattanooga, Nashville and Memphis,
Tennessee brought suit in federal court to challenge the apportionment of the state
legislature, which had not changed since 1901. The district court dismissed the case on
Elk Grove Unified School District v. Newdow (2004). In March 2000, Michael A.
Newdow filed a lawsuit challenging a California statute requiring “every public elementary
school” to begin each day with “appropriate patriotic exercises.” Elk Grove Unified
School District implemented the state law by requiring each class to recite the pledge of
allegiance to the flag, which included the words “under God.” Newdow, the non-custodial
parent of a kindergartner attending a school within the Elk Grove Unified School District,
argued the words “under God” violated the Establishment and Free Exercise Clauses of the
First Amendment of United States Constitution, and sought an injunction to prevent the
School District from requiring students to recite the Pledge of Allegiance. Sandra
QUESTIONS FOR THOUGHT AND DISCUSSION:
1. Should the Constitution be amended to provide for the election of federal judges? If the
appointive system should be retained, should federal judges be appointed to set terms
2. If you were president of the United States and had the opportunity to appoint a justice
3. Is Chief Justice Marshall’s opinion in Marbury v. Madison an example of an
4. How, if at all, could the Supreme Court have avoided the political controversy
5. How would the American political system be different if the power of judicial review
6. How can contemporary judges discern the intentions of the Framers of our 18th-century
Constitution? How important is it that judges be able to discern the intentions of the
7. What would be the effect on the Supreme Court’s decision making if Congress were to
increase the number of justices on the Court to fifteen? Would the Court be rendered
more or less efficient in disposing of cases? Under the terms of the Constitution, could
8. Is the judiciary still the “least dangerous branch” of the federal government? What
9. Generally speaking, should the Supreme Court seek to play a more or less active role
11. Consider the doctrine of standing, which determines who may challenge government
policies and, to some extent, what types of policies may be challenged. Should the
12. Consider the political questions doctrine, which refers to those issues that are likely
13. Consider the upcoming judicial appointment to the United States Supreme Court to
replace Justice John Paul Stevens. Once President Obama has named the nominee,
14. The concept of judicial review was established in Marbury v. Madison. What
functions would the Supreme Court serve in contemporary constitutional law without
the power of judicial review?
MULTIPLE CHOICE QUESTIONS:
to redress injuries they share in common.
a. criminal prosecutions
b. writs of habeas corpus
c. class actions
d. none of the above
settle controversies about disputed legal principles.
a. Superior
b. Common-law
c. Equity
d. Appellate
expansive view of the Court’s jurisdiction and powers than are judges who embrace
judicial restraint.
a. activism
b. stare decisis
c. conservatism
d. natural law
decision is __.
a. one
b. two
c. nine
d. ten
its own agenda.
a. writ of mandamus
b. bill of attainder
c. writ of habeas corpus
d. power of judicial review
a. defendant
b. appellant
c. respondent
d. plaintiff
a. three
b. five
c. seven
d. nine
as its ___________.
a. certiorari
b. mandamus
c. power of judicial review
d. jurisdiction
by Chief Justice __________________.
a. William Howard Taft
b. John Jay
c. Earl Warren
d. John Marshall
by a _______ vote of the U.S. Senate.
a. simple majority
b. two-thirds
c. three-fourths
d. unanimous
____________.
a. federal district courts
b. state criminal courts
c. the Court of Military Justice
d. courts-martial
not formally established until passage of the ________________ of 1789.
a. Supreme Court Act
b. Articles of Confederation
c. Judiciary Act
d. Alien and Sedition Acts
a. the consideration of petitions for rehearing of cases from the previous Term
b. administrative and procedural matters
c. consideration of petitions for certiorari
d. motions to proceed in forma pauperis
court of law to review a policy of government (usually a legislative act) and to
invalidate that policy if it is found to be contrary to constitutional principles.
a. judicial review
b. judicial restraint
c. judicial activism
d. judicial notice
was first implied in ____________________.
a. Hylton v. United States (1796)
b. Marbury v. Madison (1803)
c. Eakin v. Raub (1825)
d. Dred Scott v. Sandford (1857)
a. Marbury v. Madison (1803)
b. Eakin v. Raub (1825)
c. Barron v. Baltimore (1833)
d. Fletcher v. Peck (1810)
of 1820.
