essay on judicial branch

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Supreme Court developed the Constitutional Avoidance Doctrine to minimize concerns about unelected federal judges setting aside Congress’s laws on constitutional grounds. Underlying the Constitution is the principle that government legitimacy depends on the consent of the people. Noting that “Governments are instituted among Men, deriving their just powers from the consent of the governed,” the Declaration of Independence justified the colonies’ separation from the British Crown, because it had, through “repeated injuries and usurpations,” deprived the colonists of government that represented and protected their interests. 1 Footnote The Declaration of Independence (1776) .

Contemplating that popular sovereignty would guard against tyranny, the Framers provided for the people to elect the House of Representatives directly and the Senate and the Executive indirectly. Popular sovereignty, which the Framers viewed as necessary for a free and republican government, meant government by the majority. 2 Footnote John Locke , Second Treatise § 97 (1689) ( “And thus every Man, by consenting with others to make one Body Politick under one Government, puts himself under an Obligation to every one of that Society, to submit to the determination of the majority , and to be concluded by it; or else this original Compact, whereby he with others incorporates into one Society , would signifie nothing and be no Compact, if he be left free, and under no other ties, than he was in before in the state of Nature.” ). The Framers, however, feared that conflicting opinions and rivalries among factions of citizens might cause political instability or, if a faction gained a political majority, harm “the public good and the rights of other citizens.” 3 Footnote The Federalist No. 10 (James Madison) . See also The Federalist No. 51 (James Madison) ( “It is of great importance in a republic not only to guard one part of the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.” ). To avoid this, the Framers crafted a Constitution that disbursed the limited powers of the new American government across three departments: the Legislative, the Executive, and the Judiciary, each with a unique role in securing for the Republic “a steady, upright, and impartial administration of laws.” 4 Footnote Id. No. 50 (James Madison) .

The Framers were also concerned that different branches might attempt to expand their powers beyond those granted by the Constitution and upset the balance the Framers designed to “secure the blessings of liberty.” 5 Footnote U.S. Const. pmbl. Consequently, the Framers provided each branch some ability to offset the power of the other two. 6 Footnote The Federalist No. 78 (Alexander Hamilton) . Describing the division of federal power among the three branches in the Federalist No. 78 , Alexander Hamilton identified the Judicial Branch as posing the least danger to the constitutional framework. He stated:

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 efficacy of its judgments. 7 Footnote Id.

Although Hamilton viewed the Judicial Branch as the weakest of the branches, the Framers saw it as critical to preserving the rights of individuals and ensuring that the Legislative and Executive Branches did not exceed their constitutionally-granted powers. 8 Footnote Id. ( “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specific exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way then through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” ). Hamilton recognized the Constitution as superior to acts passed by Congress because the Constitution, by virtue of its ratification process, 9 Footnote Id. No. 40 (James Madison) (describing the Constitution as being submitted to “the people themselves” for ratification). Delegates to state ratifying conventions were selected by popular vote. John Hart Ely , Democracy and Distrust, A Theory of Judicial Review 5 (1980) . manifests the intentions of the people, whereas acts of Congress merely manifest the intention of the people’s agents. 10 Footnote The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], 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.” ). See The Federalist No. 49 (James Madison) ( “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power is derived.” ); see also M’Culloch v. Maryland, 17 U.S. 316, 404–05 (1819) (Marshall, C.J.) ( “The government of the Union, then . . . is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be directly exercised on them, and for their benefit.” ). He wrote: “[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” 11 Footnote The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], 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.” ).

Hamilton further described the Judiciary as the “bulwarks of a limited Constitution against legislative encroachments,” stating: “[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” 12 Footnote Id. Hamilton also viewed the Judiciary as protecting minority interests from potential oppression by the majority, stating:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. 13 Footnote Id.

Whether the Framers intended to authorize the Judiciary to set aside laws passed by the elected legislature, as Hamilton envisioned, has been the subject of debate from the Nation’s earliest days. The Constitution does not expressly provide for judicial review. And while it is clear from the Federalist Papers that many Framers contemplated judicial review as including the power to invalidate acts that violated the Constitution, it is less clear whether delegates to the state ratification conventions agreed as to what judicial review might entail. 14 Footnote There was not always consensus that the federal courts had the power to strike down laws as unconstitutional. President Andrew Jackson once opined: “[T]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Andrew Jackson, Veto Message (July 10, 1832), http://avalon.law.yale.edu/19th_century/ajveto01.asp . After identifying the twenty-five delegates with the greatest impact on the Constitutional Convention, historian Charles Beard identified those who either directly or indirectly supported “judicial control” —John Blair of Virginia, John Dickinson of Delaware, Oliver Ellsworth of Connecticut, Elbridge Gerry of Massachusetts, Alexander Hamilton of New York, William Johnson of Connecticut, Rufus King of Massachusetts, James Madison of Virginia, Luther Martin of Maryland, George Mason of Virginia, Gouverneur Morris of Pennsylvania, Robert Morris of Pennsylvania, William Paterson of New Jersey, Edmund Randolph of Virginia, George Washington of Virginia, Hugh Williamson of North Carolina, and James Wilson of Pennsylvania—either directly or indirectly supported “judicial control.” Charles Beard , The Supreme Court and the Constitution 47 (Dover ed. 2006) .

Chief Justice John Marshall’s opinion in his seminal 1803 decision, Marbury v. Madison firmly entrenched judicial review as a tenet of the new Republic. 15 Footnote Marbury v. Madison, 5 U.S. 137 (1803) . For an earlier case recognizing judicial review, see Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796) . See also Herbert Wechsler , Principles, Politics & Fundamental Law (1961) ( “The courts have both the title and the duty when a case is properly before them to review the actions of the other branches in the light of constitutional provisions, even though the action involves value choices . . . .” ); William Michael Treanor , Judicial Review Before Marbury , 58 Stan. L. Rev. 455 (2005) ; Robert P. Frankel, Jr. , Before Marbury: Hylton v. United States and the Origins of Judicial Review , 28 J. Sup. Ct Hist. 1 (2003) . Chief Justice Marshall saw judicial review as implicit in the Constitution because, among other reasons, written constitutions are the paramount law; legislative acts contrary to the Constitution are thereby void; and the Constitution provides for the judicial department to interpret the law. In Marbury , Chief Justice Marshall wrote:

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. . . . This original and supreme will organizes the government, and assigns, to different departments, their respective powers. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution is void. . . . It is emphatically the province and duty of the judicial department to say what the law is. . . . [I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle . . . that a law repugnant to the constitution is void; and that courts , as well as other departments, are bound by that instrument. 16 Footnote Marbury , 5 U.S. 137 at 176–80 (emphasis retained). See also Trop v. Dulles, 356 U.S. 86, 103 (1958) ( “The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights.” ).

Lending support to the notion that the Constitution contemplates judicial review, the Framers distinguished the Judicial Branch from the Legislative and Executive Branches by freeing it from most forms of political accountability. 17 Footnote The Federalist No. 49 (James Madison) ( “The [Judiciary], by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions.” ). See also id. No. 78 (Alexander Hamilton) ( “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specific exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way then through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” ). Unlike the Legislative and Executive Branches, the Federal Judiciary is not subject to elections or term limits. Instead, the President nominates and the Senate approves Justices to the Supreme Court. 18 Footnote U.S. Const. art. II, § 2, cl. 2 ( “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . .” ). The Constitution further secures the Judiciary’s independence from public pressure and Legislative and Executive Branch influence by providing Justices life tenure during Good Behavior 19 Footnote The Good Behavior Clause created a “permanent tenure of judicial offices” to ensure an “independent spirit in judges.” The Federalist No. 78 (Alexander Hamilton) . See ArtIII.S1.10.2.3 Good Behavior Clause Doctrine. and preventing Congress from reducing the Justices’ compensation. 20 Footnote The Compensation Clause created a “fixed provision for [the judiciary’s] support” to prevent the political branches from having power over a Justice’s pecuniary remuneration and, with that, “power over his will.” The Federalist No. 79 (Alexander Hamilton) . See ArtIII.S1.10.3.1 Historical Background on Compensation Clause.

Congress, however, has some checks on the Judiciary. Justices can be impeached, 21 Footnote Jared P. Cole & Todd Garvey, Cong. Rsch. Serv. , R46013, Impeachment and the Constitution (2019), https://crsreports.congress.gov/product/pdf/R/R46013 . and the Exceptions Clause in Article III grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction. 22 Footnote See Kevin Lewis, Cong. Rsch. Serv. , R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein (2018), https://crsreports.congress.gov/product/pdf/R/R44967 . In addition, Congress can dilute the influence of individual Justices by increasing the number of Justices on the Court. 23 Footnote Joanna Lampe, Cong. Rsch. Serv. , LSB10562, “Court Packing” : Legislative Control Over the Size of the Supreme Court (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10562 . Finally, the Judiciary’s reliance on the other branches to give effect to its rulings provides a further check: If the Judicial Branch’s rulings are not enforced, the Judiciary becomes, in practical effect, a nullity, incapable of meaningfully performing its duty of preserving the Constitution. 24 Footnote Chief Justice John Marshall recognized this problem in Marbury v. Madison , ruling that while Marbury was entitled to his commission, the Court could not effectuate its delivery because the Judiciary Act of 1793’s writs of mandamus provision was unconstitutional. 5 U.S. 137, 176 (1803) ( “The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.” ). Consequently, while the Judicial Branch is largely insulated from political pressure, it is not completely insulated.

Background Essay: The Supreme Court and the Bill of Rights

Guiding Question: How has the Supreme Court decided cases in controversies related to the Bill of Rights?

• I can identify the role of the Supreme Court in protecting civil liberties.
• I can explain how the Supreme Court’s role has changed over time.

Essential Vocabulary

During the last 60 years, the Supreme Court has become perhaps the central defender of civil liberties, or freedoms that government is not allowed to restrict, in the United States. This role has been a relatively recent development that marked a distinct change from the Founding, when the Court mostly addressed government powers. The evolution of this role for the Court has greatly expanded popular expectations of enjoying individual rights. However, it has also been fraught with numerous difficulties, both for the constitutional order and for the Supreme Court itself, as it has become the center of controversy about rights.

Limited Government and the Supreme Court

The original Founding understanding of the Bill of Rights was that it limited the powers of the federal government to violate the rights of the people. When originally ratified, the Bill of Rights only applied to the national government, not to state governments. State governments had their own bills of rights to protect their citizens. This reflected the constitutional principle of federalism, or the separation of powers between state and national governments. The Supreme Court endorsed this Founding view that the Bill of Rights applied only to the national government in the case Barron v. Baltimore (1833).

Moreover, this also represented the principle of limited government, one of the foundations of protecting liberties. The national government had certain enumerated and implied powers that the three branches—legislative, executive, and judicial—exercised in making, executing, and interpreting the law. Enumerated powers are those listed explicitly in the Constitution. Implied powers are those that government has that are not written in the document. The national government could not exceed these powers to violate the liberties of the people. To further this protection, states had their own bills of rights. The Declaration of Independence asserted that the ultimate protection of the people’s liberties is the overthrow of a tyrannical government after a long train of abuses.

The role of the Court was to hear all cases arising under the Constitution. After the case of Marbury v. Madison (1803), the Court’s role expanded to include determining the constitutionality of governmental laws and actions. However, there was debate over whether or not the other branches also had the responsibility of interpreting the Constitution.

It is important to note that although the Court could rule a law or action unconstitutional, it was not necessarily the final word on the Constitution. In a speech critical of the Dred Scott v. Sandford (1857) decision, Abraham Lincoln quoted Andrew Jackson, saying, “The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution.” Lincoln was arguing that the Court’s authority and just precedents , or earlier laws or rulings, should be respected, but the Supreme Court was not necessarily the final word on the meaning of the Constitution and could make errors, as it did in Dred Scott . All the branches must interpret the document in the exercise of their constitutional powers for the ends of liberty, equality, and justice.

The Supreme Court, Incorporation, and the Bill of Rights from the Twentieth Century to Today

The due process clause of the 14th Amendment led to the incorporation of the Bill of Rights, which meant that the Supreme Court applied the Bill of Rights to the states. During the first half of the twentieth century, the Court incorporated the Bill of Rights selectively in a few cases. For example, it extended the First Amendment right of free speech against state violation in Gitlow v. New York (1925) and freedom of the press in Near v. Minnesota (1931).

The popular understanding of the Court as the protector of individual rights became widely accepted during the Warren Court (1953–1969) and after. Many of the decisions were controversial because Americans viewed the issues involved differently. Some Americans questioned whether the Court was the appropriate branch to define rights or whether it should be left to the other branches of government or the amendment process. The Court also controversially overturned the laws and common values of states and local communities for one uniform, national standard.

The Court expanded the application of the Bill of Rights (incorporated) to the states in several areas and protected civil liberties in new ways. For example, the Court banned school-sponsored prayer and Bible reading in public schools in Engel v. Vitale (1962) and Abington School District v. Schempp (1963), respectively, for violating the establishment clause of the First Amendment.

The Court protected the rights of students in local public schools in other ways. In Tinker v. Des Moines (1969), the Court decided that students had the right of free speech to protest the Vietnam War under the First Amendment. The students had worn black armbands to protest the war despite a warning not to, and the school suspended them.

The Court protected the rights of the accused in major cases during the mid-1960s. The Court stated that criminal defendants are entitled to an attorney in Gideon v. Wainwright (1963). The Court excluded, or left out, illegally seized criminal evidence under the Fourth Amendment in Mapp v. Ohio (1964). In Miranda v. Arizona (1966), the Court decided that police officers must provide a “Miranda warning” informing accused people of their rights before questioning them about a crime.

