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The Judicial BranchThe Supreme Court's only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society.Irving R. Kaufman

The Judicial BranchAt 375 words, Article III provides the shortest description of any of the three branches of government. It reads, in part:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Oddly, the Courts most important powerthat of judicial reviewis never explicitly mentioned in the Constitution.

The Power of Judicial ReviewAlexander Hamiltons essay, Federalist #78, makes it clear that the framers intended the Courts to have the power of judicial review. He writes that the interpretation of the laws is the proper and peculiar province of the courts.Just as important, however, is an early Supreme Court case titled Marbury v. Madison (1803), which asserted and solidified that power.If this power is not found in the Constitution, where does it come from? There are two early sources:

The Power of Judicial ReviewFederalist #78, written by HamiltonMarbury v. Madison (1803) If this power is not found in the Constitution, where does it come from? There are two early sources:

The interpretation of the laws is the proper and peculiar province of the courts. A Constitution is, in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Alexander Hamilton, Federalist #78

Election of 1800John AdamsThomas JeffersonWilliam MarburyJames MadisonJustice of the Peace (D.C.)X

Election of 1800Thomas JeffersonWilliam Marburywrit of mandamus

This is the very essence of judicial dutyIt is emphatically the duty of the Judicial Department to say what the law is, wrote Chief Justice John Marshall in Marbury v. Madison (1803). Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.John Marshall

Timeline of Major Supreme Court Cases1803: Marbury v. Madison1819: McCulloch v. Maryland1857: Dred Scott v. Sandford1896: Plessy v. Ferguson1954: Brown v. Board of Education1965: Griswold v. Connecticut1973: Roe v. Wade2000: Bush v. Gore2010: Citizens United v. FEC2012: National Federation of Independent Business et al v. Sebelius Secretary of Health and Human Services 2013: Shelby County vs. Holder 2014: McCutcheon v. FEC

Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures...To constitute Tribunals inferior to the supreme Court...To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;To provide and maintain a Navy;To make Rules for the Government and Regulation of the land and naval Forces;To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions...;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof...

ARTICLE 1

Dred Scott vs. Sandford (1857)

In the Dred Scott case (1857), Chief Justice Roger Brooke Taney (himself a slave owner) asserted that no black person in the United States enjoyed any rights which the white man was bound to respect. Furthermore, he argued the Missouri Compromise limiting the spread of slavery was unconstitutional because propertyin this case, a slavecould not be taken from a person without due process of law. The decision helped to incite Civil War.

Separate but Equal

Separate but EqualOn June 7, 1892, a 30-year-old colored shoemaker named Homer Plessy was jailed for sitting in the White car of the East Louisiana Railroad. Plessy was only one-eighth black (light skinned enough to pass for white), but under Louisiana law, he was considered black and therefore required to sit in the Colored car.

In Plessy v. Ferguson (1896), the U.S. Supreme Court argued that the fact that state law does not conflict with the Thirteenth Amendment, which abolished slavery...is too clear for argument...A statute which implies merely a legal distinction between the white and colored racesa distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by colorhas no tendency to destroy the legal equality of the two races... The object of the [Fourteenth Amendment] was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.

The Plessy decision set the precedent that separate facilities for blacks and whites were constitutional as long as they were equal. The separate but equal doctrine was quickly extended to cover many areas of public life, such as restaurants, theaters, restrooms, and public schools.

Brown v. Board of Education of Topeka, Kansas (1954)In a unanimous decision the Court overturned the "separate but equal" doctrine of Plessy v. Ferguson (1896) and ruled that separate public schools for black and white students were inherently unequal, violating the equal protection guarantee of the 14th Amendment. Linda Brown

Brown v. Board of Education of Topeka, Kansas (1954)Linda Brown

"Segregation now, segregation tomorrow, segregation forever.George Wallace, Governor of Alabama

Griswold v. Connecticut (1965)Estelle Griswold, in front of the New Haven, Connecticut offices of Planned Parenthood.

Roe v. Wade (1973)1st trimester: The state has no compelling interest in protecting the health of the woman because abortion in early pregnancy, although not without its risks, is relatively safe. 2nd trimester: Since the risk to the woman increases as her pregnancy continues, the state, in promoting its interest in protecting the health of the woman may regulate the abortion procedure in ways that are reasonably related to maternal health. 3rd trimester: Since the fetus has the capability of meaningful life outside the pregnant womans womb at about 28 weeks, but as early as 24 weeks, the states interest in protecting potential life becomes compelling at this point of viability.

