Category: Marbury V Madison

The purpose of the courts is to solve legal matters by using the law to interpret each case (Khatri, 2016). The Supreme Court otherwise referred to “Court of Final Appeal”, is the highest level of the Federal Court System and has a wide array of setting precedence and jurisdiction (Khatri, 2016). A common question about the Supreme Court is how they choose their cases. The Supreme Court has thousands and thousands of cases to choose from and only some of the select few are chosen to be reviewed by the Supreme Court. How the Supreme Court chooses a case is that they tend to choose cases that have “national importance”, and a lot of cases will set a precedent for future cases (Schneider, 2017).

Something that takes place within the Supreme Court is precedence, which is an outcome from a case that directs upcoming cases that have comparable aspects (Khatri, 2016). An example of a case that sets a precedent would be Plessy v. Ferguson where a 1/8ths black and 7/8ths white man’s case determined that segregation based on color was not legally right. Although everyone was technically considered “equal” to one another, the colors were separated. The term “separate but equal” meant that every person, regardless of race, is protected equally under the law, and its purpose was to avoid white privilege. In 1862, Homer Plessy rode the white train because he could pass as a white man. The Plessy v. Ferguson case not only brings awareness to those of mixed colors, but it also shows the injustice of the courts when a person of color is involved. In the end, the Supreme Court set a new precedent-based off of this case and “gave legal justification for racial segregation for different races were legal as long as those facilities were equal to one another” (Khatri, 2016). The precedence set within this case opened up a narrow sliver of justice to those that were wrongfully treated due to segregation and allowed for another case to solve this issue.

The case that solved the case of segregation was Brown v. Board of Education. This case was started due to the inequality of having black and white schools (Khatri, 2016). Brown v. Board of Education showed the courts that even though the colors were separated, they were not equal. Blacks and whites had different schools and, in theory, were getting the same education but that was not the case. This particular Supreme Court Case “overturned Plessy v. Ferguson and nullified the concept of “Separate but equal.” (Khatri, 2016).

Another part of the Supreme Court is having jurisdiction, which means that a “court has the right to hear a case” (Khatri, 2016). Supreme Court jurisdiction is similar to when a Harris County police officer has jurisdiction over Harris County and not Montgomery County. The Supreme Court exhibits appellate jurisdiction and examines if the “law was correctly applied” (Khatri, 2016). What this means is that if a large group of people does not think that the case was correctly dealt with, then the Supreme Court can come in and determine whether or not the trial was fair.

The Supreme Court is also subject to the two judicial philosophies “judicial activism” and “judicial restraint” (Khatri, 2016). Judicial activism is whether or not the Constitution was meant to be interpreted in cases and judicial restraint is where the Supreme Court takes the Constitution word for word without any interpretation (Khatri, 2016). Judicial review is determining whether or not something is constitutional and how the law should be interpreted (Khatri, 2016). Marbury v. Madison was actually the case that established judicial review and allowed the courts to “check” Congress and/or the President. Marbury v. Madison was a case that also set a precedent in the sense that “the Constitution is what the Supreme Court says it is” (Khatri, 2016). At the end of his presidency, President John Adams was in the process of appointing Marbury when Thomas Jefferson takes his position (Khatri, 2016). Thomas Jefferson does not want Marbury to be appointed so James Madison does not deliver Marbury’s “letter of appointment” (Khatri, 2016). Marbury was very upset and brought the constitution and the law into play and while the Supreme Court looked at both Marbury and Madison’s side of the story, they determined that they do not have the “authority to make Madison deliver the letter” (Khatri, 2016). This case brought into question whether or not the Supreme Court can deem something unconstitutional or not.

The last of the four examples of Supreme Court cases is Us v. Nixon and this case questioned the constitutionality of separation of powers. The question being asked during this case was how much “confidentiality” should the President be entitled to (Khatri, 2016)? Does the President have the ability to keep vital information to himself? In the end, the court decided that not everything should be confidential to only the President because it would allow too much confidentiality to the President, harming the well-being of the country.

The Supreme Court and many of its cases are important to how the United States of America behaves when it comes to certain subjects. If it were not for cases such as Plessy v. Ferguson and Brown v. Board of Education, there is a very real probability that segregation would still be prevalent. Cases like Marbury v. Madison determined how to use judicial review, and although it is still debated it bring awareness to the two judicial philosophies.

Undoubtedly the Supreme Court has considerable political power. This power has come about after the case Marbury v Madison, the landmark decision that helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government. The job of a judge, in this case of the Supreme Court Judges, is to be unbiased, fair, neutral, impartial, and their judgement should not be based on those of any political party or movement. The Supreme Court has exercised judicial review striking down laws of the elected branches of Federal and State governments for being ‘unconstitutional’. In addition to this, the appointment process to the Supreme Court has become more ‘politicised’ meaning that they are only chosen if they match the political ideologies of the President that nominates them. A common complaint of the Supreme Court is that: how can unelected officials make policy without being accountable? Republicans objected to the ‘liberal’ decisions of the Warren Court 1953-69 and Democrats object to the current conservative rulings of the Roberts Court. However, this does not imply that once in office, Supreme Court justices act like elected politicians in order to promote their personal views. In this essay, I will argue that despite the appearance of a politicised judiciary, the Supreme Court essentially make judicial decisions in a judicial way, though these have may occasionally have political effects.

Those who object to judicial activism believe that the Supreme Court is becoming too political. “If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history”, Justice Ginsburg said in August in an interview with The New York Times. “This court has overturned more legislation, I think, than any other”. In the Supreme Courts lifetime both parties complain about activism on either side. The conservatives complain about the ‘liberal activism’ of the Warrens court. Two key landmark cases for this would be Brown v Board (1954) and then Roe v Wade (1973). These decisions acted as an engine for social change protecting minorities an area of which had been neglected by politicians in America’s history. The Liberals however, also complain about ‘conservative activism’ of the Roberts Court. An example of this is the District of Columbia v. Heller that opens the door to countless challenges to laws that regulate firearms. The case also powerfully shows that it is the ideology of the Justices and not their philosophy of constitutional interpretation that determines the outcome of cases. Conservatives generally favor gun rights and the five most conservative Justices followed their politics to this conclusion.

When judges are nominated and appointed it can raise the issue about the process being politically biased. When a vacancy on the Supreme Court appears through the retirement, death or impeachment of a justice the current president has to nominate the next justice and then the Senate either approves the nominee or rejects them. The Bork nomination demonstrated how a political nomination could occur. Ronald Reagan attempted to nominate Robert Bork as Supreme Court Justice in 1987. The nomination was seen as extremely controversial from the Democrats perspective because of Bork’s somewhat extreme conservative rulings in the past, senator ted Kennedy taking to the Senate floor and saying, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution”. The eventual rejection of Bork with 42 senators voting ‘Yes’ and 58 voting ‘No’ was a watershed moment making the nomination process increasingly political because it set a precedent whereby Presidents knew that they could not nominate someone who was against abortion displaying politicisation by the Senate. Arguably, ‘liberal’ justices justify their decisions by arguing they are ‘loose constructionists’ whilst knowingly boosting liberal causes e.g. Roe v Wade 1973 guarantied women a right to an abortion where no clear constitutional right to one exists. Similarly, the conservatives argue they are ‘strict Constructionists’ whilst knowingly protecting vested interests, an example being Citizens United v FEC in 2010, because there is explicit protection for these rights from the 1st amendment that the Supreme Court protects.

There are many limits on the Supreme Court one of which is that the court must ensure that justiciability can be shown. That is, that the case they are going to consider raises justiciable question – these are “appropriate for judicial interpretation”. In this case Chief Justice Charles Evans said that justiciable questions involve ‘a real and substantial controversy’ that can be resolved by a conclusive ruling in a court of law. It should be a yes or no question. It should have a clear basis in the constitution. It may be a question that has divided opinion in the lower courts, so a definitive answer is needed. This limit coincides with another in that the court can only consider cases that appear before it. It cannot simply choose to get involved in a particular policy area but must choose from the cases that have reached the Supreme Court. Thus, the Court only considers cases of law. It does not and cannot offer advisory opinions. Therefore, heavily suggesting that the justices of the Supreme Court are far from politicians.