The Court also made key decisions on moral issues that were fiercely debated in American society. In Griswold v. Connecticut (1965), the Court asserted that a “right to privacy” exists and is implicit in several amendments of the Bill of Rights. Therefore, the Court declared a state law banning birth control unconstitutional. The decision was a precedent for the use of the right to privacy argument in Roe v. Wade (1973), which established a right to abortion.

In recent decades, the Court helped protect gay rights. In Lawrence v. Texas (2003), the Court invalidated state laws banning homosexual acts. In Obergefell v. Hodges (2015), the Court made gay marriage a right when it required states to recognize the same-sex marriages of other states.

The Supreme Court has left a mixed record regarding its decisions related to the Bill of Rights. On one hand, Court rulings have protected what seem like reasonable and fundamental individual liberties. On the other hand, the Court has made rulings on cultural, social, and moral disputes that often did little to resolve the wider debate over the issues and maybe even fueled division among Americans. In recent decades, for better or worse, Americans have increasingly looked to the Supreme Court as the protector of civil liberties and the final word on the Constitution.

Related Content

Background Essay Questions: The Supreme Court and the Bill of Rights

Supreme Court Case Scenarios: How Would You Decide?

The Supreme Court and the Bill of Rights

How has the Supreme Court decided cases in controversies related to the Bill of Rights?

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4.4: The Structure and Functions of the Judicial Branch

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Where the Executive and Legislative branches are elected by the people, members of the Judicial Branch are appointed by the President and confirmed by the Senate.

Article III of the Constitution, which establishes the Judicial Branch, leaves Congress significant discretion to determine the shape and structure of the federal judiciary. Even the number of Supreme Court Justices is left to Congress — at times there have been as few as six, while the current number (nine, with one chief justice and eight associate justices) has only been in place since 1869.

The Creation of the Supreme Court, Lower Courts, Terms of Judges and Pay

The Judicial Power of the United States was intended to be placed solely in the hands of the Supreme Court with Congress being allowed to establish a system of lower courts as it deemed necessary. In 1789, Congress did just that when it created the United States Court System. This act created three sets of Constitutional courts starting with District Courts that would hear both criminal and civil cases of a federal nature, a set of intermediate “Circuit” courts of appeal which would review cases coming from the District Courts and the Supreme Court acting as the highest court in the land. With few exceptions, federal judges hold their Offices for life and can only be removed through a process of impeachment. Judges must be paid for their services and whenever they receive a pay raise, their pay may not be reduced as long as they stay in office. This protects the judges from being manipulated through their salary.

Judicial Authority and Jurisdiction for the Federal Courts

Section 2 of Article III describes the jurisdiction of the federal courts. Jurisdiction is the power of a court to hear a case, so this section tells us what kinds of cases the Supreme Court and other federal courts will hear.

• All cases that arise under the Constitution, the laws of the United States or its treaties.
• All cases that affect American Ambassadors, public officials, and public consuls.
• All cases of admiralty and maritime jurisdiction (cases that involve national waters).
• All cases in which the United States is a party (when a state, a citizen or a foreign power sues the national government).
• All cases that involve one or more states, or the citizens of different states.
• All cases between citizens of the same state who are claiming land under grants from other states.

The 11th Amendment changed some provisions of this section by placing limits on the ability of individuals to sue a state.

Original Jurisdiction

Section 2 also notes that the Supreme Court will have original jurisdiction in any case dealing with or affecting an Ambassador, Public Minister or Consul, or in which a state is a party.

Original jurisdiction is the power of a court to hear a case first. This means that, in any case dealing with these groups of public servants, the Supreme Court must hear the case first, and no lower court can do so. The number of original jurisdiction cases heard by the United States Supreme Court is very low; less than 1% of all their cases.

In addition to these original jurisdiction cases, the Supreme Court will have appellate jurisdiction in all other cases. Appellate jurisdiction is the power to hear a case AFTER a lower court has already decided the case. That is what it means to hear the case on appeal. The vast majority cases heard by the United States Supreme Court today are appellate cases.

The Supreme Court is the “court of last resort” that is, the final court in which a citizen, state or other entity can have their case heard. The Supreme Court is also the only federal court to have BOTH original and appellate jurisdiction.

Right to a Jury Trial in all Cases but Impeachment

Article III Section 2 also states that in the trial of all crimes, except impeachment, the accused has a right to a trial by jury. These trials are held in the state where the crime is committed. Impeachment is the process described in the Constitution by which high officers of the U.S. government may be accused, tried, and removed from office for misconduct; the House of Representatives is responsible for the inquiry and formal accusation, and the Senate is responsible for the trial. The right to a trial by jury is also expressly listed in the 6 th and 7 th Amendments of the Constitution (in the Bill of Rights).

Section 3 of Article III deals with the crime of treason, first by giving us a definition of the crime, then by telling us how the crime will be tried.

Treason is defined in the Constitution as levying war against the United States, or giving aid to our enemies. This is the only crime actually defined in the Constitution. Why? The founders were afraid that people could be charged with treason, when they were really just engaging in dissent. Part of living in a democracy is the ability we all have to disagree with our government. If simply speaking out against the government were treason, then the government could quash all dissent, and we would not have a free country. By defining treason in the Constitution, the founders made sure that those accused of treason had to do more than simply say things our government or leaders didn’t like.

To be guilty of treason, they had to take actual action (make war against our government or directly help our enemies). This protects our freedom of speech from being limited. Section 3 tells us that, to be convicted of treason, there must be two witnesses to the same overt act, or that the person committing treason must confess in open court. Congress has the power to determine the punishment for treason, which ranges from five years in prison and a $10,000 fine, up to life in prison or death.

The View of the Founders on an Independent Judiciary

The major Constitutional Convention debate was over the degree of court independence. The Federalists believed the new Supreme Court would be too weak, and the Anti Federalists believed it would be too strong. But there is little doubt that both sides intended the judicial branch to be the least powerful. In Federalist 78, Alexander Hamilton argued:

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 efficacy of its judgments.

But the power of the judicial branch (through its use of Judicial Review) has risen since its creation and today, it wields great power and influence through its actions and decisions

Four Types of Law

There are four basic types of law in the federal legal system. These include:

Source: https://www.law.upenn.edu/live/files/226-research-guide-federal-court-mappdf Independent Judiciary

Independent Judiciary is is the degree to which the courts and the judges who interpret the law are allowed to make and enforce decisions without intervention from other branches of the government. For the justice system to be impartial, it must also remain independent (by a separation of powers).

Judicial review is the power of the courts to overturn laws or other actions of Congress and the Executive Branch based on their constitutionality. This principle allows courts to establish quasi-legislation (legislation created from bench) which often leads to accusations of “judicial activism”. The Constitution is actually silent on subject of judicial review so the Supreme Court gave itself and lower courts power of judicial review in case of Marbury vs. Madison . Judicial review is rarely used. In fact the Court has struck down only around 170 national laws (less than .25 percent of all passed) and around 1400 state laws in its more than 200 year history.

Judicial Interpretation

Judicial interpretation is the manner or basis used to interpret a law. Constitutional interpretation involves deciding whether or not a law should stand solely on the basis of its constitutionality (whether or not it violates a particular part of the Constitution). Statutory interpretation involves applying both national and state law to a specific case to determine whether the law(s) actually apply to the case brought in front of the court and whether or not those laws are being applied properly in that specific case. Constitutional interpretation has a much broader scope than the very specific and minute details that are considered in the case of statutory interpretation.

Judicial Activism

Judicial activism is when the court strikes down a duly enacted law created by Congress. That is its FORMAL meaning, its descriptive meaning. But in the course of politics, commentators and critics often call a decision to strike down a law “judicial activism” if they don’t like the court’s action. If they DO like the court’s decision, they don’t use that term.

Court Fundamentals

In an adversarial judicial system such as we have in the United States, the plaintiff is the party that is bringing the case before the court as a complaint or accusation against another party. The defendant is the party that has been accused of harming the plaintiff in some way. In civil cases, the plaintiff is the injured party and the defendant is the party that has been accused of doing harm to the plaintiff. In a criminal case, the plaintiff is always the government (either the state or the United States government) and the defendant is the party accused of violating the law. In both civil and criminal cases, the burden of proof is on the plaintiff and the defendant is entitled to confront his/her accusers and to a vigorous defense against the charges.

In order to win a civil case, the plaintiff must prove the case “beyond a preponderance of the evidence” meaning the evidence presented weighs more on his/her side in the eyes of the jury or the judge (if the trial is a bench trial where a jury has been waived). In a criminal case, the state must prove its case “beyond a reasonable doubt,” meaning there is no doubt in the minds of the jury that the defendant committed the crime he/she is accused of. This is a much higher burden of proof.

In order to smoothly allow cases to flow through the system, plea bargaining often occurs before court verdicts are ever reached. This happens when the defendant is allowed to plead guilty to a lesser charge and/or receive a lighter punishment in exchange for his/her plea. In such a case, the defendant must testify to his/her crimes in open court and the defendant also waives the right to an appeal.

Deferred Adjudication

Deferred adjudication occurs when the court delays sentencing pending terms of probation. When the defendant completes all terms of probation, charges may be expunged (dropped) and/or the jail time may be eliminated or reduced.

The adversarial judicial system gives both sides of a case access to the relevant information. Each of the parties must openly share any evidence or relevant information with each other. This process is called disclosure.

Double Jeopardy and Civil/Dual (Federal and State) Prosecution Cases

Currently, people can face a criminal trial and a civil trial for the same incident without triggering the Constitution’s ban on “double jeopardy” which is forbidden in the Constitution. In a similar vein, a person can be tried at both the federal and state levels for the same crime (because of its two different laws and jurisdictions).

That’s what the law says. Is the law right? What are the arguments for and against being able to be tried both in civil and criminal court?

Principles of Common Law

Common Law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. This law is deeply rooted in the respect for the decisions and actions of previous courts and the expectation that when a ruling is made by the courts it should be respected and applied by future courts.

• Precedent (stare decisis) means “let the decision stand” in Latin. This is the principle that previously decided cases/sets of decisions should serve as a guide for future cases on the same topic. The Supreme Court strongly honored precedent in first 100 years of its existence but many decisions in the past 100 years have demonstrated modern court is more willing to overturn precedent in order to correct for violations of human rights, civil rights or states’ rights.
• Jurisdiction is the power of a court to hear a case and to make a binding legal judgment or decision based on the facts presented to the court. The Constitution and the Federal Judiciary Act of 1789 both establish the jurisdiction of the federal courts in regards to what cases they may hear and how those cases are selected or assigned to the courts.
• Collusion is the requirement that litigants in the case cannot want the same outcome
• Standing is when a petitioner has a legitimate basis for bringing the case
• Mootness is the requirement that controversy must still be relevant when the Court hears the case
• Ripeness is the opposite of mootness; with ripeness, the controversy has not started yet.

For more information on the fundamentals of common law, go to:

www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf

Limitations on the Court's Power

The power of the Supreme Court is great but ultimately it is only a court of law. The Supreme Court does not have the power to initiate its own cases. Cases can only come to it from a lower court (except in the limited area of so-called original jurisdiction). Therefore, a justice cannot select a law or policy with which he/she disagrees and bring it to court for a ruling.

Once a decision has been made, the Supreme Court does not have the ability to enforce its rulings. This can only be done by the Executive and Legislative branches of government. When segregation in southern schools was declared unconstitutional in 1954, nothing happened in the south. It took until 1957 for the decision to actually be enforced. Though the Supreme Court had initiated a new approach in southern schools, no-one in the south wanted to enforce it and only the Federal government could do this by the use of troops.

The Supreme Court needs to maintain its position within America as the highest judicial body in the nation. Therefore it does need to be seen working as a partner with the Legislative and Executive branches as a conflict between the three would invariably diminish their standing in the eyes of the public. It is rare that the Court will totally overturn an act passed by the Legislative. The Court might seek to change parts of it piecemeal and over a period of time as this would appear to be less provocative towards an elected body. The ability of the Supreme Court to interpret the Constitution is limited as most parts of it are written in a very clear and concise way which does not leave them open to interpretation.

The greatest limitation to the Supreme Court are the politicians themselves. As the Court cannot enforce its decisions, it relies on the Federal authorities to do this. These politicians are supportive of the Constitution and even Roosevelt never thought about operating without a Supreme Court regardless of his clashes with it. Politicians must be willing to listen and abide by its decisions. What could the Supreme Court do if these politicians refused to abide by its decisions?

Power of the Supreme Court

In Federalist No. 78, Alexander Hamilton described the courts as “the least dangerous” branch of government. Yet, they do possess considerable power. For example, because of the Court’s 5–4 decision in 2002, the more than seven million public high school students engaged in “competitive” extracurricular activities—including cheerleading, Future Farmers of America, Spanish club, and choir—can be required to submit to random drug testing. Decisions such as these have proven divisive and have led to a belief by many that the Supreme Court has recently exceeded its Constitutional authority and purpose.

Discussion Question: "Do you think the Supreme Court's power has grown too large?

Many have argued that since the 1950s, the Supreme Court has changed from “the Least Dangerous Branch” to an “Imperial Judiciary.” Do you think the Supreme Court’s power has grown too large? Read the articles below and respond to this question.

www.voanews.com/content/a-13-2005-03-07-voa48-67525242/387028.html

http://www.nationalaffairs.com/publications/detail/the-most-dangerous-branch

http://www.heritage.org/research/reports/2012/01/what-is-the-proper-role-of-the-courts

http://www.outsidethebeltway.com/still_the_least_dangerous_branch/

Judicial Review

The federal courts’ most significant power is judicial review. Exercising it, they can refuse to apply a state or federal law because, in their judgment, it violates the US Constitution.

Marbury v. Madison

Judicial review was asserted by the U.S. Supreme Court in 1803 in the decision of Chief Justice John Marshall in the case of Marbury v. Madison (5 US 137, 1803).

After losing the election of 1800, John Adams made a flurry of 42 appointments of justices of the peace for Washington, D.C. in the last days of his presidency. His purpose in doing so was to ensure that the judiciary would remain dominated by his Federalist party. The Senate approved the appointments, and Secretary of State John Marshall stamped the officials’ commissions with the Great Seal of the United States. But no one in the outgoing administration delivered the signed and sealed commissions to the appointees. The new president, Thomas Jefferson, instructed his secretary of state, James Madison, not to deliver them. One appointee, William Marbury, sued, asking the Supreme Court to issue a writ of mandamus, a court order requiring Madison to hand over the commission.

The case went directly to the Supreme Court under its original jurisdiction. John Marshall was now chief justice, having been appointed by Adams and confirmed by the Senate. He had a dilemma: a prominent Federalist, he was sympathetic to Marbury, but President Jefferson would likely refuse to obey a ruling from the Court in Marbury’s favor. However, ruling in favor of Madison would permit an executive official to defy the provisions of the law without penalty.

Marshall’s solution was a political masterpiece. The Court ruled that Marbury was entitled to his commission and that Madison had broken the law by not delivering it. But it also ruled that the part of the Judiciary Act of 1789 granting the Court the power to issue writs of mandamus was unconstitutional because it expanded the original jurisdiction of the Supreme Court beyond its definition in Article III; this expansion could be done only by a constitutional amendment. Therefore, Marbury’s suit could not be heard by the Supreme Court. The decision simultaneously supported Marbury and the Federalists, did not challenge Jefferson, and relinquished the Court’s power to issue writs of mandamus. Above all, it asserted the prerogative of judicial review for the Supreme Court.

For 40 years after Marbury, the Court did not overturn a single law of Congress. And when it finally did, it was the Dred Scott decision, which dramatically damaged the Court’s power. The Court ruled that people of African descent who were slaves (and their descendants, whether or not they were slaves) were not protected by the Constitution and could never be U.S. citizens. The Court also held that the U.S. Congress had no authority to prohibit slavery in federal territories.

The pace of judicial review picked up in the 1960s and continues to this day. The Supreme Court has invalidated an average of 18 federal laws per decade. The Court has displayed even less compunction about voiding state laws. For example, the famous Brown v. Board of Education of Topeka, Kansas desegregation case overturned statutes from Kansas, Delaware, South Carolina, and Virginia that either required or permitted segregated public schools. The average number of state and local laws invalidated per decade is 122, although it has fluctuated from a high of 195 to a low for the period 2000–2008 of 34.

Judicial review can be seen as reinforcing the system of checks and balances. It is a way of policing the actions of Congress, the president, and state governments to make sure that they are in accord with the Constitution. But whether an act violates the Constitution is often sharply debated, not least by members of the Court.

Constraints on Judicial Power

Samuel Chase (April 17, 1741 – June 19, 1811) was an associate justice of the United States Supreme Court and earlier was a signatory to the United States Declaration of Independence as a representative of Maryland. Early in life, Chase was a "firebrand" states-righter and revolutionary. His political views changed over his lifetime, and, in the last decades of his career, he became well known as a staunch Federalist and was impeached for allegedly letting his partisan leanings affect his court decisions. He was acquitted by the Senate and was NOT removed from office. But he remains the only Supreme Court Justice to have articles of impeachment drafted against him by the House. His is an example of philosophical and political differences that remain today.

At question then, as today, is the issue of judicial authority and power. The American system of government relies on specific checks and balances of power so as to balance the authority of the three branches of government. In this section, we will examine three types of constraints on the power of the Supreme Court and lower court judges. These are precedents, internal limitations, and external checks.

Ruling by Precedent

Judges look to precedent, previously decided cases, to guide and justify their decisions. They are expected to follow the principle of stare decisis , which is Latin for “to stand on the decision.” They identify the similarity between the case under consideration and previous ones. Then they apply the rule of law contained in the earlier case or cases to the current case. Often, one side is favored by the evidence and the precedents.

Precedents, however, have less of an influence on judicial power than would be expected. According to a study, “justices interpret precedent in order to move existing precedents closer to their preferred outcomes and to justify new policy choices.”

Precedents may erode over time. The 1954 Brown school desegregation decision overturned the 1896 Plessy decision that had upheld the constitutionality of separate but equal facilities and thus segregation. Or they may be overturned relatively quickly. In 2003, the Supreme Court by 6–3 struck down a Texas law that made homosexual acts a crime, overruling the Court’s decision seventeen years earlier upholding a similar antisodomy law in Georgia. The previous case “was not correct when it was decided, and it is not correct today,” Justice Kennedy wrote for the majority.

Judges may disagree about which precedents apply to a case. Consider students wanting to use campus facilities for prayer groups: if this is seen as violating the separation of church and state, they lose their case; if it is seen as freedom of speech, they win it. Precedents may allow a finding for either party, or a case may involve new areas of the law.

Internal Limitations

For the courts to exercise power, there must be a case to decide: a controversy between legitimate adversaries who have suffered or are about to suffer in some way. The case must be about the protection or enforcement of legal rights or the redress of wrongs. Judges cannot solicit cases, although they can use their decisions to signal their willingness to hear (more) cases in particular policy areas.

Judges, moreover, are expected to follow the Constitution and the law despite their policy preferences. In a speech to a bar association, Supreme Court Justice John Paul Stevens regretted two of his majority opinions, saying he had no choice but to uphold the federal statutes. [8] That the Supreme Court was divided on these cases indicates, however, that some of the other justices interpreted the laws differently.

A further internal limitation is that judges are obliged to explain and justify their decisions to the courts above and below. The Supreme Court’s written opinions are subject to scrutiny by other judges, law professors, lawyers, elected officials, the public, and, of course, the media.

External Checks on Power

The executive and legislative branches can check or try to check judicial power. Through their authority to nominate federal judges, presidents influence the power and direction of the courts by filling vacancies with people likely to support their policies.

They may object to specific decisions in speeches, press conferences, or written statements. In his 2010 State of the Union address, with six of the justices seated in front of him, President Obama criticized the Supreme Court’s decision that corporations have a First Amendment right to make unlimited expenditures in candidate elections. [9]

Presidents can engage in frontal assaults. Following his overwhelming reelection victory, President Franklin D. Roosevelt proposed to Congress in February 1937 that another justice be added to the Supreme Court for each sitting justice over the age of seventy. This would have increased the number of justices on the court from nine to fifteen. His ostensible justification was the Court’s workload and the ages of the justices. Actually, he was frustrated by the Court’s decisions, which gutted his New Deal economic programs by declaring many of its measures unconstitutional.

The president’s proposal was damned by its opponents as unwarranted meddling with the constitutionally guaranteed independence of the judiciary. It was further undermined when the justices pointed out that they were quite capable of coping with their workload, which was not at all excessive. Media coverage, editorials, and commentary were generally critical, even hostile to the proposal, framing it as “court packing” and calling it a “scheme.” The proposal seemed a rare blunder on FDR’s part. But while Congress was debating it, one of the justices shifted to the Roosevelt side in a series of regulatory cases, giving the president a majority on the court at least for these cases. This led to the famous aphorism “a switch in time saves nine.” Within a year, two of the conservative justices retired and were replaced by staunch Roosevelt supporters.

Congress can check judicial power. It overcomes a decision of the Court by writing a new law or rewriting a law to meet the Court’s constitutional objections without altering the policy. It can threaten to—and sometimes succeed in—removing a subject from the courts’ jurisdiction, or propose a constitutional amendment to undo a Court decision.

Indeed, the first piece of legislation signed by President Obama overturned a 5–4 Supreme Court 2007 decision that gave a woman a maximum of six months to seek redress after receiving the first check for less pay than her peers. [10] Named after the woman who at the end of her nineteen-year career complained that she had been paid less than men, the Lilly Ledbetter Fair Pay Act extends the period to six months after any discriminatory paycheck. It also applies to anyone seeking redress for pay discrimination based on race, religion, disability, or age.

Impeachment

The Constitution grants Congress the power to impeach judges. But since the Constitution was ratified, the House has impeached only eleven federal judges, and the Senate has convicted just five of them. They were convicted for such crimes as bribery, racketeering, perjury, tax evasion, incompetence, and insanity, but not for wrongly interpreting the law.

The Supreme Court may lose power if the public perceives it as going too far. Politicians and interest groups criticize, even condemn, particular decisions. They stir up public indignation against the Court and individual justices. This happened to Chief Justice Earl Warren and his colleagues during the 1950s for their school desegregation and other civil rights decisions.

The controversial decisions of the Warren Court inspired a movement to impeach the chief justice. Do you think the founding fathers intended for the judiciary to be threatened with removal if Congress did not agree with their decisions? Explain your answer.

How the decisions and reactions to them are framed in media reports can support or undermine the Court’s legitimacy (Note the section below: "Comparing Content").

Comparing Content

Brown v. Board of Education of Topeka, Kansas

How a decision can be reported and framed differently is illustrated by news coverage of the 1954 Supreme Court school desegregation ruling.

The New York Times of May 18, 1954, presents the decision as monumental and historic, and school desegregation as both necessary and desirable. Southern opposition is acknowledged but downplayed, as is the difficulty of implementing the decision. The front-page headline states “High Court Bans School Segregation; 9–0 Decision Grants Time to Comply.” A second front-page article is headlined “Reactions of South.” Its basic theme is captured in two prominent paragraphs: “underneath the surface…it was evident that many Southerners recognized that the decision had laid down the legal principle rejecting segregation in public education facilities” and “that it had left open a challenge to the region to join in working out a program of necessary changes in the present bi-racial school systems.”

There is an almost page-wide photograph of the nine members of the Supreme Court. They look particularly distinguished, legitimate, authoritative, decisive, and serene.

In the South, the story was different. The Atlanta Constitution headlined its May 18, 1954, story “Court Kills Segregation in Schools: Cheap Politics, Talmadge Retorts.” By using “Kills” instead of the Times’s “Bans,” omitting the fact headlined in the Times that the decision was unanimous, and including the reaction from Georgia Governor Herman E. Talmadge, the Constitution depicted the Court’s decision far more critically than the Times. This negative frame was reinforced by the headlines of the other stories on its front page. “Georgia’s Delegation Hits Ruling” announces one; “Segregation To Continue, School Officials Predict” is a second. Another story quotes Georgia’s attorney general as saying that the “Ruling Doesn’t Apply to Georgia” and pledging a long fight.

The Times’ coverage supported and legitimized the Supreme Court’s decision. Coverage in the Constitution undermined it.

External pressure is also applied when the decisions, composition, and future appointments to the Supreme Court become issues during presidential elections. [11] In a May 6, 2008, speech at Wake Forest University, Republican presidential candidate Senator John McCain said that he would nominate for the Supreme Court “men and women with…a proven commitment to judicial restraint.” Speaking to a Planned Parenthood convention on July 17, 2007, Senator Barack Obama identified his criteria as “somebody who’s got the heart, the empathy, to recognize what it’s like…to be poor or African American or gay or disabled or old.”

Judges as Policymakers

Judges have power because they decide cases: they interpret the Constitution and laws, and select precedents. These decisions often influence, even make, public policy and have important ramifications for social conflict. For example, the Supreme Court has effectively established the ground rules for elections. In 1962 it set forth its “one person, one vote” standard for judging electoral districts. It has declared term limits for members of Congress unconstitutional. It has upheld state laws making it extremely difficult for third parties to challenge the dominance of the two major parties.

Judicial Philosophies

How willing judges are to make public policy depends in part on their judicial philosophies. Some follow judicial restraint , deciding cases on the narrowest grounds possible. In interpreting federal laws, they defer to the views expressed in Congress by those who made the laws. They shy away from invalidating laws and the actions of government officials. They tend to define some issues as political questions that should be left to the other branches of government or the voters. When the Constitution is silent, ambiguous, or open ended on a subject (e.g., “freedom of speech,” “due process of law,” and “equal protection of the laws”), they look to see whether the practice being challenged is a long-standing American tradition. They are inclined to adhere to precedent .

Judicial restraint is sometimes paired with strict constructionism . Judges apply the Constitution according to what they believe was its original meaning as understood by a reasonable person when the Constitution was written. Other judges follow a philosophy of judicial activism (although they may not call it that). Activist judges are willing to substitute their policy views for the policy actions or inaction of the other branches of government.

Judicial activism is often paired with loose constructionism, viewing the Constitution as a living document that the founders left deliberately ambiguous. In interpreting the Constitution, these judges are responsive to what they see as changes in society and its needs. A plurality of the Supreme Court found a right to privacy implicit in the Constitution and used it to overturn a Connecticut law prohibiting the use of contraceptives. [15] The justices later used that privacy right as a basis for the famous Roe v. Wade decision, “discovering” a woman’s constitutional right to an abortion.

The distinction between judicial restraint and strict constructionism on the one hand and judicial activism and loose constructionism on the other can become quite muddy. In 1995, the Supreme Court, by a 5–4 vote, struck down the Gun-Free School Zone Act—an attempt by Congress to keep guns out of schools. [16] The ruling was that Congress had overstepped its authority and that only states had the power to pass such laws. This decision by the conservative majority, interpreting the Constitution according to what it believed was the original intentions of the framers, exemplified strict constructionism. It also exemplified judicial activism: for the first time in fifty years, the Court curtailed the power of Congress under the Constitution’s commerce clause to interfere with local affairs. [17]A 5–4 conservative majority has also interpreted the Second Amendment to prohibit the regulation of guns. [18] This decision, too, could be seen as activist.

The Warren Court and Civil Rights

The Earl Warren Court of the 1950s and 1960s made some of the most important civil rights decisions in American History including Brown v. Board of Education , Gideon v. Wainwright, and Cooper v. Aaron , which were unanimously decided, as well as Abington School District v. Schempp, and Engel v. Vitale.

Each case striking down religious recitations in schools with only one dissent. In an unusual action, the decision in Cooper was personally signed by all nine justices, with the three new members of the Court adding that they supported and would have joined the Court's decision in Brown v. Board . But this court’s decisions also proved to be very divisive at a time in our history when the Civil Rights movement was gaining steam. The Warren Court is an example of how the Supreme Court can use its powers of judicial review to institute policy (civil rights and civil liberties) when the legislature is unable or unwilling to do so.

Research Topic:

Conduct Research on the Earl Warren Court and its important decisions then discuss its legacy.

Do you believe this court exemplifies judicial activism or judicial restraint? What impact did the court have on our lives today? Would you describe this court’s impact as positive or negative? Explain your answer.

One doesn’t have to believe that justices are politicians in black robes to understand that some of their decisions are influenced, if not determined, by their political views. [19] Judges appointed by a Democratic president are more liberal than those appointed by a Republican president on labor and economic regulation, civil rights and liberties, and criminal justice. [20]Republican and Democratic federal appeals court judges decide differently on contentious issues such as abortion, racial integration and racial preferences, church-state relations, environmental protection, and gay rights.

On rare occasions, the Supreme Court renders a controversial decision that graphically reveals its power and is seen as motivated by political partisanship. In December 2000, the Court voted 5–4, with the five most conservative justices in the majority, that the Florida Election Code’s “intent of the voter” standard provided insufficient guidance for manually recounting disputed ballots and that there was no time left to conduct recounts under constitutionally acceptable standards. This ensured that Republican George W. Bush would become president.

The decision was widely reported and discussed in the media. Defenders framed it as principled, based on legal considerations. Critics deplored it as legally frail and politically partisan. They quoted the bitter comment of dissenting Justice Stevens: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

Study/Discussion Questions

• What role does judicial review play in our legal system? Why might it be important for the Supreme Court to have the power to decide if laws are unconstitutional?
• In Marbury v. Madison , how did Chief Justice Marshall strike a balance between asserting the Supreme Court’s authority and respecting the president’s authority? Do you think justices should take political factors into account when ruling on the law?
• Why do you think it might be important for judges to follow precedent? What do you think would happen if judges decided every case differently?
• Which of the four judicial philosophies described in the text makes the most sense to you? What do you think the advantages and disadvantages of that philosophy might be?

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The first amendment, james madison and the judicial power.

By Jack Rakove [1] ,  William Robertson Coe Professor of History and American Studies and professor of political science and (by courtesy) law at Stanford University

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Introduction

Asking what James Madison would think about some aspect of modern political life is always a challenging exercise. The problem is not only that no time machine exists to pluck Madison out of his era and plop him down in ours. It is also that Madison was a deeply empirical and creative thinker whose ideas were never frozen into one perfect synthesis, and a political actor whose thoughts reflected his rich experience. If one asks, What would Madison do ?, one has to give Madison the same historical knowledge and political experience that we enjoy, and then let him make up his own mind—an intellectual challenge that lies beyond our own poor powers to add or detract.

A second problem complicates asking how Madison thought about issues relating to the judiciary. Two overarching concerns drove his constitutional thinking in the 1780s. One involved the structure of the federal system and the problem of getting the states to perform their national duties. The other concerned the nature of collective deliberation and legislative decision-making. Madison’s seminal experiences in the 1770s and 1780s were primarily legislative in nature. By contrast, only after 1793 did he turn his critical attention to considering the role of the executive in republican governments. His interest in judicial power also took some time to develop. Many of his most telling comments on this subject were written only after 1819, in response to the key decisions in McCulloch v. Maryland (1819) and Cohens v. Virginia (1821).

Yet Madison was also a close student of Anglo-American law; in Mary Sarah Bilder’s phrase, he was something of a “demi-lawyer.” [2] In his first sustained discussion of American republican governments in 1785, Madison observed that “ The Judiciary Department merits every care. Its efficacy is demonstrated in G. Britain where it maintains private Right against all the corruptions of the two other departments & gives a reputation to the whole Government which it is not in itself entitled to.” [3] At the Federal Convention, he proposed and vigorously supported the idea of giving the judiciary an active role in legislation. Although he worried that judges would never possess the same political advantages as legislators, he believed that the Supreme Court would play a critical role in maintaining the stability of the entire federal system. The brief statement on this point in Federalist 39 remained an orthodoxy to which he still adhered in the 1830s. His criticisms of the Marshall Court notwithstanding, Madison believed that a reliance on the authority of the Supreme Court would offer the South a lasting legal security against northern domination.

Five postulates about Madison as a constitutional thinker

Before examining Madison’s ideas about the judiciary, it would be helpful to list five essential elements of his constitutional thinking.

1. Madison was first and foremost a student of collective political deliberation. His formative political experiences were his three-and-a-half uninterrupted years of service in the Continental Congress (March 1780-October 1783) and the three consecutive terms he then spent representing Orange County in the Virginia House of Delegates (1784-1786). The problem of improving the quality of legislative deliberation and checking the misuse of legislative power dominated his political thinking, at least down to 1793 and again during the two decades of his retirement at Montpelier (1817-1836). His ideas about judicial power were largely derivative of his desire to curb the “impetuous vortex” of legislative activity.

2. Although Madison shared the American revolutionaries’ commitment to the principle of separation of powers, his approach to this subject was never rigid or doctrinaire. As he observed in Federalist 37, “Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzles the greatest adepts in political science” (a group in which Madison counted himself). Constitutional statements affirming a rigid separation of powers were just that: so many “parchment barriers” that were never self-enforcing. A general adherence to the principle of separated powers did not preclude creative or pragmatic adaptations that would enable the pursuit of the public good and the protection of private rights, Madison’s dual goals of constitutional government.

3. Madison knew that in republican governments, public opinion and popular will were the forces that ultimately drove political decision-making. Those forces were most powerfully expressed in the legislature, and especially in its lower house, the institution that represented the people most directly. To control its dominant political influence and legislative power, expedients might be developed to fortify and unite the weaker institutions, perhaps by linking the presidency with either the Senate or the judiciary. But the best solution of all was the extra-institutional one proposed in Federalist 10 and restated in Federalist 51: to expand the republic to take in a “multiplicity of factions” or interests, so that the formation of the wrong kinds of popular majorities would grow more difficult.

4. It also follows that the most dangerous political forces would coalesce at the state and local levels of government. That was where “factious majorities” could more readily form, and where the plenary authority of state legislatures would leave rights vulnerable to violation. Madison’s initial skepticism about amending the Constitution to include the Bill of Rights presumed that a declaration of rights would do little good unless it applied directly against the states. He also doubted that judges would have the political courage to apply federal constitutional guarantees against the mobilized will of public opinion, again particularly within the states. But he never doubted the moral value of such an ambition, and in principle he would have welcomed the growth of modern rights-based jurisprudence through the “incorporation” against the states of the guarantees of Section 1 of the Fourteenth Amendment.

5. Finally, Madison recognized that the ongoing task of making the constitutional system work required a patient willingness to sort out its complexities. As he first explained in Federalist 37, political phenomena were inherently difficult to classify, describe, and delineate. Grand theoretical statements or simple invocations of popular or state sovereignty would not do this work. The American system was a real “non-descript”: it had no true precedents and could only be analyzed inductively, in its messy details.

Save for postulates 4 and 5, the judiciary does not hold a commanding place in these discussions. Yet Madison’s thoughts on the subject still offer important clues to his thinking and to our notions of Madisonian constitution that we often invoke but rarely describe in any serious detail (beyond citing Federalist Nos. 10 and 51).

Early thoughts about the judicial power

When Madison praised the “efficacy” of the British judiciary in 1785, he reflected the prevailing American belief that the independence that Parliament had gained in the Glorious Revolution had since been corrupted by the modes of patronage and influence that allowed the Crown to control Parliament. Parliament could not fulfill its prescribed duty as the embodiment of legislative supremacy because turned too many members of its members had become “placemen” who served as the willing “tools” of the reigning ministry. Madison’s concerns with the role of the judiciary in American republican constitutions were also driven by his perception of the misuse of legislative power. But he was troubled, not by the corruption of American legislatures, but by the defects of deliberation and decision-making that lawmakers routinely revealed.

These defects were the subject of the four concluding items in his seminal April 1787 memorandum on the Vices of the Political System of the United States. Those items addressed the “multiplicity,” “mutability,” “injustice,” and “impotence” of the “laws of the States.” [4] Madison conceded that the burden of waging a revolutionary war had placed an unprecedented burden on their legislatures, and that allowance had to be made for “the situation in which the revolution has placed us.” Yet the problems he identified could not be reduced to that factor alone. “Try the Codes of the several States by this test,” he complained, “and what a luxuriancy of legislation do they present.” Laws enacted so hastily led to their repeal or supersession even “before any trial can have been made of their merits.”

Worse than the “want of wisdom” that these impulsive processes revealed was the “still more alarming” problem of legislative injustice, “not merely because it is a greater evil in itself, but because it brings into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.” Madison offered two diagnoses for this fundamental problem. The first involved the  “ambition” and “personal interest” that distorted the decisions of many lawmakers, including those newcomers who fell prey to the manipulations of factious leaders. The second and far more important concerned  “the people themselves,” particularly within the boundaries of individual states , where self-interested and passionate majorities could too easily form.

Madison’s solutions to these problems were both institutional and political. On the institutional side, he wanted to improve the quality of legislative deliberation: by giving the amateur lawmakers who staffed most assemblies longer terms, so they would learn their business better; by constituting select committees to serve as veteran drafters of bills; and by creating genuine senates possessing the confidence to check the impulses of the lower house. On the political side, as he famously proposed in Federalist Nos. 10 and 51, the best cure for the “mischiefs of faction” would lie in creating an “extended republic.” This social complexity would discourage the wrong kinds of factious majorities from forming nationally and also produce a more qualified class of national lawmakers superior to the lesser lights who flourished within the states.

Prior to the Convention, Madison initially gave the judiciary little thought. He was not even sure whether there should be a separate national judiciary. Some national courts of appeal were needed for “cases to which foreigners or inhabitants of other States may be parties,” but perhaps all else that was required was to have state judges swear “fidelity” to the “general” constitution. [5] His thinking did evolve in the succeeding weeks. The Virginia Plan provided for the establishment of “one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature.” Judges would enjoy tenure during good behavior, following the rule set in the parliamentary Act of Settlement of 1701, and their salaries would not be subject to legislative alteration. The jurisdiction of national courts would broadly cover “questions which may involve the national peace and harmony,” a tentative yet still quite open-ended grant of authority. [6]

Here was a preliminary basis for making the judiciary an independent department. Yet Madison’s most intriguing thoughts about judicial power bent in a different direction. His most striking proposal was to create a joint executive-judicial council of revision (modeled on the New York constitution) possessing a limited negative (or veto) over legislation. Under Article 8 of the Virginia Plan, this council would have “authority to examine every act of the National Legislature before it should operate, & every act of a particular [state] Legislature before a Negative thereon should be final.” (The latter part of the clause related to the congressional negative on state laws, which we will discuss below.) On the three occasions when this provision was debated, Madison defended it vigorously. One justification for the council rested on the perceived weakness of both the executive and the judiciary. It was to safeguard their authority against the “impetuous vortex” of legislative power that the two politically weaker departments should be formally allied.

It was, however, the other rationale that offers the best insight into Madison’s thinking. Madison wanted leading members of the national judiciary to have an active role in the drafting of legislation. Rather than have judges wait for some suitable case to come before them legally , after a statute was enacted, he wanted them to participate in its adoption. One could fairly object, Madison observed on June 6, “that the judges ought not to be subject to the bias which a participation in the making of the laws might give in the exposition of them” at a later point. Two other points outweighed this concern. First, there would be few occasions when this would occur. Second, and more important, the prior involvement of the judiciary would contribute positively to the enactment of legislation. As Madison remarked on July 21, just before the Framers conclusively rejected the council:

It would be useful to the Judiciary departmt. by giving it an additional opportunity of defending itself agst. Legislative encroachments; It would be useful to the Executive, by inspiring additional confidence & firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check agst. a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities.

There was thus a trade-off to be weighed and paid. One could impair the strict theory of separated powers that the first state constitutions had endorsed. But the net improvement in lawmaking gained by foreseeing and removing difficulties before they occurred was, in Madison’s eyes, worth this theoretical cost. James Wilson amplified Madison’s point by arguing the value of allowing judges to “remonstrat[e]” against laws that were “unjust,” “unwise,” “dangerous,” or “destructive,” yet not “so unconstitutional” as to demand rejection. [7]

The opponents of the council of revision predictably held that the only way that judges could participate in legislation was in their proper judicial capacity, and not as an advisory body. If judges participated in making laws, that might compromise their capacity to adjudicate them in subsequent proceedings. Perhaps most important, the opponents of the council declared that the judiciary already possessed the capacity to declare laws unconstitutional. In other words, Americans would not have to wait until 1803 for Chief Justice John Marshall to “establish” the legitimacy of judicial review in Marbury v. Madison . The concept of judicial review, though still novel and only partly formed, was something that the Framers already grasped.

