Q1
It is only in a few cases that the court disposes of a
case in a summary manner. The majority of cases, however, follow a laid down
procedure. The first stage is the oral arguments by the parties with each side
allowed between an hour and half an hour (Collins&Ringhand, 2013). There
are also those few cases when the court accepts written submissions. Lawyers
for each side will have filed briefs of their oral arguments and records amply
enough to allow for the distribution of the same to the justices. Oral
arguments are followed by the conference or conferences where the justices vote
on how they are going to decide. Such conferences are normally held on Fridays
during the course of a term. A case would have been listed on the agenda of the
conference for it to be discussed. A case would usually be listed in the
conference next after the argument. The Chief Justice (C.J) begins the
discussions at the conference followed by the Senior Associate Justice and
continuing in order of seniority until all justices have given their input. Lastly,
the justices vote on emerging positions with the junior justice having the
first vote and proceeding in an ascending order until the C.J casts his vote.
Opinion writing is the next stage of the decision process
with the responsibility assigned just a few days following the conference
(Collins & Ringhand, 2013). The C.J assigns the duty in cases where he has
voted with the majority. The responsibility falls on the Senior Associate
Justice voting with the majority in other cases. Those in the dissent make
their own arrangements as to who writes their opinion. Lastly, opinion writing
takes some time with drafts circulated among the justices and suggestions made
as appropriate. It is not uncommon for justices to switch sides in the process.
Thus, it is only the final decision that usually counts.
The cliché that “I will take this case all the way to the
Supreme Court” often heard from losing litigants is only true to the effect
that their petitions will actually reach the court (Baker, 2004). A losing
litigant, however, has no guarantee that the Supreme Court will review their
case on the merits. The court usually receives several petitions for review
each year but only a few of those are granted review. A case must get a vote of
at least four justices for an application for review to be granted.
Q2
The facts in Marbary
v Madison were that President John
Adams had appointed a number of justices of the piece including one William
Marbury. Adams, however, left office before Marbury could receive his
commission from the Secretary of State. He tried to get the commission from the
new Secretary of State to no avail prompting the case.
At the Supreme Court, the main legal issue revolved
around determining the point at which an appointment by the president is
complete so that the person so named in the appointment becomes entitled to
that office. The relevant provision of the constitution required the president
to nominate candidates for offices that are then to be appointed by him after
the Senate approves of those nominees. Such appointments were to be signified
by the president appending his signature to a commission. The law also directed
the Secretary of State to affix seals to signed commissions. The court resolved
the issue by seeing the two acts of appointment and affixing the seal as
separate from each other with appointment being complete when the president
signs a commission. It meant that Marbury
was entitled to his commission. The court, nevertheless, declined to issue a
writ of mandamus on the ground that the legislation granting it the power to
issue such a writ to government officers was unconstitutional.
At the broader level, Marshall was asserting that it was
the province of the Supreme Court to say what the constitution actually means. It
was not lost to the Chief Justice that other branches of the government also
had to interpret the constitution for their respective purposes. A
determination of the Supreme Court as to the interpretation of the constitution
is, however, final and binding. Furthermore, Marshall was keen to delineate the
boundary of the court’s judicial review powers. Thus, the court is not to
meddle in questions that are political in nature or those to which the constitution
exclusively reserves to the discretion of the executive.
Q3
Article III of the Constitution controls most of the
jurisdictional requirements in federal courts. The provision limits the
jurisdiction of federal courts to what it terms as ‘cases’ and ‘controversies.’
Thus, a federal court will not admit a case unless it involves a real dispute.
A claimant must establish that he has standing before the court as one of the
aspects of justifiability (Little, 2007). This simply means that he/she must
show some connection with the dispute. The plaintiff need only show a direct
nexus between his injury and a federal violation. Secondly, the stake that a
party has in the case should be ongoing. This is the requirement that federal
courts will not admit moot questions. Also common in judicial review cases is
the ripeness doctrine which seeks to prevent federal courts from adjudicating
abstract issues. Lastly, federal courts insist that disputes that come before
them are not political questions or those to which the constitution empowers
the other branches of government to exclusively deal with. This last aspect is
in line with the doctrine of separation of powers.
Jurisdictional requirements in state courts are more or
less similar to that at the federal level with the exception that some of them
tend to be liberal relative to the federal courts (Oakley& Amar, 2009). California
and New York are typical examples of states with less stringent standing
requirements.