a. Judiciary Act
b. Alien and Sedition Acts
c. Missouri Compromise
d. Neutrality Act
a federal law that ___________________________________.
a. imposed a two percent tax on incomes of more than $4,000 a year
b. banned slavery in certain federal territories
c. prohibited industrial monopolies affecting interstate commerce
d. none of the above
judicial restraint?
a. Dred Scott v. Sandford (1857)
b. Lochner v. New York (1905)
c. Pollock v. Farmer’s Loan and Trust Co. (1895)
d. none of the above
government.
a. I
b. II
c. III
d. IV
______________ Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the ___________ shall make.”
a. original; Congress
b. appellate; Congress
c. original; Court
d. appellate; Court
Court from ruling on the constitutionality of _______.
a. the Reconstruction Acts
b. the Missouri Compromise
c. the Sherman Anti-Trust Act
d. the Habeas Corpus Act of 1867
to the ______.
a. Congress
b. Supreme Court
c. Cabinet
d. state legislatures
curtailment of its __________________.
a. power of judicial review
b. original jurisdiction
c. appellate jurisdiction
d. none of the above
_______ criminal and civil cases were filed in the federal district courts from
September 2007 to September 2008.
a. 100,000
b. 200,000
c. 300,000
d. none of the above
________ in 1801.
a. U.S. District Courts
b. U.S. Courts of Appeals
c. U.S. Supreme Courts
d. none of the above.
tribunal by exerting its authority under Article III of the United States Constitution.
a. Court of International Trade
b. Court of Federal Claims
c. Tax Court
d. Court of Appeals for Veterans’ Claims
authority to create these courts is presumed to flow from the legislative article,
rather than from the judicial article.
a. Article I
b. Article II
c. Article III
d. Article IV
Senatorial consent.
a. two years
b. five years
c. ten years
d. life
Adams Administration, Congress deceased the number of Supreme Court justices
to _____.
a. three
b. four
c. five
d. six
law device that persons can use to challenge the legality of arrest or
imprisonment.
a. demurrer to an indictment
b. pretrial motion to dismiss the indictment
c. writ of habeas corpus
d. none of the above
federal spending that would benefit parochial schools in possible violation of the
Establishment of Religion Clause of the First Amendment.
a. Flast v. Cohen (1968)
b. United States v. Richardson (1974)
c. Valley Forge College v. Americans United for Separation of Church and State,
Inc. (1982)
d. none of the above
Richardson, as a federal taxpayer, had “a genuine interest in the use of funds,” he
had not alleged that he was “in danger of suffering any particular concrete injury.”
a. Earl Warren
b. Warren Burger
c. William Rehnquist
d. John Roberts
challenge a regulation of the Interstate Commerce Commission (ICC).
a. Summers v. Earth Island Institute
b. United States v. Students Challenging Regulatory Procedures (SCRAP)
c. Valley Forge College v. Americans United for Separation of Church and State,
Inc.
d. Sierra Club v. Morton
the site of a proposed nuclear power plant to challenge the constitutionality of the
federal Price-Anderson Act, which facilitates construction of nuclear plants by
limiting liability for accidents.
a. Sierra Club v. Morton
b. United States v. Students Challenging Regulatory Procedures (SCRAP)
c. Duke Power v. Carolina Environmental Study Group
d. Summers v. Earth Island Institute
move, with notable exceptions, in a ________ direction.
a. liberal
b. conservative
c. neutral
d. none of the above
Amendment granted an individual, as distinguished from a “collective” right to
bear arms in __________.
a. Marbury v. Madison
b. Ex Parte McCardle
c. District of Columbia v. Heller
d. none of the above
Supreme Court had violated the due process clause of the Fourteenth Amendment
by refusing to recuse himself in the case involving a litigant who contributed over
three million dollars to the Chief Justice’s judicial election campaign.
