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CHAPTER TWO: THE JUDICIARY: INSTITUTIONAL POWERS AND
CONSTRAINTS
Type: E
1. With respect to Marbury v. Madison (1803), (a) did Marbury have the right to the commission
he sought? (b) was a writ of mandamus a proper remedy for Marbury to seek? (c) did Marbury
take his case to the proper court?
2. Why is the invocation of judicial review so controversial?
3. How has judicial review influenced Supreme Courts outside of the U.S.?
4. How does the power of judicial review in the U.S. compare to the experiences of other
nations? Provide three examples.
5. Has judicial review made the Court a more powerful institution? Why or why not?
6. Is jurisdiction a constraint on the Court? Why or why not?
7. Why did the framers insert the exceptions clause into the Constitution?
8. Give two examples of justiciability standards that a case must meet in order for the Court to
decide it.
9. Should the Court issue advisory opinions as some state courts do? Why or why not?
10. Identify two issues upon which Congress has tried to eliminate the Supreme Court’s
appellate jurisdiction.
11. After Flast v. Cohen what two links must taxpayers demonstrate to have standing in Court?
12. Give two examples of advisory opinions and then explain why the Court will not hand down
such opinions.
13. If the justices are not supposed to hear non-justiciable cases, what explains why they would
do so?
14. What is the difference between Defunis and Roe? Specifically, why would did the Court
decide one and not the other?
15. What are the three criteria that help the Court determine whether a party has standing to sue?
Give an example of a case that meets these criteria.
Type: E
16. Give three ways in which the separation of powers constrains the Supreme Court.
17. Ex parte McCardle (1869 appeal of a journalist held for trial before a military tribunal):
18. Marbury v. Madison:
19. How do you know if a lawsuit is collusive?
20. Why did the Court rule against Marbury in Marbury v. Madison:
21. When it comes to overturning federal laws, the Supreme Court:
22. The Supreme Court declared, for itself, the power of judicial review in Marbury versus
Madison. Why does Marshall argue that the Court should have this power? Is he correct? In later
cases during the same era, the Court further expanded its power. How do these cases specifically
expand this power? Discuss the position of the Virginia Supreme Court and the U.S. Supreme
Court’s response in Martin v. Hunter’s Lessee. Should the Court be allowed to overturn
decisions of state courts? Why or why not? Is it democratic that the court – made up of nine non-
elected officials – should have such broad power? Why or why not?
23. Despite the Court’s seemingly unlimited power of judicial review there are limits to this
power. How does the Court’s jurisdiction constrain its power? The Court is also constrained
because it cannot hear a case if it is not justiciable. Explain when a case is justiciable, and cite
cases we have read to support your argument. Finally, is justiciability a constraint on the Court?
Why or why not?
***
Marbury v. Madison (1803)
Political Context:
A. The Election of 1800 was controversial – it was the first presidential election in the U.S.
to be thrown to the House. The federalists lost control of both Congress and the White
House. As a result, before January 1801 the federalists attempted to keep control of the
judiciary. One measure outgoing president Adams took was to appoint John Marshall – a
staunch federalist – to be Chief Justice of the United States.
B. The new Jeffersonian administration was the antithesis of the federalist Adams
administration, and wanted to give.
C. During this time the Supreme Court was a trivial part of the federal government. It had
little prestige and little authority. In fact, as the text point out, John Jay quit being chief
justice so that he could become the governor of New York.
D. Given the controversial midnight appointments – especially that of William Marbury –
and the President Jefferson had Congress abolish the Court’s summer session of 1802.
E. The Jefferson administration considered having Marshall and Justice Samuel Chase
impeached because of their federalist views.
Relevant Case Facts:
After the election of 1800 President Adams and the federalist controlled Congress created six
new circuit courts and several new district courts. They then tried to staff these courts during the
last six months of Adams’ term. As part of the Organic Act of 1801 Adams was also allowed to
appoint 42 justices of the peace in the District of Columbia. Several of the commissions were not
delivered by Secretary of State John Marshall – including the appointment for William Marbury.
When Jefferson came into office he told James Madison (the new secretary of state) not to
deliver these commissions. As a result Marbury appealed directly to the U.S. Supreme Court,
asking the justices for a writ of mandamus ordering Madison to deliver the commissions. The
lawsuit was based on Section 13 of the Judiciary Act of 1789 that gave the Court the power to
issue such writs.
Legal Question: Does the Supreme Court have the power to issue a writ of mandamus in order
for an appointed judge to secure his commission?
Legal Reasoning:
***
Ex Parte McCardle (1869) (8-0)
Relevant Case Facts: After the Civil War the Republican Congress instituted Reconstruction
Laws on the South. Specifically, it placed the South under military rule. McCardle wrote
editorials opposing these measures, and urged resistance against them. He was arrested for
publishing “incendiary and libelous articles” and was held for trial before a military tribunal.
McCardle argued that he was a citizen and not a member of militia and was therefore being
illegally held. He filed a petition for a writ of habeas corpus as allowed under Congressional Act
of 1867. When this effort failed, he turned to the Supreme Court for help. Before the Court could
hear the case, Congress repealed the Habeas Corpus Act, removing the Supreme Court’s
authority to hear such cases.
Legal Question: Can the Supreme Court hear a petition for a write of habeas corpus when
Congress has taken away such authority?
Reasoning:
