Some questions and answers, on judicial review and McCardle

QUESTION: On Lincoln versus Faubus: If the analysis is that there is very little difference between the president's and the governor's power to openly proceed as they wished notwithstanding the holding of the SCOTUS, what then, is the power of the SCOTUS?

 

ANSWER: Good question. Isn't the lesson, to some degree, that it depends on the degree to which other political figures will go along with (and enforce) the Court's decisions? Lincoln had a much broader and more powerful political coalition behind his position. Faubus was representing a vocal but geographically small minority, which was ultimately overwhelmed by the prevailing national view on the morality of racial segregation.

 

QUESTION: If the argument is that because both officials swore in order to come into office that they will uphold the Constitution of the United States, and that oath gave them the power to interpret the constitution, what then prevents, as you pointed out, a clerk of a federal judge, when he or she swore to uphold the Constitution of the United States, from openly defying the SCOTUS's decision when he or she sincerely believe the decision is against the principles of the Constitution?

 

ANSWER: Another good question. First, on a very practical level, that clerk might well be fired if her boss disagrees. Second, there is now a very strong general sense among Americans that it just does not work very well if we do not defer to the Supreme Court in its interpretations of the Constitution. That is, the Nation might well grind to a halt if everyone was always litigating their own understanding of the Constitution. Perhaps the larger point is that it is really norms and customs, rather than the strict dictates of law, that prevents this from happening.

 

QUESTION: While freedom of speech guarantees every individual citizen the right to advocate at the top of their lungs in which her fellows advocate at the top of their lungs in opposition, fundamentally there is a line between advocacy, the right to speech, and rebellion, the acts in defiance. Here, and in other cases, Lincon and Faubus not only advocated the unconstitutionality of SCOTUS's decisions, but that they performed in opposition. Are they, the president and the governor, then, by their actions, demonstrating that they are above the law? Or even worse, that they are the law? Who decides?

 

ANSWER: I think you could make decent arguments that neither were acting "unlawfully" (though Lincoln plainly was when he defied the court in the habeas case, In re Merryman). But there is a difference between the letter and the spirit of the law. And you could say that both acted contrary to its broader spirit -- Lincoln in a noble cause, Faubus in a rather pathetic one.

 

QUESTION: In a system of check and balances, where the Congress, the President, and the Court play a role in this dance of justice for the country, if each branch disagrees with the other on the interpretation of fundamental, constitutional matters, wouldn't we arrive at a system where everyone would be shouting to the rain on their issues, claiming that their perspectives are constitutional and that the perspectives of their opponents are not.

 

ANSWER: Two responses. First, again, the Nation will not tolerate too much of this, and generally has disciplined political leaders that they believed had not shown adequate respect for the rule of law. Second, everyone shouting to the rain about fundamental issues . . . is that really so different from the system we have now?

 

QUESTION: How could resolution arrive from such a system? Wouldn't the natural foreseeable path for such a system be chaos and disorder?

 

ANSWER: Perhaps, and I think that is precisely what has operated as the ultimate check. The People would not tolerate it. And that means that it generally not in political officials' interests to act in this fashion. But if it were -- witness the unhappy Terry Shiavo affair -- things can get a little messy. As I think Justice Breyer explained well in his essay, these things turn more on habits of mind and cultural and political norms of a people and a society. We just don't really tolerate this sort of behavior in our elected officials, and thus they are much less apt to challenge the Court.

 

QUESTION: Obviously, we have not yet reached that state in the US, so the begging question again, is, who has the ultimate power to prevent such an undesirable outcome?

 

ANSWER: There is no clear answer to this. It depends. It is sort of up to each generation to decide. In our system, to some degree, it is up for grabs. Different periods of history have seen different allocations of this authority. I think it is fair to say, though, that over time we have gradually moved closer and closer to a system of judicial supremacy.

QUESTION: At least twice in history, the President has repealed Supreme Court's writ of habeas corpus, and at least once, the President has defied the SCOTUS holding that the president lacks the power to repeal SCOTUS's writ of habeas corpus. Under Article III, section 2, clause 1 of the Constitution, it states "the judicial power shall extend to all cases...arising under the Constitution," and then clause 2 states, "the Supreme Court shall have appellate jurisdiction...under such regulations as the congress shall make."

 

ANSWER: But that is not mandatory. That provision is setting out the full scope of the subject matter jurisdiction that Congress is permitted to invest in the federal courts. Congress has never--ever--given the federal courts the full scope of the jurisdiction spelled out in Art. III, sec. 2, clause 1. 

 

QUESTION: How could these paragraphs reconcile in cases where they contradict? For example, imagine a situation where Congress has taken away SCOTUS's entire power for appellate review, and yet, dispute arising under the Constitution review occurs. Under Article III, section 1, clause 1, SCOTUS would have the power to review it, not just through original jurisdiction but also by appellate jurisdiction, as indicated by the language "all cases." However, under Article III, section 2, clause 2 would clearly state SCOTUS lacks the jurisdiction for review. Again, how does one reconcile situations such as this?

