Title: 03-01pp.75
1. Justice Story’s opinion for the Court in Martin v. Hunter’s Lessee (1816; Virginia land
inheritance case) is an example of the Marshall Court’s _______.
2. Ex parte McCardle (1869; appeal of a journalist held for trial before a military tribunal)
_______.
3. In Baker v. Carr (1962; Tennessee reapportionment case) the Supreme Court _______.
4. Federal courts are explicitly given the power of judicial review by _______.
5. Which of the following is not one of the “Ashwander Principles” of judicial restraint?
6. Where is the origin of the Supreme Court’s concept of justiciability?
7. The Framers spent more time crafting Article III than they spent on either Article I or Article
II.
8. The main function of the Judiciary Act of 1789 was to _______.
9. The Supreme Court’s refusal to rule on the merits of Judge Walter Nixon’s challenge to his
impeachment trial by the U.S. Senate was based on Court doctrines regarding _______.
10. Benjamin Franklin’s position on the appointment of federal judges was for _______.
11. The main function of the Judiciary Act of 1789 was to _______.
12. Congress often strikes Supreme Court decisions through legislation or by passing
constitutional amendments.
13. Alexander Hamilton viewed the judiciary as _______.
14. In Caperton the Court argued that judges should recuse themselves from cases under what
circumstances?
15. The Separation of Powers _______.
16. Identify one kind of case and one type of litigant that Article III designates as falling under
17. Who has the power to change the Supreme Court’s appellate jurisdiction?
18. In Marbury v. Madison (1803) the Supreme Court for the first time struck down a provision
of federal law because it was in conflict with the U.S Constitution. When did the Court next
strike down a federal law?
19. 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?
20. Explain how the Court’s decision in Hamdan differs from its analysis of its jurisdiction in
McCardle.
21. Give two examples of justiciability standards that a case must meet in order for the Court to
decide it.
22. Identify two issues upon which Congress has tried to eliminate the Supreme Court’s
appellate jurisdiction.
23. Since Flast v. Cohen what two links must taxpayers demonstrate to have standing in Court?
24. Name two ways in which the separation of powers may constrain the decisions made by the
U.S. Supreme Court.
25. In Martin v. Hunter’s Lessee what rationale does the Court use to explain why it has the
power of judicial review over states and state courts?
26. While Marbury v. Madison (1803) firmly established the power of federal courts to exert
judicial review, John Marshall’s ruling did not put an end to controversies surrounding the
practice. Among the most interesting of these debates concerns the allegedly antidemocratic
nature of judicial review: Why should the Supreme Court (full of unelected officials) be able to
strike down laws passed by legislatures (institutions full of elected officials, whose policies
presumably represent the wishes of the people)? Or, worse yet, why is the Court able to strike
down state initiatives enacted by a majority of voters?
These questions took on particular importance during the debate over term limits during the
1990s. Indeed, Justice Thomas’s dissent in U.S. Term Limits v. Thornton (1995) poked fun at the
antidemocratic nature of the majority opinion: “It is ironic that the Court bases today’s decision
on the right of the people to ‘choose whom they please to govern them. . . .’ The majority
defends [this right] by invalidating a provision that won nearly 60% of the votes cast in a direct
election and that carried every congressional district in the State.” How might you respond to
Justice Thomas?
In answering this question, you could consider the following: (1) the justification Marshall
offered in Marbury for introducing judicial review in the first place; (2) the question of whether
or not sufficient checks or constraints exist on judicial power to make the allegedly
antidemocratic nature of judicial review a “moot” point; (3) the argument that the Court never
really makes decisions that Congress, in particular, would find unsatisfactory; and, (4) the more
specific issue of whether—in light of the political circumstances surrounding the case—
Thornton truly was an antidemocratic decision. Your essay ought to consider at least some (if not
most) of these factors. As long as it is well argued and justified (for example, you should cite
specific cases to make your points), however, you can head in whatever direction you deem
appropriate.
Type: E
27. The Supreme Court declared, for itself, the power of judicial review in Marbury v. Madison.
Why did Marshall argue that the Court should have this power? Was he correct? In later cases
during the same era, the Court further expanded its power. How do these cases specifically
expand the power of judicial review? 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 the decisions of state courts? Why or why not? Is it democratic that the Court—made up
of nine unelected officials—has such broad power? Why or why not?
28. 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?
29. The Court is constrained because it cannot hear a case if it is not justiciable. Explain what it
means for a case to be considered justiciable, and cite cases we have read to support your
argument. Finally, is justiciability a constraint on the Court? Why or why not?
30. How does judicial review in the United. States. compare to judicial review in other nations?
Why is the use of judicial review more controversial in the United States than in other nations
whose courts enjoy the same power?