Marbury and McCardle

An interesting student question on the relationship between the Court's decisions in Marbury v. Madison and Ex parte McCardle.

QUESTION: In McCardle, the SCOTUS listened to the legislature because of the exceptions clause and agreed to repeal their jurisdiction of issuing writs of habeus corpus. But in Marbury, the SCOTUS decided that the Judiciary Act giving original jurisdiction for writs of mandamus is unconstitutional, implying that the Judiciary Act falls outside the exceptions clause. I don't remember the SCOTUS explicitly reasoning in Marbury why the Judiciary Act falls outside the exceptions clause. What makes something passed by Congress fall inside (or outside) the exceptions clause?

ANSWER: A couple points in response. First, the Court in Marbury did not hold the entire Judiciary Act to be unconstitutional. It merely held that the provision attempting to confer original jurisdiction on the Supreme Court in all cases where mandamus is the appropriate remedy is unconstitutional (or at least unconstitutional as applied in cases like Marbury, where the controversy does not otherwise meet the criteria for original jurisdiction under Art. III, sec. 2, clause 2).

Second, the Exceptions Clause grants Congress the authority to make "exceptions" to, and "regulations" of, the Supreme Court's appellate jurisdiction. A law purporting to give the Court original jurisdiction in a given class of cases simply could not be an exception to, or a regulation of, the Court's appellate jurisdiction.

Finally, to address your actual question, "What makes something passed by Congress fall inside (or outside) the exceptions clause?" I don't think we have a good answer. McCardle provides a very partial response, but it leaves a great deal undecided. Certainly it must plausibly be a regulation of the Court's appellate jurisdiction. But can it completely cut off any path to the Supreme Court for certain constitutional claims? Can it be done selectively, to produce the "underenforcement" of certain constitutional rights, or to undermine the practical force of certain judicial decisions? These questions remain largely unanswered.

On "procedural injuries" and standing

A number of you raised good questions after class about the nature of procedural injuries and how they relate to standing. Let me try to clarify things a bit (though I'm happy to answer more questions).

First, a "procedural injury" is nothing more fancy than an injury that is tied, in some way, to the government's allegedly unlawful failure to follow a certain, legally required process. One can contrast a procedural injury with a direct harm in the following way. If the government illegally dumped toxic waste on your property, that would be a direct injury. If the government illegally failed to complete the required environmental impact statement before dumping toxic waste on your property, the injury would be "procedural" in the sense that the unlawful action was the failure to follow a certain process, and not the dumping of the toxic waste per se. (Indeed, after following the lawful process, it might be that the government could still dump the waste on your property.)

Second, why is this significant? Well, the basic point is that, if the Court did not relax the standing requirements to some extent for these so-called "procedural injuries," plaintiffs might lack standing to challenge a wide range of governmental action, despite being clearly affected by it. That is, in any case in which the allegedly unlawful conduct was the failure to follow a certain process--e.g., to initiate a rulemaking to consider whether carbon dioxide is a pollutant under the Clean Air Act, or to evaluate student applications without regard to race--the plaintiff would still have to show that, had the government followed the lawful process, the result would have been different. This is often quite difficult, if not impossible. How could Barbara Grutter, for instance, really have demonstrated that she would have been admitted to the Michigan Law School had the school not considered her race in evaluating her application?

Plaintiffs would thus lack standing to challenge all sorts of unlawful actions by the government. It is therefore significant that the Court has said that this is not necessary--that plaintiffs have standing when the procedural injury (the failure to follow a legally mandated process) is connected to an underlying injury in fact (denial of a subcontract, or loss of coastline, or whatever). So long as following the lawful procedure would make it more likely that the plaintiff would obtain the ultimate benefit (or avoid the ultimate harm), then the plaintiff has an injury in fact.

Third, it is worth reiterating that a procedural injury standing alone will be insufficient for purposes of Article III. It is not enough to assert that the government simply failed to follow the law. Such an "injury" is too abstract and widely shared. Rather, the alleged procedural injury must be connected to an underlying injury in fact that is both (a) concrete and particular, and (b) actual or imminent. This is why the procedural injury in Lujan was insufficient (it was not sufficiently imminent), but it was enough in Massachusetts v. EPA (because if the EPA did initiate rulemaking proceedings, it would be more likely that it would take steps to regulate CO2, which would in turn affect the state's coastal property).

The Obama administration takes action in Al-Marri

You may recall that, on the first day of class, we discussed the case of Al-Marri v. Spagone, a case on which the Supreme Court has granted certiorari but has yet to hear oral arguments. At issue is a very important question in the government's prosecution of the "war on terrorism" to this point: whether the President can indefinitely detain a lawful United States resident on the grounds that the detainee constitutes an "enemy combatant." The case has been litigated to this point by the Bush administration. But there is a new sheriff in town, so to speak, and there has been speculation that the federal government would shift its position. Today, President Obama announced that the government will seek a delay in the filing of its brief at the Court (currently due February 20), and he has ordered the Justice Department to re-examine its legal position. You can find the President's announcement here.

Constitutional crisis averted!

For those of you concerned that the bungling of "faithfully" had left our nation without a constitutionally legitimate president, please rest assured. The world is safe again for democracy!

As just reported by the New York Times, Chief Justice Roberts and President (or quasi-President, or whatever) Obama got together in the Map Room of the White House tonight and went through the whole thing again. No modifiers were misplaced, and Mr. Obama is now unquestionably the President of the United States of America.

Phew!

Schedule for symposium on the Roberts Court

Here is an approximate schedule of the events for Friday's Law Review symposium:

9:00 Welcoming remarks

9:15 to 10:45 Panel 1: Robin Conrad, Brian Wolfman, and Sri Srinivasan (with me as the moderator).

10:45 to 12:15 Panel 2: David Franklin, Mitch Pickerill, and Tracey George as moderator.

12:15 to 1:45 Lunch

1:45 to 3:15 Panel 3: Pam Karlan, Jonathan Adler, Vik Amar, and Terri Peretti as moderator.

3:15-3:30 Break

3:30 Keynote address by Jeffrey Rosen.

Approximately 4:20 Reception

Some more on Marbury's (arguable) genius

I just wanted to add one last bit on Marbury, an overall sense of its political and constitutional significance. In February 1803, there was no practical way that the Supreme Court could have issued an order commanding the Jefferson administration to deliver the commission to Marbury. The order would have been ignored, exposing the Court as powerless. At the same time, a decision that simply blessed all of the Jefferson administration's actions as legal would likewise have showed the Court to be meek, willing to sacrifice its sincere views in the face of stronger political power. What Marshall crafted in his Marbury opinion is thus rather staggering in its political genious. Marshall managed, at once, (1) to condemn the Jefferson administration's actions as illegal; (2) to assert the power of the Supreme Court to declare acts of Congress, and also the President, unconstitutional; and (3) in the process, to render a judgment that technically favored the Jefferson administration, thus preventing the Republicans from having any means of formally disobeying the opinion. Marshall asserted the power of judicial review for the Court, but then used it to invalidate a statute purporting to give the Court more power (in the form of expanded jurisdiction). As Robert McCloskey wrote, "[t]he decision is a masterwork of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking another." (The American Supreme Court (1960)). In the process, it lays the foundation for a cornerstone of our constitutional system, the means by which the judiciary shall be the ongoing guardian of our constitutional commitments. It is, in many respects, the greatest case in our constitutional history.

Symposium on the Roberts Court January 23

I wanted to alert everyone to an upcoming event on campus next Friday, January 23. The Santa Clara Law Review will be hosting its annual symposium, and the topic this year concerns business interests and the Roberts Court. We have a number of nationally prominent speakers coming to the event, including Jeffrey Rosen (who writes frequently for the New Republic, the Atlantic Monthly, and the New York Times Magazine) and Pam Karlan (of Stanford Law School). We will also some influential Supreme Court practitioners, including Robin Conrad (of the United States Chamber of Commerce) and Brian Wolfman (of Public Citizen). A complete list of the speakers can be found here.

I strongly encourage you to attend as much of the event as you can. Attendance is free for students, and you can register here.

Abbreviated office hours today

I'm unsure whether anyone is planning to visit today (only one day into the semester and conflicting with c-span's gavel-to-gavel coverage of the Hillary Clinton confirmation hearings), but I will only be in my office from 1:30 to 2:30 today. A meeting was called last night that I have to attend, and I need to get home a little early to close a child care gap. I apologize for any inconvenience. Thanks.

First class is posted on iTunes

A podcast of today's class is now available on iTunes. You have to search around a bit to find it. Go to iTunesU, and then search for Santa Clara School of Law. The class appears under the "Lectures and Classes" tab. I hope to post each class shortly after its conclusion over the course of the semester, but I cannot make any promises. Thanks.

More documents now available on ClaraNet

I have just posted a few additional course documents on the ClaraNet course site:

1. A slightly revised course syllabus (I will hand out a hard copy in Monday's class);

2. A tentative assignment schedule for the first six weeks of the semester; and

3. The first three problems (which are referenced in the assignment schedule).

By the end of the week, I should have my past exams posted as well. And the supplemental readings are already there.

All for now.

Welcome!

For those of you checking in for the first time, welcome. I look forward to the start of our class next Monday.

As I mentioned in my e-mail, the course syllabus is posted to the ClaraNet course page, as are the supplemental readings for the semester. In the coming days, I will also post to ClaraNet (1) the assignment schedule for the first 6 weeks of the semester, (2) some problems for class discussion, and (3) some of my past exams.

In the meantime, as I mentioned in my e-mail, please do not hesitate to contact me with any questions about the course.

Thanks, and I look forward to seeing you soon.