The defeat that Madison suffered on these points did not lead him to reject his opinions. A year later, in his Observations on Jefferson’s proposed revision of the Virginia constitution, Madison restated his support for a council of revision—but with several intriguing modifications. The great objective remained to provide “a check to precipitate, to unjust, and to unconstitutional laws.” Rather than submit a bill to a joint council, pending measures should be sent to the executive and judiciary independently. If one department objected, a legislative override would need a two-thirds vote; if both objected, a three-quarters vote. But once the legislature made its decision, “It sd. not be allowed the Judges or the Ex[ecutive] to pronounce a law thus enacted, unconstitul. & invalid.” [8]

That qualification would preserve the principle of ultimate legislative supremacy, admittedly exercised under tough super-majoritarian rules. Madison reaffirmed this point in the next paragraph of the Observations, which addressed the dawning recognition of the doctrine of judicial review.

In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper. [9]

Madison recognized the inherent existence of judicial review, but his analysis questioned whether the judiciary should be the final voice on the constitutional validity of statutes.

Two deeper concerns

Beyond Madison’s concerns with the deliberative qualities of representative bodies, two further problems shaped his attitude toward the judiciary. The first concerned the future uses of legislative power in a commercial and territorially expanding republic. The second was related to the fundamental problems of federalism that had troubled Madison ever since he entered the Continental Congress in 1780.

Madison had a very modern conception of the future uses of legislative power. He understood that legislatures would henceforth form the institutional locus within which multiple economic and social interests would try to bend public power to their own benefit. The business of colonial legislatures had been far more parochial. They enacted few general-purpose statutes; most of their work involved answering petty petitions that emanated from counties, towns, and interested individuals. They were not developing turnpikes and canals or providing for the building of bridges. In many ways, legislatures were still adjudicatory bodies that spent a great deal of time resolving local disputes. [10] That was one of the many complications that made Madison so skeptical about any neat or rigid theory of separated powers.

But once Americans had to govern a vast terrain stretching from the Atlantic to the Mississippi, the local knowledge that amateur lawmakers had carried to their provincial capitals would no longer suffice. National legislators had to acquire national knowledge. Although Madison hoped some members of Congress would aspire to serve more than one term, he rightly foresaw that each biennial Congress would bring major rotations in membership. Even though the Constitution did not require it, rotation in office remained the pervasive practice until the late nineteenth century. Each biennial session created its own educational cycle, as new members arriving from widely scattered districts learned the complexities of public policy on a national scale. Indeed, nothing better indicates how much our political world differs from theirs than this basic disparity in the importance of incumbency. Any political scientist working today assumes that reelection is the dominant motive shaping the behavior of our representatives. That presumption was manifestly not the case in the political world of the founders.

Yet lawmakers would also be active advocates for their constituents’ immediate interests. As one fascinating paragraph of Federalist 10 suggests, legislators would effectively serve as “judges and parties, at the same time.” Particularly in the realm of economic legislation, lawmakers would act judicially, because “what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens; and what are the different classes of legislators, but advocates and parties to the causes which they determine?” In the realm of economic policy—laws covering creditors and debtors, producers and consumers, and modes of taxation—all decisions were both judicial and legislative in nature, because they would have different effects on different forms of property, which Americans regarded (along with freedom of conscience) as the most fundamental right of all.

This blurring of lines between what is formally legislative in appearance but latently judicial in nature illustrates the complexity of Madison’s thinking. It also demonstrates why he felt few qualms about blurring or crossing the boundary between the distinct realms of legislation and adjudication, as the council of revision manifestly would have done. If the ultimate end was to secure the best legislation possible before it was enacted, why not adopt a procedure that would bring more “consistency, conciseness, perspicuity & technical propriety” to the task, especially when many representatives were relative amateurs at the legislative game?

Had it been approved, the work of the council of revision would have implicated Madison’s other radical proposal: the negative on state laws that Congress could use either to protect the national government against interference from the states or to protect individuals and minorities against unjust acts. On July 17, the day after it approved the equal state vote in the Senate—to Madison’s great regret—the Convention replaced the negative on state laws with the initial weak version of the Supremacy Clause. The language of that Clause was soon silently strengthened. It ultimately obliged state judges to treat the Constitution, federal laws, and national treaties as “the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Although even today skeptics argue that the Constitution did not explicitly provide for the exercise of judicial review, that is what the Supremacy Clause actually accomplished.

The principle underlying the Supremacy Clause resolved a problem that had long vexed Madison. From the start of his congressional career, he actively worried about how the states could be persuaded, encouraged, or coerced to fulfill their federal obligations. The prevailing theory underlying the Articles of Confederation was not a “proto-Calhoun” [11] belief that the states had a sovereign right to decide whether or not to implement the measures that Congress sent their way. It was rather that the states should adapt all those measures to local conditions, acting in effect as administrative arms of Congress. In the early 1780s, Madison believed that Congress should have the authority to compel states to do their duty. Although Congress never pursued this idea, Madison was still contemplating the advantages of coercing delinquent states in 1787.

Yet once the Convention began, Madison concluded that schemes of coercion were more likely to provoke civil conflict rather than orderly governance. The negative on state laws, which was modeled on the veto power the king had previously exercised over the colonies, became the next solution to this problem. The power would vest in Congress, but the council of revision would in turn use its limited negative to ensure that Congress acted appropriately. Once these two provisions were eliminated, the default option for policing conflicts over federalism fell to the federal judiciary, or more specifically to the Supreme Court.

Madison remained unconvinced that this was the best means to ensure that the states would conform to the new federal system. Privately, he still viewed the negative on state laws as a better mechanism than judicial enforcement. He laid out his rationale in a lengthy letter to Jefferson, written a month after the Convention adjourned:

It may be said that the Judicial authority under our new system will keep the States within their proper limits, and supply the place of a negative on their laws. The answer is that it is more convenient to prevent the passage of a law, than to declare it void after it is passed; that this will be particularly the case where the law aggrieves individuals, who may be unable to support an appeal against a State to the supreme Judiciary, that a State which would violate the Legislative rights of the Union, would not be very ready to obey a Judicial decree in support of them, and that a recurrence to force, which in the event of disobedience would be necessary, is an evil which the new Constitution meant to exclude as far as possible. [12]

Yet in the months after Madison drafted this impassioned letter, he accommodated himself to the constraints that the Constitution imposed.

The critical passage illustrating his thinking appeared in Federalist 39. The second half of this essay was devoted to a five-pronged assessment of the federal (that is, state-based) and national properties of the Constitution. Near the close of this analysis, Madison raised the delicate question of the resolution of the inevitable controversies over the respective jurisdictions of the state and national governments.

It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

In fact, thirty years later, Spencer Roane, chief judge of the Virginia court of appeals (and Patrick Henry’s son-in-law), did actively combat this conclusion. But the succinct statement of Federalist 39 defined the orthodoxy that Madison consistently defended.

Madison’s principle merits two important comments. First, it demonstrates conclusively not only that judicial review was clearly part of the original meaning of the Constitution— its existence textually confirmed by the Supremacy Clause—but also that its main or more obvious use would involve questions of federalism rather than separation of powers. Second, when one turns to Madison’s seminal essays on the separation of powers in Federalist 47-51, judicial power is made conspicuous by its absence. Perhaps this was a mere omission on Madison’s part; perhaps it reflected his belief that the critical issue of separation of powers was the relationship between president and Congress; or perhaps it reflected his sense that the whole “doctrine” was too messy and “obscure” a subject to be amenable to any tidy resolution. Once one reaches the concluding essay, Federalist 51, it is striking how little Madison finally says about separation of powers. He devoted only a single paragraph to the institutional workings of checks and balances; instead, the second half of the essay largely restates the ideas of Federalist 10, which said almost nothing about institutions but was devoted instead to the mischief-curing benefits of a multiplicity of factions in society. The awkward conclusion remains that in 1787-88 Madison’s nominal commitment to the role the judiciary would play in resolving conflicts of federalism did not inspire him to say all that much about how the judiciary would operate.

Lessons learned

Three decades later, in retirement at Montpelier, experience gave Madison a different framework for thinking about the role of the judiciary in the federal republic.

When George Washington began staffing the federal judiciary in 1789, loyalty to the Constitution was the first criterion of appointment. One had to have been part of the Federalist movement that supported ratification of the Constitution. Twelve years later, President John Adams made membership in the Federalist Party the first criterion for seats in the new circuit courts the Judiciary Act of 1801 had just created. Madison’s most celebrated contribution to the annals of constitutional case law took place as the named (though absent) defendant in Marbury v. Madison (1803), over his refusal to deliver the same magistrate’s commission that Secretary of State John Marshall had failed to transmit to William Marbury. It says something about the institutional weakness of the federal judiciary at this point to note (a) that President Jefferson and Madison simply ignored Marbury’s case; (b) that Marshall’s opinion went out of its way to render grand pronouncements superfluous to the resolution of the case; and (c) that a week after Marbury was decided, a majority of the Court ducked its real challenge, holding in Stuart v. Laird that the abolition (through the Repeal Act of 1802) of the circuit court positions created in 1801 was constitutionally permissible, even though the new judges enjoyed the “tenure during good behavior” rule of Article III.

That rule presumed that this condition of tenure, reinforced by professional norms of behavior and republican honor, would maintain judicial independence. The fidelity to the Constitution that Washington expected of the first generation of national jurists was more a minimal condition of recruitment than a hard test of political loyalty. But the partisan tumult of the 1790s raised the entry price of this fidelity. The Judiciary Act of 1801 was a calculated Federalist response to the party’s loss of control over all three political institutions of the national government. If one had reliable ways to know or test the political commitments of judicial appointees, Article III, if exploited quickly, would enable the Federalists to ensure their control of one branch of government for years to come. The real logic of Article III thus promoted the opposite of judicial independence. One could argue, not all that perversely, that the judicial ambitions of the Federalist Party in 1801 anticipated the judicial ambitions of the Federalist Society almost 200 years later.

Yet beyond the repeal of the 1801 Act and the failed impeachment of Justice Samuel Chase, Jefferson and Madison did not pursue a radical effort to reshape the federal judiciary. High among the various explanations for their moderation was their avowed desire to restore a political system in which the contentious party loyalties of the 1790s would dissipate and disappear. The goal of the first party system, in their view, was to drive the Federalists into collapse, and then to restore a system in which organized national parties would play no part. Under this presumption, using tenure during good behavior to stock the judiciary with loyalists was not their highest priority.

What did persist in Madison’s thinking about the judiciary were two other concerns: first, that the Supreme Court not endorse the full Hamiltonian interpretation of the Necessary and Proper Clause, as expressed during the bank debate of 1791; and second, that it play the umpiring role Madison had assigned it in Federalist 39. The best elaboration of these views came after Judge Spencer Roane tried to recruit Madison to support his proposition that the federal and state supreme courts acted on a level plane of authority, and that disagreements between them did not require an ultimate resolution. Roane began forming these ideas in response to Martin v. Hunter’s Lessee (1814), but the key exchanges took place after McCulloch v. Maryland (the bank case, 1819) and Cohens v. Virginia (1821), a contrived case involving the interstate purchase of lottery tickets that Chief Justice Marshall used to restate the principle of federal judicial supremacy.

In his first response to Roane, Madison politely deflected the invitation to equate the authority of federal and state supreme courts by focusing instead on Marshall’s opinion in McCulloch . That opinion decidedly echoed Hamilton by emphasizing the discretionary power the Necessary and Proper Clause invested in Congress. Madison had long conceded that the course of discussion since 1791 had legitimated the incorporation of a national bank. But he still distinguished that particular precedent from the general doctrine Marshall was propounding. If one read the Clause as broadly as Marshall did, no effective restraint would prevent Congress from defining the scope of its own legislative authority. Marshall’s mode of interpretation “seems to break down the landmarks [a favorite Madison word] intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned.” [13]   Had the Federalists presented such a reading of the Clause to the American people in 1787, the Constitution might well have been rejected. (This tracks the inventive approach to originalism that Madison had pioneered in 1796.)

