Introduction1. The United States Supreme Court has become such an important branch be it can declare acts of legislation unconstitutional (called judicial review), thereby voiding them.
i. In Britain, the Parliament is supreme, and no court can overturn laws.
2. Judicial review is no longer really controversial, but the two ways of doing it are:
i. Using a strict-constructionist approach, a judge uses only what is written in the Constitution in judging if a law is right or not.
ii. Using an activist approach, a judge relies on his own opinions and philosophies in addition to what is written in the Constitution.
iii. An activist judge is not necessarily liberal and a strict-constructionist judge is not necessarily conservative; liberals can be strict-constructionists and vice versa.
iv. 50 yrs ago, activists tended to be conservative and vice versa, but today, the opposite is true.
II. The Development of Courts
1. The Founders probably wanted the Supreme Court to have some sort of judicial review, but they never expected the Court to grow as powerful as it is today.
i. The rise of judicial activism occurred when judges questioned the traditional view of simply finding and applying existing law (instead of doing what the judge felt right) and acted on that.
2. In Federalist No. 78, Alexander Hamilton wrote that the Court was “least dangerous” to political rights and clearly stated that the Supreme Court was intended to decide the Constitutionality of a law, but that such a power would confine the legislature, not strengthen the courts.
3. The Court has been shaped by the major eras of the country (1787-1865: establishing country’s legitimacy; 1865-1937: relationship b/t gov’t and econ.; 1937-present: personal liberty issues).
4. National law is supreme and can override state law, but this was not established until two cases, Marbury v. Madison and McCulloch v. Maryland occurred.
i. In 1803, William Marbury had been one of the midnight judges who had not received his judgeships, and when he filed suit for it, Chief Justice John Marshall feared that if he ordered James Madison to deliver the judgeship, he’d refuse, and there’d be a Constitutional crisis, so he said that the Judiciary Act of 1789 that had indirectly allowed Marbury to be able to get a judgeship was unconstitutional and was void; thus, he solved the problem AND strengthened the court’s power.
ii. When the state of Maryland tried to tax the Bank of the United States, Marshall ruled (in 1819) that it could not do that, since the federal gov’t was above the state gov’t.
5. In 1816, the Supreme Court rejected the Virginia courts’ claims that it couldn’t review state decisions, saying that it indeed could do that because it was supreme above all.
6. The Supreme Court also established the power to regulate interstate commerce (though the problem later turned into what exactly was interstate commerce and what wasn’t), all under John Marshall.
7. One of the most destructive decisions from the Supreme Court, however, came when Chief Justice Roger Taney rejected Dred Scott’s claim that, since he had been taken to a free state by his master, he was thus free by saying that black slaves weren’t citizens and couldn’t become so and that the Missouri Compromise was unconstitutional.
8. During the years when the Court was trying to decide how gov’t should treat the economy, it showed a strong through not unbending attachment to private property.
i. After the Court adopted the view of the 14th Amendment, which stated that no state shall “deprive any person of life, liberty, or property, without due process of law,” and let companies and corporations be “persons” as well, it received numerous cases and began ruling on the constitutionality of every gov’t action towards the economy.
ii. It often upheld the use of injunctions to prevent labor strikes, struck down the federal income law, sharply limited the antitrust law, restricted the railroad rates setting powers of the Interstate Commerce Commission, prohibited the fed. gov’t from banning child labor, and other things, but it also did allow some regulatory measures to stay.
iii. At one point, the 14th and 15th Amendments were so narrowly construed that they hurt blacks rather than helped them!
9. The Supreme Court changed its private property attachments in 1937, after the Court-Packing Controversy passed and Justice Owen Roberts began voting the opposite way on new bills.
i. President Franklin Roosevelt had tried to pass a bill that would let him add a new justice for every justice already over the age of 70 who didn’t retire, so that he would eventually have eight out of 15 justices that supported him, but that failed.
ii. With the arrival of Earl Warren as chief justice, the Court took on its most activist period yet, passing many decisions that protected the rights and liberties of all citizens—white or colored.
10. Recently, the Court has begun to make decisions that have allowed states to maintain some power, so that federal laws do not always naturally overrule state laws.
i. It declared the Gun-Free Schools Zone Act unconstitutional because Congress “didn’t have the right to regulate whether a gun was carried near a school or not.”
