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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 Courts most important powerthat of


judicial reviewis 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

John Adams

Justice of the
Peace (D.C.)

X
William

Thomas Jefferson

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:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
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)

Timeline of Major Supreme


Court Cases
1803:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
National Federation of Independent Business et al v. Sebelius
Secretary of Health and Human Services
2013: Shelby County vs. Holder
2014: McCutcheon v. FEC

Separate
but Equal

Timeline of Major Supreme


Court Cases
1803:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
National Federation of Independent Business et al v. Sebelius
Secretary of Health and Human Services
2013: Shelby County vs. Holder
2014: McCutcheon v. FEC

Brown v. Board of Education of


Topeka, Kansas (1954)

Linda Brown

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

Timeline of Major Supreme


Court Cases
1803:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
National Federation of Independent Business et al v. Sebelius
Secretary of Health and Human Services
2013: Shelby County vs. Holder
2014: McCutcheon v. FEC

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.

Today, because of
advances in medical
science, some consider
Roe v. Wades
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.

Timeline of Major Supreme


Court Cases
1803:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
National Federation of Independent Business et al v. Sebelius
Secretary of Health and Human Services
2013: Shelby County vs. Holder
2014: McCutcheon v. FEC

Bush v. Gore
(2000)

Timeline of Major Supreme


Court Cases
1803:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
National Federation of Independent Business et al v. Sebelius
Secretary of Health and Human Services
2013: Shelby County vs. Holder
2014: McCutcheon v. FEC

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...

Timeline of Major Supreme


Court Cases
1803:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
National Federation of Independent Business et al v. Sebelius
Secretary of Health and Human Services
2013: Shelby County vs. Holder
2014: McCutcheon v. FEC

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
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

Timeline of Major Supreme


Court Cases
1803:
1819:
1857:
1896:
1954:
1965:
1973:
2000:
2010:
2012:

Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sandford
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Connecticut
Roe v. Wade
Bush v. Gore
Citizens United v. FEC
National Federation of Independent Business et al v. Sebelius
Secretary of Health and Human Services
2013: Shelby County vs. Holder
2014: McCutcheon v. FEC

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

Antonin Scalia
(Reagan 1986)

Anthony Kennedy
(Reagan 1988)

Clarence Thomas
(G.H.W. Bush 1991)

t
s
a
?
e
h
L
c
e
n
Th s Bra
u
o
r
e
g
n
Da

Ruth Bader
Ginsburg (Clinton
1993)

Samuel Alito
(G.W. Bush

Stephen Breyer
(Clinton 1994)

Sonia Sotomayor
(Obama 2009)

John Roberts
(G.W. Bush 2005)

Elena Kagan
(Obama 2010)

Checks and Balances on the


Courts Power
Appointment and Removal
Constitutional Amendment
Statutory Revision
Non-Implementation
Public opinion (?)

Liberal

Ginsburg
Kagan
Breyer
Sotomayor
Kennedy
Alito
Roberts
Scalia

Conservative

Thomas