Q4
The Ashwander rules fall within the wider category of
judicial restraint. They are basically seven in number. First, the court must
exercise restraint in commenting on the constitutionality of a statute when
there is no dispute (Stephens & Schebs, 2008). This rule emphasizes the
fact that the court’s comments on such manners are more legitimate only in the
context of an adversarial dispute. Secondly, the rules also urge restraint on
the part of courts regarding the anticipation of questions of constitutional
law in advance of a necessity to decide such questions. This is further strengthened
by requirement that the court refrain from constitutional questions unless
prompted by absolute necessity. In formulating a rule of constitutional law,
its contours must remain within the precise requirements of the facts to which
it is to be applied (Stephens & Schebs, 2008). In addition, there must be
no other ground of disposing a case before the court can pass apply the
constitutional ground. A complainant challenging the validity of a statute must
first establish an injury to him by the statute for the court to pass on the
issue of validity (Stephens & Schebs, 2008). Besides, the person
challenging the constitutionality of a statute must not have benefited from
that statute. Lastly, attempts must first be made at resolving questions as to
the validity of an act of Congress by seeking interpretations that avoid such
questions as to validity. The Ashwander rules are, however, only additional and
the court will accept jurisdiction so long as the initial standing requirements
are met.
Q5
Approaches to constitutional interpretation
·
Textualism:It
is an approach that looks to the original public meaning of the constitution as
gathered from the texts published around the time that the constitution was
ratified(Treanor,2009).
·
Intentionalism:
Looks to the intent of the Framers and Ratifiers of the constitution to
ascertain the meaning.
·
Originalism:
This is just the name given to all those interpretative approaches that seek to
interpret the constitution in accordance to what it originally meant.
·
Consentualism:
Relies on the current social consensus on the meaning of a constitutional
provision.
·
Structuralism:
Proceeds from the precept that the constitution goes beyond the mere text of
the document.
·
Doctrinarism:
At the core of this approach is the understanding that the constitution is
constantly developing. It places reliance on past interpretations to determine
the direction that the constitution should take. This gives leaves
doctrinalists with so much discretion given that there is always so much in the
past to choose from.
·
Pragmatism:
Involves the interpretation of the constitution in a manner alive to the
practical realities of the occasion.
·
Philosophic:
It puts emphasis on the underlying assumptions as indispensible in construing
the meaning of any constitutional text (Barber & Fleming, 2007).
Having the Supreme Court as the ultimate expositor of the
constitution gives room for the adaptability of the latter. For instance, the
court can align the meaning of certain provisions of the constitution depending
on the changes that have occurred in the society. In addition, the instrument
of judicial review is an important complement to the doctrine of checks and balances.
The only demerit with an arrangement where the Supreme Court is the final
authority on the constitution relates to its lack of capacity to handle all
vexing constitutional questions. By its rules, the Supreme Court only deals
with a few of the many petitions that go before it.
In Dred Scot v.
Sandford, the court followed a
textualist approach of interpretation (Finkelman, 2007). It related to the
interpretation of the Due Process Clause of the Fifth Amendment to which the
court saw no textual enumeration of a power given to the Congress to affect the
right to property. This then provided the ground for striking down the Missouri
Compromise. On its part, Marbury v. Madison virtually relied on pragmatism
as an approach to constitutional interpretation. Justice Marshall was aware of
the political situation in the country while at the same time mindful of the
need to show the court as strong. The consequence was to avoid a direct
confrontation with the executive while at the same time asserting the powers of
the court.
Q6
Both Baker v. Carr
and Shaw v. Reno are analogous to the
extent that the court was able to cleverly overcome long established challenges
to standing thereby seizing the jurisdiction. As regards to Baker, the
challenge before the court was the so
called political question doctrine while a lack of injury challenged face the Shaw case. It was long established in a
series of precedent that political that courts were precluded from examining
political questions under its judicial review powers (Rivers, 2012). With
specific relevance to Baker, Colegrave
v Green had singled reapportionment
of electoral districts as falling among political questions. To clear the
vexing jurisdictional challenge of political questions doctrine, the court distinguished
the relationship between the Supreme Court and other coordinate levels of the
federal government on the one hand and that with the states on the other hand
holding that the political questions doctrine was only applicable in the former
cases. A similar level of ingenuity was exhibited in the Reno case where the
court established a completely new concept of ‘social harm.’ It was then
possible to dispense with the need of showing injury on the part of the
litigants.
Even as they wrote groundbreaking opinions, the majority
authors in the two cases had to contend with serious objections from dissenters
(Rivers, 2012). Justice Brennan was facing accusations that the majority would
effectively be discarding a long history of tradition including the accepted
doctrines of judicial restraint and separation of powers. On his part, Justice
O’Connor had to contend with an objection from Justice White that the court had
departed from the appropriate prior authorities necessary for analyzing the
case. This is a position that was shared by two other dissenters. Justice
Scouter was even more scathing in his attack holding that race based
redistricting should receive a lenient scrutiny.
Q7
Justice Frankfurter was simply warning the court against
intruding into what he thought, and were actually, political questions. That
this was the case comes out in many other parts of his opinion. For instance, he pointed to the fact that even
the constitution was not clear on how the issue of redistricting was to be done
(Schwartz, 1998). The court plunging
into such unclear territories would mean that it would be taking sides given
that political processes are such that people take sides. Frankfurter was,
therefore, concerned that the court would lose the confidence of the public in
the event that it is seen to be partisan. Besides, Justice Frankfurter did not
think that the court could work out any judicial remedy to deal with an issue
such as redistricting. It is worth noting that Frankfurter’s pessimism on the
practicality of any judicially worked remedy for redistricting was ill founded.