The ruling of the Supreme Court on cases such as Brown vs. Board suggests that judicial activism rather than making the Justice more political demonstrates how it can often bring the right societal outcomes. Brown v. Board is an example of where judges intervened on a case that split public opinion but used judicial activism correctly in ruling the segregation of schools as unconstitutional and therefore fulfilling their job expectation, which in this case was giving minority’s equal rights to everyone else. Only an unelected branch was capable of protecting constitutional minority rights in those extreme circumstances.

The accusation that the Supreme Court justices are politicians wielding unacceptable unaccountable political power does not ring true. They can strike down the laws of the elected branches but only if found unconstitutional; all Supreme Court rulings are explained as judicial rulings. The Supreme Court undoubtedly makes decisions that affect political outcomes; but this is inevitable (their role is to deliver judicial review). Despite the political side hanging over their appointment, it is far from clear that, once there, the justices use their position to legislate from the bench; if they were widely perceived as doing so, they would lose legitimacy. Finally, it is evident that the Supreme Court justices do not act like politicians as they are independent of government control and do not need to seek re-election, having life tenure.

Introduction

A few weeks before Thomas Jefferson was inaugurated as the 3rd President of the United States, the Federalist Congress came up with 16 new circuit judgeships and more judgeships (Organic Act) with which Adams went on to fill the Federalists in a bid to have control over his party’s control of the judiciary and to frustrate the legislative agendas of the new President Thomas Jefferson, together with his party the Democratic-Republican party (Clinton, 1991). Taking into consideration that he was the last of the “Midnight Appointments,” William Marbury did not receive his commission before Thomas Jefferson became the President (Vile, 2012). When Thomas Jefferson became the president, he instructed James Madison (Secretary of State) to issue a writ of mandamus to compel James Madison to be able to act (Strauss, 2018).

Marbury who had a good legal team comprised of former attorney general Charles Lee argued that sealing the commission was an act of fully completing the transaction which means the delivery in any form of the event was just but mere formality (Shehu, 2017). Looking at the situation from a legal/constitutional point of view, it is clear that Marbury could not enter into any form that could grant him the duties of the office without the actual piece of parchment whether it’s just a formality or not (Nelson, 2018). Despite Thomas Jefferson’s objection to the issue, the court decided to hear the case which is famously known as Marbury v. Madison.

Most scholars argue that Marshall should not have been in the case taking into consideration that he was a former Secretary of State. The current judicial standards would have called for recusal (Clinton, 1991). At that time, when only financial connections would have led to a judge to step aside (Sloan, 2009). This case was the beginning of the discussion of Separation of Powers, and the Checks and Balances of the judiciary and other branches of government (Strauss, 2018).

The Supreme Court’s Power of Judicial Review

All the best-known power of the Supreme Court lies in its ability to declare a Legislative or Executive Act that violates the constitution (Smith, 1989). This is what is famously known as judicial review and is not found in the text of the constitution itself (Vile, 2012). This doctrine was established in the Marbury v. Madison case in 1803 (Santos, 2018). The court had to determine whether the constitution or act of Congress was the supreme law of a specific jurisdiction (Smith, 1989).

The Judiciary Act of 1789 was able to give the court original jurisdiction with which they could issue legal orders that compels government officials and leaders to act by a specific law that has been set (Shehu, 2017). Subsequently, a legal suit was brought against this act, but the court categorically stated that the court did not have the jurisdiction whatsoever to handle the matter since Article VI of the United States Constitution established the constitution itself as the supreme law of the land. That meant that the court held that the Act of Congress is in opposition to the constitution which in this case is the supreme law of the land (Clinton, 1991). In the follow up of other cases, the courts struck down all state laws that were considered to violate the Constitution. Before the 14th Amendment, the Bill of Rights was only applied with the Federal government and after the amendment, the courts started ruling most laws following other states (Smith, 1989).

After all this, it was clear proof of the separation of powers. The courts were sending a clear message on what they can exercise and what the executive and the legislature could (Sloan, 2009). The Supreme Court was defining the powers of every branch of the government by interpretation of the constitution (Nelson, 2018). This also meant that the court had the final verdict on when a right is being protected by the constitution or whether the constitutional right is being violated (Shehu, 2017). This was the beginning of the separation of powers discussion in the United States that led to enormous laws and amendments to the constitution that we have today (Sloan, 2009).