The Judicial Branch

The Judicial Branch “The 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 Branch At 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 Court’s most important power—that of judicialreview—is never explicitly mentioned in the Constitution.

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

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 1800 X Thomas Jefferson John Adams Justice of the Peace (D.C.) William Marbury James Madison

Election of 1800 Thomas Jefferson William Marbury “writ of mandamus”

This is the very essence of judicial duty… “It 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 Cases • 1803: Marbury v. Madison • 1819: McCulloch v. Maryland • 1857: Dred Scott v. Sandford • 1896: Plessy v. Ferguson • 1954: Brown v. Board of Education • 1965: Griswold v. Connecticut • 1973: Roe v. Wade • 2000: Bush v. Gore • 2010: Citizens United v. FEC • 2012: National Federation of Independent Business et al v. Sebelius Secretary of Health and Human Services • 2013: Shelby County vs. Holder • 2014: McCutcheon v. FEC

ARTICLE 1 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...

Dred Scott vs. Sandford (1857)

Separate but Equal…

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 woman’s womb at “about 28 weeks, but as early as 24 weeks,” the state’s interest in protecting potential life becomes “compelling” at this point of “viability.”

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

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

ARTICLE 1 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...

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

Shelby County v. Holder “Our 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. Holder The 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 didn’t 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

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

Checks and Balances on the Court’s Power • Appointment and Removal • Constitutional Amendment • Statutory Revision • Non-Implementation • Public opinion (?)

Ginsburg Kagan Breyer Sotomayor Kennedy Alito Roberts Scalia Thomas Liberal Conservative

The Judicial Branch