a. Caperton v. Massey Coal
b. District of Columbia v. Heller
c. Kennedy v. Louisiana
d. Summers v. Earth Island Institute
__________, who was overwhelmingly confirmed by the Senate.
a. David Souter
b. Sandra Day O’Connor
c. Sonia Sotomayor
d. Ruth Bader Ginsburg
living constitution in Griswold v. Connecticut (1965) by stating, “. . . [t]he
Constitution makers knew the need for change and provided for it. Amendments
suggested by the people’s elected representatives can be submitted to the people
or their selected agents for ratification. That method of change was good enough
for our Fathers, and being somewhat old-fashioned I must add it is good enough
for me …”
a. Louis Brandeis
b. Hugo Black
c. Oliver Wendell Holmes, Jr.
d. Lewis F. Powell
judicial power not only by deflecting constitutional questions but by making
narrow rulings when constitutional issues are considered.
a. Louis Brandeis
b. Hugo Black
c. Oliver Wendell Holmes, Jr.
d. none of the above
the 10,000 that are filed each term.
a. 100
b. 200
c. 300
d. 400
Pollock v. Farmer’s Loan and Trust Company (1895) where the Court invalidated
a federal law that imposed a tax on incomes over $4,000 per year.
a. Fourteenth
b. Fifteenth
c. Sixteenth
d. Seventeenth
Court’s decision in Dred Scott.
a. Twelfth
b. Thirteenth
c. Fourteenth
d. Fifteenth
ESSAY QUESTIONS:
1. Explain the origin of judicial review and evaluate the various justifications that
have been proposed for it.
2. Citing particular Supreme Court decisions, both historic and modern, explain the
difference between judicial activism and judicial restraint.
3. Recount the facts, issue and decision in the infamous Dred Scott case. How did
the Court’s decision impact events of the day and the Court itself?
4. Discuss the various aspects of federal court jurisdiction. In particular, discuss the
various levels of the federal court system and whether each level possesses
original and/or appellate jurisdiction.
HYPOTHETICAL PROBLEM (FOR CLASSROOM DISCUSSION OR ESSAY EXAMINATION):
Suppose that Congress in a very close vote gives the President “fast track” authority to
negotiate trade agreements with other countries. Essentially, this means that Congress
cannot propose amendments to any trade agreement; it can only vote yes or no on the
entire agreement as negotiated by the President. After signing the bill, the President
announces his intention to quickly conclude a new trade agreement with Japan and
submit the agreement to Congress for fast track approval. Several members of Congress
from both houses who voted against the legislation decide to go to court to block its
implementation. Would these members have standing to bring this suit? What arguments
would the plaintiffs make to support their claim of standing to sue? Whom would they
name as defendants in the lawsuit? Assuming the plaintiffs have standing, what other
threshold issues might come into play? Assuming the federal district court reaches the
INTRODUCTION OF TOPIC IN LECTURE
How to Introduce the Concept of Constitutional Law to Students:
When studying the Constitution of the United States, it is essential to understand the
evolution of the Constitution from the founding to modern times and the role the United
States Supreme Court plays in our understanding of the Constitution. Constitutional law
has two main components: 1) the institutional dimension that dictates the sources and
limitations of power for each branch of government and 2) civil rights/civil liberties
dimension that involves claims of personal freedom and legal and political equality.
One way to get students to understand the practical implications of constitutional law is
to engage in a discussion regarding the current Supreme Court rather than beginning with
the John Marshall Court. The Marshall Court, while important for many reasons, is
probably not viewed by the students as a Supreme Court that impacts their daily lives in
modern times. In addition, many students will know several, if not all, of the members of
the current Roberts Court. The current members include Chief Justice Roberts, Associate
Justices Alito, Scalia, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, and the recently
confirmed Justice Kagan who replaced Justice Stevens.
QUESTIONS FOR WEBSITE
1. Discuss the structure of the federal court system and how the federal courts have
evolved into the structure we have today.
2. Justices on the Supreme Court throughout its history have utilized several competing
philosophies or theories in interpreting the Constitution. Briefly discuss these competing
theories or philosophies.
3. The United States Supreme Court is the highest court in the land, and according to
Chief Justice John Marshall, it is “emphatically the province and duty of the judicial
department to say what the law is.” However, there are certain circumstances in which a
Supreme Court decision based on the Constitution can be overruled. Discuss these
circumstances.
4. Discuss the various doctrines that limit access to judicial review by the United States
Supreme Court.
5. Discuss the various aspects that have been used to explain/predict judicial behavior.