When Roane renewed his plea in 1821, however, the discussion transcended a clausal reading of the Constitution to focus on the deeper problem of jurisdiction. In two further letters—one labored, the other more direct—Madison refuted Roane’s request on two basic grounds. If one wished to secure “the reserved sovereignty of the States” within the federal system, he argued, the greater danger lay not in the Supreme Court but in the expansive legislative power of Congress. Implicit in this response was the recognition that the South would hereafter be a political minority needing protection against the North. Second, and more important, Madison saw no alternative to supporting the primacy of the Supreme Court over the contending claims Roane had made for its counterparts in the states. [14]

Roane had another prominent reader, however, who proved more sympathetic to his claims: Thomas Jefferson. If serious conflicts arose between state and federal courts, on Roane’s model of a parity between them, why not submit these disputes, Jefferson asked, to the “ultimate arbiter[,] the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States” [15] This revised a proposal Jefferson had made back in the 1780s, and which Madison had subjected to respectful but devastating criticism in Federalist Nos. 49-50. Believing that the stability of the republic rested in part on the “salutary veneration” that the people should express for the Constitution, Madison offered two responses to this proposal. The first was to argue that courts at both levels should try to limit the danger of judicial confrontations by avoiding the kinds of grand overstatements of positions that both Marshall and Roane were prone to giving. Judicial doctrine should evolve case by case, the better to “obviate the dilemma of a Judicial rencounter [sic] or a mutual paralysis” between state and national benches. The second was finally to adhere to the wisdom of Federalist 39 and work to ensure that the sources of “impartiality” in judicial decision-making would be protected, while conceding that in the final analysis there could be no alternative to federal judicial supremacy. [16]

Lessons for the present

Madison’s desire for impartiality in interpretation now seems a lost fantasy of innocence from another constitutional age. True, much of the legal work that modern judges and justices perform reliably depends on precedent, doctrine, and professional competence. The judiciary as a whole is hardly running amok. But when one leaves the well-ploughed fields of ordinary law to tramp the cratered terrain of constitutional interpretation, our confidence in judicial independence evaporates. The ever-escalating crisis of judicial appointments—a one-way ratchet of politicization—makes Madison’s belief that tenure during good behavior would secure judicial independence and impartiality appear delusional.

Exactly the opposite result now applies. In a system that supports the intense ideological vetting of judicial candidates, apparently often conducted by advocacy groups acting outside of government, the sacred rule of tenure during good behavior operates as an independent variable that promotes the appointment of politically reliable judges. Nominees happily pledge to perform as umpires calling balls and strikes or faithful adherents of the original Constitution—nothing more and nothing less. No candid observer can take those claims seriously. But the discovery of this potentiality was made in 1801, not two centuries later in Bush v. Gore (2000). Although the force and appeal of political reliability have waxed and waned over time, the ever-worsening deterioration and weaponization of the federal judicial appointments process is less a deviant departure from a disinterested norm than a sour fulfillment of the Constitution’s latent possibilities.

Madison offers no obvious solution to this problem. His ideal notion of judicial appointments rested on distinguishing the professional credentials of jurists from the novice legislators who would rotate in and out of Congress. The best outcome he hoped for was that if one could leave the contested politics of the 1790s astern, the partisan bonds of the first party system could give way to a more professional, moderated mode of judging. But if intense partisanship continues to color and distort judicial appointments, as every sign indicates it will, Madison offers no ready answer to the problem, beyond hoping that the process would select judges prepared to resolve controversies on a case-by-case basis, avoiding grand statements of interpretive theory in order to focus on working out the inherently messy details of the American constitutional system. The question that is left open today is whether some other feasible form of judicial appointment could be imagined. Any move in that direction would require the daunting project of an Article V amendment.

On two other matters, however, one can draw strong inferences about the norms that Madison would apply to contemporary dilemmas of constitutional jurisprudence. On one of these points, Madison’s conclusions seem fairly obvious; on the other, some creative thinking could reshape one of his ideas to contemporary purposes.

As I have proposed elsewhere, the most Madisonian part of the Constitution may well be Section 1 of the Fourteenth Amendment, which was ratified thirty-two years after his death. [17] At first glance this claim seems inherently specious. Yet the dominant motif in Madison’s approach to the protection of constitutional rights rested on the belief that the real danger to rights in a republic would not come from the arbitrary concentrated power of a central government. It would arise instead from popular majorities acting instrumentally through the legislature, and these majorities would form much more easily at the state and local level than in an extended national republic. [18] The congressional negative on state laws was his preferred, if likely impracticable, solution to this problem. Yet if over time federal justices and judges acquired the confidence and demonstrated the capacity to enforce rights against legislative majorities within the states, that outcome would have delighted Madison. The three prongs of Section 1 (equal protection, due process, and privileges and immunities) made that protection possible, even if many decades passed before the incorporation doctrine became a living possibility.

No better illustration of this phenomenon exists than the system of racial segregation that emerged in the late nineteenth century. That was and remains—along with its precursor, the peculiar institution of chattel slavery that Jim Crow replaced—the primary example of the denial of civil rights in American history. As Madison privately observed in 1791, “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact . .  . . The Southern States of America, are, on the same principle aristocracies.” [19] One could easily apply the Republican Guarantee Clause of Article IV to reach a similar conclusion about Jim Crow, which was the logical continuation of that situation: a clear demonstration of the way in which state-based majorities could trample fundamental rights. One could similarly argue that the predictable consequences of the Supreme Court’s disastrous decision in Shelby County v. Holder (2013),  which quickly inspired fresh efforts to suppress or minimize the African American vote, embodies yet another modern application of this same animus.

Of course, one cannot unthinkingly transpose Madison’s eighteenth- and early-nineteenth century opinions into contemporary debates. One cannot formulate an intelligent prediction of how Madison would have thought about Roe v. Wade . Or as Justice Samuel Alito quipped in an exchange with Justice Antonin Scalia during the oral argument in Brown v. Entertainment Merchants Association , "I think what Justice Scalia wants to know is what James Madison thought about video games.” [20] Of course, there are some issues where one can draw reasonably plausible, perhaps even persuasive inferences about how Madison would have thought about particular cases. Given his known qualms about chaplains pronouncing essentially sectarian invocations for public meetings, it is difficult if not indeed impossible to imagine Madison endorsing the Supreme Court’s opinion in Town of Greece v. Galloway , permitting just such a routine. [21] But to conjure a coherent prediction about how Madison would have thought about cases like Hobby Lobby v. Burwell or Masterpiece Cakeshop v. Colorado Civil Rights Commission beggars the historian’s imagination. Such predictions, to borrow the lawyer’s phrase, would depend on “facts not in evidence.”

Yet on another more fundamental point, it is indeed possible, I believe, to posit a Madisonian position on the role of the judiciary in the American “political system” (to evoke Madison’s April 1787 memorandum formulating his agenda for the Philadelphia convention). The underlying premise of Madison’s entire theory of republican government was that the wrong kinds of “factious” majorities were more likely to form within the states individually than nationally. If the Supreme Court acquired the capacity and authority to act vigorously to protect rights within the states, Madison would have been all in favor of that result. Given a choice between the Warren Court, on the one hand, and the Rehnquist or Roberts Courts, on the other, I strongly suspect Madison would have preferred the former. (This is why the Federalist Society should renounce its perfidious expropriation of Madison’s profile as its institutional logo.)

The second contemporary dilemma relates to Madison’s council of revision. The specific case that Madison and James Wilson made for the council no longer seems relevant. With the professionalization of legislative service, the growth of congressional staffs, and the amount of knowledge available to both Congress and especially to the presidency, there is no obvious need to involve jurists in lawmaking for the purpose of improving the quality of legislative deliberation. Yet one could still wonder whether prior judicial involvement in lawmaking would reduce and mitigate the constitutional storms that sometimes rage over legislation, as the post-enactment history of the Affordable Care Act illustrates so amply. In 1787 one could have hardly imagined the extent to which constitutional law has become (to give Clausewitz’s famous dictum a fresh application) a continuation of politics by other means. Constitutional law, as such, did not really exist before 1789. It had no real precedent in British or colonial practice, and Americans were still grappling to define what it would mean to treat a constitution as supreme fundamental law. [22] Yet Madison’s idea of a council of revision did at least realize that judicial counsel on the constitutional aspects of a statute could be helpful in its formation. Modern constitutional courts in other nations now often operate in a similar fashion, encouraging ex ante review rather than ex post litigation. Applying the lessons they have learned while avoiding a direct replication of the American approach to judicial review might provide some helpful lessons. Rather than ratchet up the tensions that accompany the post-enactment testing of the constitutionality of a statute, in a Supreme Court that is acutely divided on partisan lines and often reaches predictable 5-4 decisions on just these kinds of cases, some moderated version of Madison’s council of revision might have beneficial consequences.

A bit of wisdom from Federalist 49 would be helpful here. In that essay, midway through his discussion of the separation of powers, Madison went out of his way to analyze a proposal that no one else in 1788 was discussing: Jefferson’s idea, espoused in his Notes on the State of Virginia , to resolve constitutional disputes among the branches by calling popularly elected conventions to settle the matter. Amid his various criticisms of this idea, Madison mentioned the dangers that would arise from a repeated use of this expedient: “frequent appeals,” he warned, “would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Veneration itself had a positive value in maintaining the stability of a constitutional system. Suspecting as we plausibly do that too many constitutional decisions made today nakedly reflect the political biases that inflect and infect the entire judicial appointments process, who can “venerate” modern constitutional jurisprudence as a principled endeavor to clarify (or “liquidate,” as Madison would have said) the meaning of the Constitution? Allowing Justices to participate at some prior point in the adoption of legislation—in a manner akin to the rejected council of revision—would not wholly eliminate the partisan impulses that wrack our constitutional system, but it might help to enhance our veneration of constitutional norms.

The Madison who did so much to frame the Constitution in 1787, though never inclined to practice law, was a keen and informed observer of the Anglo-American legal tradition. A concern with legislative deliberation was then the dominant variable in his constitutional thought. But he was also a deeply empirical thinker, and as the Constitution took effect, reassessing the nature of the power that the executive and judiciary branches would wield became subjects to which he gave fresh attention. We are entitled to reassess the judicial power of the United States with a similar critical commitment.

[1] This essay draws upon my prior writings, including “The Origins of Judicial Review: A Plea for New Contexts,” Stanford Law Review , 49 (1996-1997), 1031-1064;  “Judicial Power in the Constitutional Theory of James Madison,” William and Mary Law Review , 43 (2001-2002), 1513-1547; Original Meanings: Politics and Ideas in the Making of the Constitution (New York, 1996); and A Politician Thinking: The Creative Mind of James Madison (Norman, OK, 2017).

[2] Mary Sarah Bilder, “James Madison, Law Student and Demi-Lawyer.” Law and History Review , 28 (2010), 389-449.

[3] Letter from James Madison to Caleb Wallace, Aug. 23, 1785, in Jack N. Rakove, ed., James Madison: Writings (New York, 1999), 42; (hereafter Madison: Writings ).

[4] Vices of the Political System of the United States, Madison: Writings, 74-80, for this and the following paragraphs.

[5] Letter from James Madison to George Washington, April 16, 1787, in Madison: Writings , 82.

[6] Letter from James Madison to George Washington, 90-91.

[7] Max Farrand, ed., Records of the Federal Convention of 1787 (New Haven, 1911, 1937, 1966), I, 138-139; II, 73-80.

[8] James Madison, Observations on the “Draught of a Constitution for Virginia,” Madison: Writings , 417.

[9]  Madison, "Observations," 417.

[10] See the important article by Christine Desan, “The Constitutional Commitment to Legislative Adjudication in the Early American Tradition,” Harvard Law Review , 111 (1998), 1381.

[11] John C. Calhoun was a South Carolina senator who used a states’ rights argument to protect slavery during the Nullification Crisis of 1832-33.

[12] Letter from James Madison to Thomas Jefferson, Oct. 24, 1787, in Madison: Writings , 148-149.

[13] James Madison to Spencer Roane, Sept. 2, 1819, Madison: Writings , 733-736.

[14] James Madison to Spencer Roane, May 6 and June 29,1821, in Madison: Writings , 772-779.

[15] Letter from Thomas Jefferson to Justice William Johnson, June 12, 1823, available at http://teachingamericanhistory.org/library/document/letter-to-justice-william-johnson/.

[16] James Madison to Thomas Jefferson, June 27, 1823, in Madison: Writings , 798-802.

[17] Jack Rakove, Original Meanings (Vintage: 1997), 336-338.

[18] The classic analysis comes in Madison’s letter to Jefferson of Oct. 17, 1788, in Madison: Writings , 419-423.

[19] Robert Rutland et al ., eds., The Papers of James Madison (Chicago and Charlottesville, 1962-1999), 14: 163-164.

[20] 564 U.S. 786 (2011).

[21] 134 S. Ct. 1811 (2014).

[22] On this massively important point, see Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill, 1969), chapter 8; and Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, 2018).

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Like most of our institutions of government, the federal judicial branch traces its origins back to the Constitution. Based on constitutional provisions, the judicial branch (and Supreme Court) were created by the Judiciary Act of 1789. As one of our country’s three branches of government, the federal courts judge the constitutionality of laws and presidential actions. In turn, the House and Senate (legislative branch) check the courts’ powers by approving and disapproving of appointees and by amending the Constitution. The president (executive branch) has the important power of appointing federal judges.

The first Supreme Court convened in 1790 and only had six (instead of the now customary nine) justices. President Washington deliberately appointed justices from a variety of states, but all of the men had supported the ratification of the Constitution. Right from its inception, the federal courts have made controversial decisions, from Chisholm v. Georgia (1793), which returned Loyalists’ land to them after the Revolution, to more contemporary decisions pertaining to important questions of freedom of speech and religious liberty.

Below is a collection of resources about judicial branch, the Supreme Court and their historical development. Scroll down to browse these resources or jump from section to section by clicking the links below:

Selected online resources

JMC resources

Recorded lectures on the Supreme Court

Commentary and articles from JMC fellows

Selected online resources.

Selected online resources on the United States Supreme Court:

The Supreme Court of the United States Official Website

The Supreme Court’s official website provides up-to-date information on the Court’s latest rulings as well as argument transcripts and case documents.

Visit the official website of the Supreme Court >>

The Supreme Court Historical Society

The Supreme Court Historical Society, a private non-profit organization, is dedicated to the collection and preservation of the history of the Supreme Court of the United States. Amongst other things, its website features a relevant articles on the Court’s history, a documentary on FDR’s court-packing scheme, and extensive information on how the Court works.