Josie Duggar, born to reality TV stars, Jim Bob and Michelle Duggar, was born at 25 weeks. She weighed just 1 lb., 6 oz.Today, because of advances in medical science, some consider Roe v. Wades trimester framework to be unsound and unworkable.

Bush v. Gore (2000)

People, for reasons of their own, often fail to do things that would be good for them or good for society.

Chief Justice John Roberts

Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures...To constitute Tribunals inferior to the supreme Court...To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;To provide and maintain a Navy;To make Rules for the Government and Regulation of the land and naval Forces;To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions...;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof...

ARTICLE 1

State Voting Laws before Shelby County v. HolderThe darker the color, the more restrictive the voting laws.

Shelby County v. HolderOur country has changed. While any racial discrimination in voting is too much, Congress much ensure that the legislation it passes to remedy that problem speaks to current conditions.

Chief Justice John Roberts

State Voting Laws after Shelby County v. HolderThe darker the color, the more restrictive the voting laws.

The notion that because the Voting Rights Act had been so tremendously effective we had to stop it didnt make any sense to me. And one really could have predicted what was going to happen.

[Discarding the law is] like throwing away your umbrella in a rainstorm because you are not getting wet.

Justice Ruth Bader Ginsberg

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Alexander Hamilton, Federalist #78

Checks and Balances on the Courts PowerAppointment and Removal. Both Congress and the President can, over time, alter the composition of the court through the kinds of appointments they nominate and confirm. Federal judges can also be impeached for their behavior.Constitutional Amendment. A Supreme Court interpretation of the Constitution can be overruled by amending the Constitution. But this may be the weakest check because it is difficult to do. It was done only twice before, with the 11th Amendment (a citizen of one state cannot sue another state without the states consent) and the 16th (making income taxes constitutional).Statutory Revision. A Supreme Court interpretation of a statute can be modified by revising the statute in question.Non-Implementation. Finally, one restraint on the Courts power exists because of the very nature of the courts. A judge has no police force or army. Decisions that are made can sometimes be resisted or ignored. It may be unlikely, but not unheard of.Public Opinion. ??????

Elena Kagan (Obama 2010) Antonin Scalia (Reagan 1986) Anthony Kennedy (Reagan 1988) Sonia Sotomayor (Obama 2009) Clarence Thomas (G.H.W. Bush 1991) Ruth Bader Ginsburg (Clinton 1993) Stephen Breyer (Clinton 1994) John Roberts (G.W. Bush 2005)Samuel Alito (G.W. Bush 2006) The Least Dangerous Branch?

Checks and Balances on the Courts PowerAppointment and RemovalConstitutional AmendmentStatutory RevisionNon-Implementation Public opinion (?)

As our society has changed and evolved, so too has the publics opinion on gay marriage - and so has mine.

Sen. Tom Carper (D-Delaware) The Debate over Gay Marriage

Failed Supreme Court NomineesOf the 156 nominations that presidents have made for the Supreme Court since 1789, thirty-five have failed for one reason or another, including Harriet Miers, who withdrew her name from consideration in October 2005.Most failed nominations never make it to the Senate floor. Just eleven nominees were rejected by the full Senate, most recently Robert Bork in 1987. Source: http://www.usatoday.com/news/washington/judicial/2005-10-27-scotusflops_x.htm

GinsburgKaganBreyerSotomayorKennedyAlitoRobertsScaliaThomasLiberalConservative

Judge Sonia Sotomayor faces off against the Senate Judiciary Committee this week in a bid to become the 111th justice of the U.S. Supreme Court. The public discussion of her suitability for this job thus far suggests that the upcoming hearing will be a carnival of unanswerable questions ("Judge Sotomayor, can you prove to this committee that you are not a reverse racist?") and her nonresponsive answers ("Senator, I must decline to answer that question, as it may come before me in some future case").

Senators more accustomed to making speeches than asking questions will spill thousands of words on simple inquiries. And a judge more accustomed to asking questions than making speeches will use well-rehearsed dodges to avoid answering. The judicial-confirmation process is the political equivalent of Dancing With the Stars, in that the senators perform complex leaps and turns while admiring themselves in the mirror, while the nominee shuffles her feet and calls it a foxtrot

There is little doubt that Sotomayor will be handily confirmed. Her judicial record is unremarkable, and her life story is exceptional. And this is the paradox of the Confirmation Foxtrot: we learn too much that is trivial and not enough that is important.

Dahlia Lithwick, Newsweek, July 20, 2009

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