 

ANSWER: I think there are a few different questions here. First, with respect to the lower federal courts, this has always been the case. That is, there have always been cases to which "the judicial power shall extend" under Article III, but for which Congress has not granted the lower federal courts jurisdiction. We will talk about this Wednesday (1/26), but this has always been assumed to be part of the original compromise, to leave the existence and jurisdiction of lower federal courts to the discretion of Congress. As to the Supreme Court, I think it is a harder question. What if Congress completely cut off any way to get to the Supreme Court on a constitutional claim? I think the law is unclear as to whether Congress could do this. McCardle does not answer it. Certainly, Congress can give the Supreme Court discretion as to whether to hear such a claim. Thus, there is no individual "right" to have your federal claim considered on the merits by the Supreme Court. But what if Congress forbid it? I think the answer remains unclear.

 

QUESTION: Who decides?

 

ANSWER: The Court, I think, in interpreting the scope of Article III. And if the People disagree with the Court, then we get back to all the questions raised above.

 

QUESTION: Further, if Congress can take away SCOTUS's fundamental appellate jurisdiction such as the writ of habeas corpus, what is the limit of Congress's power?

 

ANSWER: Again, I think this is unclear. The check may ultimately be more political than legal.

 

QUESTION: How much of SCOTUS's responsibilities can the Congress chip away through legislature such that the framework provided by Article III, section 1--"the judicial power of the United States, shall be vested in one Supreme Court"--would still hold? How much of SCOTUS's responsibility can be disposed of before it cease to have the judicial power of the United States?

 

ANSWER: Very good question. It is not just an Article III question, but one that invokes basic separation of powers principles. Again, I do not think any authoritative sources of law give us a clear answer.

 

QUESTION: Finally, On Ex parte McCardle: I still struggle with the interpretation of the last paragraph. My feeble attempt at deciphering this paragraph is that Chief Justice Chase is trying to articulate, while Congress has the power to regulate the appellate jurisdiction of the Supreme Court, any regulation has only post hoc effect, and any judgment prior to the enactment of the repeal act would still be effective. From the discussion in class, this does not seem to be the significance of that last paragraph, and if I am not mistaken, you suggested that SCOTUS still had jurisdiction on some levels. What is that level? How would you have interpreted the last paragraph?

 

ANSWER: As to the narrower question, yes, litigants like McCardle could have gotten to the Court with their habeas claims through a different route, under the Judiciary Act of 1789 using, in conjunction with the writ of habeas corpus, a writ of certiorari. As to your broader question, about how I would interpret that last paragraph, here is my best stab. Chase is basically saying this: "Look, we are not deciding whether this Repeal Act would be constitutional if it completely removed the Supreme Court's appellate jurisdiction in all cases in which the litigant was seeking a writ of habeas corpus. There is another statute that provides for that jurisdiction, on which prior litigants have relied, and which we have used to review habeas petitions on appeal. Now, we are not saying that the Repeal Act would necessarily be unconstitutional if it had completely cut off all appellate routes to the Court. Rather, we want to make clear that we are not deciding this issue one way or  the other today. We reserve it for another day."

Cohens v. Virginia and the Supreme Court's original jurisdiction

Madhuri asked a great question yesterday concerning Cohens and Article III's allocation of the Supreme Court's original and appellate jurisdiction. In essence her question was this: if Marbury held that Article III defines what must be in the Court's original and appellate jurisdiction, and Virginia was a party in Cohens, and Article III states that the Court shall have original jurisdiction "In all Cases . . . in which a State shall be a Party," what gives? How can these fit together?

 

They can't. So the Court (and Chief Justice Marshall himself, the author of both) effectively overruled this part of Marbury in Cohens. He held (in a portion of the opinion not included in the casebook) that, although Congress cannot expand the original jurisdiction of the Supreme Court beyond those cases specified in Article III (which was the precise problem in Marbury), Congress can permit those same cases to come to the Court on appeal (in Cohens, from a state court).

 

Why? The basic problem is that something had to give. A state is always a party in a criminal prosecution initiated by a state. (At that time, as now, more than 90%, perhaps 99%, of criminal prosecutions were initiated by states, not the federal government.) By necessity, a criminal case initiated by a state against a defendant originates in a state trial court. Thus, such a case simply could never reach the Supreme Court of the United States if the Supreme Court could only exercise original jurisdiction over cases in which a state was a party. In other words, that reading of Article III would render every single criminal prosecution initiated by a state immune from federal judicial review, no matter the federal constitutional or statutory problems it raised.

 

(Perhaps such convictions could be challenged by seeking a writ of habeas corpus in federal court. But that is an indirect challenge to a conviction, not a direct appeal. Moreover, federal habeas review of state criminal convictions did not exist until the 20th century.)

 

Faced with this structural implication, the Court held that Congress could authorize the Court to exercise appellate jurisdiction in cases that Article III specifies as falling within the Court's original jurisdiction.

 

As the Judiciary Act currently reads, there is only one set of cases in which the Supreme Court's jurisdiction is original and exclusive: suits between two states. The others may be brought as an original matter, but need not be. The Court can review them on appeal as well, and it basically always does.