Visit the Supreme Court Historical Society website >>

National Constitution Center: Who Were the First Six Supreme Court Justices?

George Washington assigned the first Supreme Court justices, who began work on February 1, 1790. The justices formed an interesting group, with “a Chief Justice who became the most-hated man in America for a time; a justice who didn’t want to serve despite the Senate’s confirmation; and another justice who literally jumped into Charleston Bay when he lost his seat on the bench.”

Read more about the first justices at the National Constitution Center>>

Federalist Papers 78-83

Federalist Papers 78-83, written by Alexander Hamilton in 1788, provide original justification and theory behind the federal judiciary. Hamilton noted that, “In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.”

Read Federalist 78-83 at Yale’s Avalon Project >>

How are Federal Courts Different from State Courts?

The United States Courts website offers information on court role and structure, the difference between state and federal courts, and the significance of the U.S. Court of Appeals.

Learn about the differences between the federal and state courts at USCourts.gov >>

* If you are a JMC fellow who’s published on constitutional law, the American Supreme Court, or its history and controversies, and would like your work included here, send it to us at [email protected] . 

JMC Resources

The JMC’s First Amendment Library

The First Amendment Library features several Supreme Court cases crucial to the development of religious liberty and freedom of speech in the United States.

Visit the First Amendment Library >>

Recorded Lectures on the Supreme Court

Select recorded lectures on the United States Supreme Court:

Constitution Day 2019 with Justice Stephen Breyer

For JMC’s 2019 Constitution Day event at Rhodes College, Supreme Court Justice Stephen Breyer spoke on globalism, immigration, and localism vs. tribalism, among other issues.

View the video on YouTube >>

American Enterprise Institute: McCulloch v. Maryland at 200

In 2019, the American Enterprise Institute hosted a panel of scholars in honor of the 200th anniversary of the Supreme Court’s landmark McCulloch v. Maryland decision, which decided the scope of congressional power and role of a national bank . Scholars discussed McCulloch v. Maryland , Marshall’s opinion, his judicial statesmanship, James Madison’s alternative reading of the Constitution, and the role of the bank in establishing America’s commercial republic. Panelists included JMC faculty partner Michael Zuckert and JMC fellow Christopher Wolfe.

Adam White on “The American Supreme Court in American Law and Politics”

On February 20, 2015, the Program on Constitutional Government, a JMC partner program, presented Adam White to speak on the Supreme Court.

Conversations with Bill Kristol

Justice Samuel Alito on Supreme Court, Recent Court Decisions, and His Education

Justice Alito describes the inner workings of the Court, particularly how the justices arrive at decisions. Justice Alito and Kristol also discuss some recent controversial cases regarding free speech.

Adam White on the Supreme Court and the Conservative Legal Movement

What is the role of the Supreme Court in American politics today? How is the current Court dealing with hot-button social and cultural issues, as well as topics like regulation and the administrative state?

Commentary and articles from JMC fellows:

American Law Before the Supreme Court

Nan Goodman, “ Banishment, Jurisdiction, and Identity in Seventeenth-Century New England: The Case of Roger Williams .” ( Early American Studies 7.1, Spring 2009)

Peter Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787 . ( University of Pennsylvania Press , 1983)

James Stoner, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism . (University Press of Kansas, 1992)

James Stoner, “ The Idiom of Common Law in the Formation of the Judicial Power .” ( The Supreme Court and American Constitutionalism , Rowman & Littlefield Publishers , 1997)

Constructing a Federal Court System: The Supreme Court During the Founding Era

Matthew Brogdon, “ Federalist Constitutionalism and Judicial Independence .” ( Readings in American Government , 2013)

Matthew Brogdon, “ The Formation of Judicial Federalism in the United States .” ( Publius: The Journal of Federalism 48.2, Spring 2018)

Paul Carrese, “ Judicial Statesmanship, the Jurisprudence of Individualism, and Tocqueville’s Common Law Spirit .” ( The Review of Politics 60, 1998)

Mark David Hall, “ The Declaration of Independence in the Supreme Court .” ( The Declaration of Independence: Origins and Impact , Congressional Quarterly Press, 2002)

Mark David Hall, “ Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases .” ( High Court Quarterly Review 5, 2009)

Stephen Presser, “Does the Federal Government Protect Private Property?” ( Chronicles: A Magazine of American Culture , March 2006)

Keith Whittington, “ Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution .” ( Studies in American Political Development 9.1 , Spring 1995)

The Civil War and Nineteenth Century Law

Anthony Lister Ives, “ Frederick Douglass’s Reform Textualism: An Alternative Jurisprudence Consistent with the Fundamental Purpose of Law .” ( The Journal of Politics 80.1, January 2018)

Jonathan White, “ The Strangely Insignificant Role of the U.S. Supreme Court during the Civil War .” ( Journal of the Civil War Era 3.2, June 2013)

Keith Whittington, “Judicial Review of Congress before the Civil War.” ( Georgetown Law Journal 97.5, May 2009)

Keith Whittington, “ Slavery and the U.S. Supreme Court .” ( The Political Thought of the Civil War , University Press of Kansas, 2018)

Michael Zuckert, “ Fundamental Rights, the Supreme Court and American Constitutionalism: The Lessons of the Civil Rights Act of 1866 .” ( The Supreme Court and American Constitutionalism , Rowman & Littlefield , 1997)

New Precedents and Rulings in the Twentieth Century

Benjamin Kleinerman (co-author), “ A Switch in Time Saves Nine: Institutions, Strategic Actors and FDR’s Court-Packing Plan .” ( Public Choice 113.3-4, 2002)

Curt Nichols (co-author), “ Congressional Attacks on the Supreme Court: A Mechanism to Maintain, Build, and Consolidate .” ( Law and Social Inquiry 41.1, Winter 2016)

Curt Nichols (co-author), “ Court-Curbing via Attempt to Amend the Constitution: An Update of Congressional Attacks on the Supreme Court from 1955–1984 .” ( Justice System Journal 35.4, May 2014)

Contemporary Developments and Controversies in the Court

David Alvis (co-author), “The Court’s Incoherence on Executive Removal.” ( Law & Liberty , August 4, 2020)

Jonathan Bean, “ Feds Gut Due Process in ‘Sexual Harassment’ Cases .” ( NAS Blog , August 19, 2011)

Jonathan Bean, “ J’accuse! Feds ‘Discourage’ Due Process. “ ( NAS Blog , August 20, 2011)

Jonathan Bean, “ Supreme Court Rules: Social Security is NOT a Binding Contract .” ( Beacon , January 23, 2013)

Thomas Bell, “The Law: Perverse Politics: Recess Appointments, Noel Canning, and the Limits of Law.” ( Presidential Studies Quarterly 48.2, June 2018)

Jasmine Farrier, “The Contemporary Presidency: Judicial Restraint and the New War Powers .” ( Presidential Studies Quarterly 46.2, 2016)

Judge Earl Glock, “ A New Role: The Retired Justice .” ( Chicago Tribune , February 8, 2017)

Marc Landy, “ SCOTUS Was Right To Curb Feds On Medicaid .” ( Cognoscenti: WBUR 90.9FM Ideas and Opinion Website , July 31, 2012)

Briana McGinnis, “ This is why some U.S. judges banish convicts from their home communities .” ( The Washington Post Monkey Cage Blog , March 16, 2017)

Stephen Presser, “ The Courts: Crying ‘Halt!’ “ ( Chronicles: A Magazine of American Culture , September 2005)

Stephen Presser, “How Bush Would Fix the Supremes.” ( Chicago Tribune , November 5, 2000)

Stephen Presser, “ Obama should know better on Supreme Court’s role .” ( CNN.com , April 3, 2012)

Stephen Presser, “ Supreme Court Has Legal Precedent to Strike Down Health Care Bill .” ( Policy-Mic , March 26, 2012)

Stephen Presser, “ Will the Supreme Court Be Faithful to Its Oath to Uphold the Constitution in the Obamacare Case? “ ( George Mason Law Review 19.969, 2012)

Jeffrey Rosen, “ The Supreme Court and the Culture Wars .” ( A Year at the Supreme Court , Duke University Press, 2004)

Flagg Taylor (co-author), “The Court’s Incoherence on Executive Removal.” ( Law & Liberty , August 4, 2020)

Philip Wallach, “ Greenhouse Gas Regulation at the Supreme Court – The Limits of Executive Adaptation .” ( FixGov , February 25, 2014)

Philip Wallach, “ The Supreme Court Rules on Air Pollution: A Victory for Bureaucratic Muddling Through .” ( FixGov , May 1, 2014)

Philip Wallach, “ The Supreme Court Rules on EPA Regulations: A Review and a Look Ahead .” ( FixGov , June 23, 2014)

Philip Wallach, “ Tuesday’s Other Big News: Supreme Court Stays Obama’s Clean Power Plan .” ( FixGov , February 10, 2016)

Jonathan White, “ A Belligerent President, Accusations of Treason, and Stolen Supreme Court Seat .” ( Zócalo , March 6, 2017)

Emily Zackin, “ Popular Constitutionalism’s Hard When You’re Not Very Popular: Why the ACLU Turned to Courts .” ( Law and Society Review 42.2, June 2008)

Theories on the Judiciary

Clement Fatovic, “The Political Theology of Prerogative : The Jurisprudential Miracle in Liberal Constitutional Thought .” ( Perspectives on Politics 6.3, September 2008)

Mark David Hall (co-author), “ Political Obligation and the United States Supreme Court .” ( Political Obligations , Oxford University Press, 2005)

Erin Lynn Miller, “ What Constitutions ‘Consideration’ of Mitigating Evidence? “ ( American Journal of Criminal Law 45, Fall 2018)

Sandra Peart (co-author), “ Adam Smith, Collusion and ‘Right’ at the Supreme Court .” ( Supreme Court Economic Review 16.1, February 2008)

Stephen Presser, “ Judicial Ideology and the Survival of the Rule of Law: A Field guide to the Current Political War over the Judiciary .” ( Loyola University Chicago Law Journal 39.2, Winter 2008)

Stephen Presser, “Judging for the People.” ( Chronicles: A Magazine of American Culture , June 2006)

Stephen Presser (co-author), Law and Jurisprudence in American History: Cases and Materials . (West Publ. Co., 1980)

Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America . ( Oxford University Press , 2006)

John Scott (co-author), “ Courting the Public: The Influence of Decision Attributes on Individuals’ Views of Court Opinions .” ( The Journal of Politics 71, July 2009)

James Stoner, “ Judicial Office and the Written Constitution: A Response to Philip Hamburger’s ‘Judicial Office and the Liberty Protected by Law .” ( Liberty Forum/Library of Law and Liberty , January 6, 2012)

James Stoner, “ Who Has Authority over the Constitution of the United States? “ ( The Supreme Court and the Idea of Constitutionalism , University of Pennsylvania Press, 2009)

Jonathan White, Guide to Research in Federal Judicial History . (Federal Judicial Center, 2010)

Keith Whittington, “ Constitutional Constraints in Politics .” ( The Supreme Court and the Idea of Constitutionalism , University of Pennsylvania Press, 2009)

Keith Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review . ( University Press of Kansas , 1999)

Keith Whittington, “ Once More Unto the Breach: Post-Behavioralist Approaches to Judicial Politics .” ( Law and Social Inquiry 25.2, Spring 2000)

Keith Whittington, “ Taking What They Give Us: Explaining the Court’s Federalism Offensive .” ( Duke Law Journal 51.1, October 2001)

Emily Zackin, “ Kentucky’s Constitutional Crisis and the Many Meanings of Judicial Independence .” ( Studies in Law, Politics & Society 58, 2012)

Michael Zuckert, “Judicial Liberalism and Capitalism: Justice Field Reconsidered.” ( Social Philosophy and Policy , Summer 2011)

Influential Supreme Court Cases

Sotirios Barber, “ National League of Cities v. Usery: New Meaning for the Tenth Amendment? “ ( Supreme Court Law Review , 1976)

Justin Dyer, “ Revisiting Dred Scott: Prudence, Providence, and the Limits of Constitutional Statesmanship .” ( Perspectives on Political Science 39.3, 2010)

Justin Dyer, “ The Substance of Dred Scott and Roe v. Wade .” ( Georgetown Journal of Law and Public Policy 16.2, 2018)

Stephen Engel, “ Masterpiece Cakeshop on Gay Rights versus Religious Liberty .” ( SCOTUS 2018: Major Decisions and Developments of the US Supreme Court , Palgrave Macmillan, 2019)

Jasmine Farrier, “ All Politics is Still Local: McConnell v. Lunsford .” ( Cases in Congressional Campaigns: Incumbents Playing Defense , Routledge, 2009)

William Kristol (editor), Bush v. Gore: The Court Cases and the Commentary . ( Brookings Institution Press , 2001)

Michael Munger (co-author), “ Chadha v. INS: Policy-making Outside the Constitution .” ( Creating Constitutional Change , University of Virginia Press, 2004)

Vincent Phillip Muñoz, “ A Bad Aftertaste in the Masterpiece Cakeshop Decision .” ( AmericanGreatness.com , June 9, 2018)

Vincent Phillip Muñoz, “ Thou Shall Not Post the Ten Commandments? McCreary, Van Orden, and the Future of Religious Display Jurisprudence .” ( Texas Review of Law and Politics 10.2, 2006)

Laura Beth Nielsen (co-author), “ Siding with Science: In Defense of ASA’s Dukes vs. Wal-Mart Amicus Brief .” ( Sociological Methods & Research 40.4, 2011)

