First Day

Supreme Court Workflow 1 Petitions for Certiorari Discuss List Dismissed Rule of Four Certiorari Granted – Placed on Docket Briefs Submitted

Supreme Court Workflow 2 Oral Argument Conference/ Opinion Assigned Majority Opinion Circulated Dissents/Concurrences Circulated Opinion Released

Key Terms to Review Original Jurisdiction Appellate Jurisdiction Writ of Mandamus Judiciary Act of 1789, Section 13 Art. III, sec. 2 of the Constitution

Questions for Marbury Jurisdiction is the power of a court to hear a case, shouldn’t this have been decided first? Did Congress give the Supreme Court original jurisdiction in Sec. 13 of the Judiciary Act? Does the Constitution give Congress the power to regulate the Supreme Court’s jurisdiction? Who wins in this case? Consider Gibson’s critique of Marbury in Eakin. Who has the better argument, Marshall or Gibson?

Judicial Review First Lecture

Constitutional Law Government has limited powers Enumerated powers: coining money Implied powers: chartering national bank Individuals’ rights also limit gov’t powers Enumerated rights: Speech, Assembly Implied rights: Association, Privacy

Sources of Law Natural Law Customary Law Statutory Law Judicial Precedent (Common Law)

Natural Law Religious conception, or at least Deist (“endowed by their Creator”) Pre-exists state, beyond human choice, and universal (“inalienable”) Requires acceptance of premise and poorly defined (“these truths to be self-evident”) A modern version: “implicit in a concept of ordered liberty”

Customary Law Specific to a single society – not universal “the rights of Englishmen” Fills in natural rights due process comes to include jury trial Often relies on invented history the “ancient constitution,” Magna Carta Should be understood as tradition, not history

Statutory Law Primary attribute is that it is clearly STATED and thus created by the sovereign Applies only within single state May be foundational (Constitution) or ordinary (regular statutes or regulations) Governed by legislative intent Sovereign may state law through its representatives

Judicial Precedent (Common Law) Judge-made Applies only within court’s jurisdiction Non-democratic, may be countermajoritarian Dependent on other forms of law, texts Driven by specific, often insoluble conflicts between other stated norms which require innovative solutions Mostly incremental with few sudden changes

Constitutional tradition requires rule of law Law is universal and treats all like cases similarly without special treatment for any person. Rule of law applies to the state as well as all private parties Tom Paine: “as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

H.L.A. Hart Rule of law requires both 1.Primary rules – obligations and prohibitions 2.Secondary rules – which govern primary rules and give them proper effect, signaling when they are legitimate

Judicial Review: Judges Examine The Legitimacy Of Primary Rules Using Secondary Rules

Example: Gay Marriage in CA Marriage license regulations are primary rules (must be 18, not married to anyone else) Popular sovereign added Prop 8 banning gay marriage to CA constitution - adds new primary rule (must be one man/one woman)

Example: Gay Marriage in CA Secondary Rule #1: State Constitutions are to be given great weight in state matters, esp. b/c of popular ratification (or initiative as in CA)

Example: Gay Marriage in CA Secondary Rule #2: 14 th Amendment of U.S. Constitution: “no state may deny any person equal protection of the law” nor deprive any person “of life, liberty or property without due process of law”

Two Forms of Due Process Procedural: A person must be given notice and a fair hearing before a neutral decision-maker before adverse action Substantive: Laws must be based in real needs and the means chosen to serve those needs must be based in both logic and evidence

Due Process Question in Prop 8 Case is: How are the state’s interests in marriage furthered in a logical manner based on evidence and concretely enough tied to a specific requirement of a male/female couple?

Example: Gay Marriage in CA Judge Walker finds that : Prop 8 lacked a proper, secular purpose in denial of wedding license to same sex couples, thus depriving persons of liberty to marry based solely on sex of partner

Example: Gay Marriage in CA Secondary Rule #3: Supremacy Clause of U.S. Constitution: “This Constitution … shall be the supreme Law of the Land” 14 th Amend trumps Prop 8

Dr. Bonham’s Case (England, 1610). Parliament could not delegate judicial powers over disciplinary cases to the Royal College of Physicians when the Royal College receive the proceeds of the fines because of the principle of due process that “no man should be a judge in his case”

Dr. Bonham’s Case (England, 1610). Chief Justice (Sir) Edward Coke wrote, “when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.”

Bayard v. Singleton (North Carolina, 1787) Bayard sought to reclaim her Loyalist (Tory) family's confiscated property after the Revolutionary War. A panel of local judges (NC did not yet have a Supreme Court) found that the NC law allowing confiscation violated the right to property.