It only took the following year for the court to actually come up with a
judicially worked remedy to the problem of redistricting. That remedy is the so
called ‘one man one vote.’ Although the justices did not go to the merits of
the case, Frankfurter thought that applying established precedent would provide
an alternative to the position taken by the majority.
Q8
a).
Reading through Justice Steven’s majority opinion in U.S Term Limits Inc v. Thornton, one cannot help but conclude
that he was following an intentionalist approach to constitutional
interpretation. It a conclusion borne out of a litany of evidence. Throughout
the opinion, Justice Steven kept emphasizing the search for the Framer’s
intention. It is a search that took the court to its previous decision in Powell v McCormack where it held that the Framers had intended to fix the
qualifications of members to the Congress. The same search also took the court to mine
historical documents such as the Federalist Papers just to glimpse on what the
Framers might have intended.
b).
In contrast, Justice Thomas’s dissent fall much into a
textualist approach to constitutional interpretation. A cursory glance at the
opinion will reveal a Justice so determined to gather the meaning of the
constitution from available public documents. For instance, reference is made
of the constitutional convention as having been that of the people of the
various states and not of the United States. This commitment to text also shows
up when Justice contends that an absence of a provision in the constitution
limiting the power of the states means that there is no limitation to that
power in any other place.
Q9
Going through Marshall’s opinions in both McCulloch v Maryland and Cohens v Virginia, all signs reveal a Chief
Justice more suspicious of the actions of the state legislatures as opposed to
those of the Congress. In McCulloch, he bemoans the contention of a state’s
general power to tax urged on behalf of Maryland fearing its ability to creep
beyond the defined bounds of the constitution. It a concern Marshall echoes in Cohen when he dedicates a substantial
portion of his analysis to the mischief that would attend Virginia’s
contention. It is an analysis that leads the Chief Justice to conclude that
adopting Virginia’s position would only work to make the work of the Union
difficult. That Marshall was suspicious of the acts of the state legislatures
is also evident in the proportion of both opinions directed to rebutting the
contentions of the states. Thus, the greater part of McCulloch was just
dedicated to finding fault with the position taken by Maryland. For instance,
he goes to great lengths in rebutting Maryland’s position that the constitution
grants states an unlimited power to tax.
Even more apparent from Marshall’s opinions in the two
cases is his view of the role of the Supreme Court in the then young nation. He
saw the court as a guardian of the Union. This much is exemplified in the
number of times he had to cite excerpts of the constitution echoing this
message.
Q10
Despite sustained criticisms from a number of quarters,
Chief Justice Rehnquist’s majority opinion in Morrison v. Olson is does remain persuasive
as seen in light of both Myers v United States as well as Humphrey’s Executor v the United States. This much becomes so
apparent only with a little delving into the three cases. To begin with, all
cases were concerned with the separation of powers doctrine at the broader
level on the one hand and the president’s removal powers at the specific. In
Meyers, the Supreme Court seemed to have put to rest the question of the president’s
power of removal when it declared attempts to control that power as
unconstitutional. In the spirit of developing the law, the court adding an
exception to this general rule in its decision in Humphrey’s Executer. The exception made it constitutional to limit
the removal power with respect to independent agencies exercising
quasi-judicial/legislative powers. Rehnquist was persuasive to the extent that
he was able to make a distinction between Myers and Humphrey’s. To the
contention that the court could be bound by its precedent in either of the two
earlier cases, Rehnquist successfully explained that the terminologies in those
cases were not meant to create any fixed rules.
References
Baker,T.E.(2004).A
Primer on Supreme Court Procedures.American Bar Association, 8,475- 485.
Barber,S.A.&Fleming,J.E. (2007).Constitutional Interpretation: The Basic Questions. New York: Cambridge University Press.
Collins, P.M.& Ringhand, L.A. (2013).Supreme Court Confirmation Hearings and Constitutional Change. New York:
Cambridge University Press.
Finkelman,P.(2007).Scott v Sandford: The Court’s Most
Dreadful Case and How it Changed History.
Chicago-Kent Law Review, 82(3), 3-48.
Little,L.E.(2007).Federal
Courts: Examples and Explanations, First Edition. New York: Aspen Publishers.
Okley,J.B.& Amar,V.D. (2009).American Civil Procedure: A Guide to Civil Litigation in U.S Courts. The Netherlands: Kluwer Law
International.
Rivers,C.R.(2012).The
Congressional Black Caucus, Minority Voting Rights, and the U.S Supreme Court. New York: University of
Michigan Press.
Schwartz,B.(1998).Decisions:
How the Supreme Court Decides Cases. New York: Oxford University Press.
Stephens, O.H.&Scheb, J.M. (2008).American Constitutional Law: Sources of
Power and Restraint.Mason,
OH:Thomson.
Treanor,W.M.(2009).Against Textualism.North Western University Law Review,
103(2),983- 1006.
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