Stephen Presser, “ Marbury, McCulloch, Gore and Bush: A Comment on Sylvia Snowiss .” ( John Marshall Law Review 33.4, 2000)

Clyde Ray, “ An Old Controversy: Marshall, Whitaker, and Marbury v. Madison .” ( Starting Points: A Journal of American Principles & American Practices , February 27, 2019)

Clyde Ray, “ John Marshall, Marbury v. Madison, and the Construction of Constitutional Legitimacy .” ( Law, Culture, and the Humanities 15.1, 2019)

Clyde Ray, “ John Marshall, McCulloch v. Maryland, and the Concept of Constitutional Sovereignty .” ( Perspectives on Political Science 47.2, 2018)

Luke Sheahan, “ The First Amendment Dyad and Christian Legal Society v. Martinez: Getting Past ‘State’ and ‘Individual’ to Help the Court ‘See’ Associations .” ( Kansas Journal of Law and Public Policy XXVII.2, Spring 2018)

Rogers Smith, “ Black and White after Brown: Constructions of Race and Modern Supreme Court Decisions .” ( University of Pennsylvania Journal of Constitutional Law 5, 2003)

Rogers Smith, “Electoral College: Bush v. Gore.” ( Common-Place: The Interactive Journal of Early American Life 2.4, July 2002)

Rogers Smith (co-author), “ The Last Stand? Shelby County v. Holder and White Political Power in Modern America .” ( Du Bois Review 13.1, 2016)

Rogers Smith, “ United States v. Bhagat Singh Thind .” ( The Wiley Blackwell Encyclopedia of Race, Ethnicity, and Nationalism 1-2, 2015)

Bartholomew Sparrow, “ The Centennial of Ocampo v. United States .” ( Reconsidering the Insular Cases: The Past and Future of the American Empire , Harvard University Press, 2015)

Bartholomew Sparrow, “ Insular Cases: Downes v. Bidwell .” ( Milestone Documents in American History: Exploring the Primary Sources That Shaped America, Volume 3: 1888–1955 , Schlager Group, Inc., 2008)

Kevin Wagner, “ Adderly v. Florida: Restricting Protests on Public Property .” ( The Encyclopedia of Civil Liberties in America , 2004)

Kevin Wagner, “ Bush v. Gore: Law and Politics in American Elections .” ( The Encyclopedia of the Supreme Court , 2005)

Kevin Wagner, “ City of Cincinnati v. Discovery Network (1993) .” ( The First Amendment Encyclopedia )

Kevin Wagner, “ Mapp v. Ohio: Applying the Exclusionary Rule to States .” ( The Encyclopedia of Civil Liberties in America , 2004)

Philip Wallach, “ King v. Burwell, congressional dysfunction, and the contemporary separation of powers .” ( FixGov , June 25, 2015)

Philip Wallach, “ Michigan v. EPA: Competing conceptions of deference due to administrative agencies .” ( FixGov , June 29, 2015)

Gregory Weiner, “There will be no winners in the Supreme Court’s wedding cake case.” ( Washington Post , December 4, 2017)

Justin Wert (co-author), “Of Benedick and Beatrice: Citizens United and the Reign of the Laggard Court .” ( Cornell Journal of Law and Public Policy 20.719, May 2011)

Jonathan White, “ The Treason Trial of Jefferson Davis .” ( Supreme Court Historical Society Quarterly 33.4, 2011)

Keith Whittington, “ The Court as the Final Arbiter of the Constitution: Cooper v. Aaron (1958).” ( Creating Constitutional Change: Clashes over Power and Liberty in the Supreme Court , University of Virginia Press, 2004)

Keith Whittington (co-author), “ Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon .” ( Hastings Constitutional Law Quarterly 39.3, Spring 2012)

Michael Zuckert, “ Casey at the Bat: Taking another Swing at Planned Parenthood v. Casey .” ( That Eminent Tribunal: Judicial Supremacy and the Constitution , Princeton University Press, 2004)

Michael Zuckert, “ Corfield v Coryell .” ( Federalism in America: an Encyclopedia , Greenwood Press, 2005)

Michael Zuckert, “ Dred Scott Case .” ( Federalism in America: an Encyclopedia , Greenwood Press, 2005)

Michael Zuckert, “ Legality and Legitimacy in the Dred Scott Case .” ( Chicago Kent Law Review 82.1, December 2006)

Influential Supreme Court Justices

Warren Billings, “ Judges’ Lives: Judicial Biography in America, 1607–1995 .” ( The National Conference on Legal Information Issues: Selected Essays , 1996)

Kevin Burns, “ Chief Justice as Chief Executive: Taft’s Judicial Statesmanship .” ( Journal of Supreme Court History 43.1, March 2018)

Jordan Cash, “ George Sutherland and the Contextualization of Executive Power .” ( American Political Thought Journal 9.1, Winter 2020)

Justin Dyer, “ Lincolnian Natural Right, Dred Scott, and the Jurisprudence of John McLean .” ( Polity 41.1, 2009)

Stephen Engel, “ Dynamics of Constitutional Development and the Conservative Potential of US Supreme Court Gay Rights Jurisprudence, or How Neil Gorsuch Stopped Worrying and Learned to Love Same-Sex Marriage .” ( Constitutional Studies 3, 2018)

Robert Faulkner, “John Marshall.” ( Encyclopedia of the Enlightenment , Oxford University Press, 2002)

Robert Faulkner, The Jurisprudence of John Marshall . (Princeton University Press, 1968)

Robert Faulkner, “ The Marshall Court and the Making of Constitutional Democracy .” ( John Marshall’s Achievement , Greenwood Press, 1989)

Mark David Hall, “ James Wilson: Democratic Theorist and Supreme Court Justice .” ( Seriatim: The Supreme Court Before John Marshall , New York University Press , 1998)

Charles Kesler, “ Thomas Cuts at Democrats’ Moral Capital.” ( Los Angeles Times , July 4, 1991)

Nicholas Jacobs (co-author), “ Answering the Call: Leaving the Bench to Serve the President – James F. Byrnes and Franklin Delano Roosevelt .” ( Journal of Supreme Court History , 2019)

Vincent Phillip Muñoz, “ A More Accommodating Accommodation? Justice Kennedy’s Invitation to Compromise .” ( Commonweal.com , July 16, 2014)

Vincent Phillip Muñoz, “ Justice Scalia was Right about Religious Free Exercise .” ( Law and Religion Forum , September 6, 2016)

Vincent Phillip Muñoz, “ No ‘Wall of Separation.'” ( First Things , July 9, 2020)

Deborah O’Malley (co-author), “ Key Questions for Sonia Sotomayor .” ( Heritage Foundation Web Memorandum , July 10, 2009)

Deborah O’Malley, “ Sotomayor Doesn’t Live up to Obama’s Word .” ( Townhall , May 27, 2009)

Deborah O’Malley, “ Would Kagan Defer to Foreign Law? “ ( Townhall , June 29, 2010)

Andrew Porwancher, “ The Justice and the Dean: Oliver Wendell Holmes, Jr. and John Henry Wigmore .” ( Journal of Supreme Court History 37.3, November 2012)

Stephen Presser, “ Impeachment Trial of Samuel Chase .” ( The Dictionary of American History , Charles Scribner’s Sons, 2003)

Stephen Presser, “ Impeachment Trial of Samuel Chase .” ( The Oxford Companion to American Law , Oxford University Press , 2002)

Stephen Presser (co-author), “ Should Clarence Thomas be Chief Justice? “ ( Legal Affairs, Debate Club , January 2005)

Stephen Presser, “ Some Alarming Aspects of the Legacies of Judicial Review and of John Marshall .” ( William and Mary Law Review 43.4, 2002)

Stephen Presser, “ Reading the Constitution Right: Clarence Thomas’s fidelity to our founding documents is making its mark on the Supreme Court .” ( City Journal 17.2, Spring 2007)

Stephen Presser, “ Touting Thomas: The Truth About America’s Most Maligned Justice .” ( Legal Affairs , January-February 2005)

Stephen Presser, “ The Verdict on Samuel Chase and His Apologist .” ( Seriatim: The Supreme Court Before John Marshall , New York University Press, 1998)

Clyde Ray, “ John Marshall, the Native American Cases, and the Idea of Constitutional Nationalism .” ( The Journal of Southern Legal History 26, 2018)

Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries that Defined America . (Times Books, 2007)

Jeffrey Rosen, “ We Hardly Know it When we See it: Obscenity and the Problem of Unprotected Speech .” ( Reason and Passion: Justice Brennan’s Enduring Influence , Norton, 1997)

James Stoner, “ Heir Apparent: Bushrod Washington and Federal Justice in the Early Republic .” ( Seriatim: The Supreme Court Before John Marshall , New York University Press, 2018)

James Stoner, “ The Justice of the Market and the Common Good: Justice Sutherland’s Debate .” ( A Second Look at First Things: A Case for Conservative Politics (The Hadley Arkes Festschrift) , St. Augustine’s Press, 2013)

Keith Whittington, “ The Burger Court: Once More in Transition .” ( The United States Supreme Court: The Pursuit of Justice , Houghton Mifflin, 2005)

Keith Whittington, “ William H. Rehnquist: Nixon’s Strict Constructionist, Reagan’s Chief Justice .” ( Rehnquist Justice: Understanding the Court Dynamic , University Press of Kansas, 2003)

Michael Zuckert, “ Epistemology and Hermeneutics in the Constitutional Jurisprudence of John Marshall .” ( John Marshall’s Achievement: Law, Politics, and Constitutional Interpretations , Greenwood, 1989)

The Appointment Process

Robert John Burton (co-author), “ Humility, Hubris, and the Next Supreme Court Justice .” ( Starting Points: A Journal of American Principles and American Practices , March 20, 2017)

Mirya Holman, “ Measuring Merit in Rhode Island’s Natural Experiment in Judicial Selection .” ( Roger Williams University Law Review 15.3 , Fall 2010)

Stephen Presser (co-author), “ The Case for Judicial Appointments .” ( The Federalist Society , January 1, 2003)

Stephen Presser, “ Evaluating President Obama’s Appointments of Judges from a Conservative Perspective: What Did the Election of Donald Trump Mean for Popular Sovereignty?” ( Howard Law Journal 60.663, Spring 2017)

Stephen Presser, “ The Role of the Senate in Judicial Confirmations .” ( Federalist Society Hot Topics , May 12, 2003)

Stephen Presser, “‘ Should Ideology of Judicial Nominees Matter?’ Is the Senate’s Current Reconsideration of the Confirmation Process Justified?” ( Texas Review of Law and Politics 6, September 2001)

Jeffrey Tulis, “ Constitutional Abdication: The Senate,the President and Appointments to the Supreme Court .” ( Case Western Reserve Law Review 47.4, Summer 1997)

Geoffrey Vaughan, “ Kavanaugh’s Way: A Response to Greg Weiner .” ( Library of Law and Liberty , October 4, 2018)

Keith Whittington, “ The President’s Nominee: Robert Bork and the Modern Judicial Confirmation Process .” ( Baker Center Journal of Applied Public Policy 4.2, Fall 2012)

Keith Whittington, “ Presidents, Senates, and Failed Supreme Court Nominations .” ( The Supreme Court Review , 2006)

Keith Whittington, “Why the Supreme Court has Nine Justices.” ( Newsweek , October 21, 2020)

Mariah Zeisberg, “ Should We Elect the US Supreme Court?” ( Perspectives on Politics 7.4, December 2009)

Judicial Review

Jeremy Bailey, “ Judicial Review and Constitutional Development: Who has the ‘Last Word’ in Interpreting the Constitution? “ ( The People and American Government , Pearson Custom Publishing, 2010)

Keith Whittington, “ An ‘Indispensable Feature’? Constitutionalism and Judicial Review .” ( New York University Journal of Legislation and Public Policy 6.1, Fall 2002)

Keith Whittington, “ The Death of the Legalized Constitution and the Specter of Judicial Review .” ( Courts and the Culture Wars , Lexington Books, 2002)

Keith Whittington, “ Judicial Review and Interpretation: Have the Courts Become Sovereign When Interpreting the Constitution? “ ( Institutions of American Democracy: The Judicial Branch , Oxford University Press, 2005)

Keith Whittington, “ The Least Activist Court in History? The Roberts Court and the Exercise of Judicial Review .” ( Notre Dame Law Review 89.5, 2014)

Keith Whittington, “ Legislative Sanctions and the Strategic Environment of Judicial Review .” ( I·Con: The International Journal of Constitutional Law 1.3, July 2003)

Keith Whittington, “ Preserving the ‘Dignity and Influence of the Court’: Political Supports for Judicial Review in the United States .” ( Rethinking Political Institutions: The Art of the State , New York University Press, 2006)

Keith Whittington, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present . ( University Press of Kansas , 2019)

Keith Whittington, “ Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court .” ( Constitutional Studies 1.2, 2016)

Keith Whittington (co-author), “ Why Does the Supreme Court Uphold So Many Laws? “ ( University of Illinois Law Review 3, 2018)

Michael Zuckert, “ Judicial Review and the Incomplete Constitution: a Madisonian Perspective on the Supreme Court and the Idea of Constitutionalism .” ( The Supreme Court and the Idea of Constitutionalism , University of Pennsylvania Press , 2009)

Judicial Supremacy & Power

Sotirios Barber, The Constitution of Judicial Power . ( Johns Hopkins University Press , 1993)

Stephen Engel, “ Assessing Presidential Manipulations of Federal Judicial Power .” ( The Politics of Judicial Independence , Johns Hopkins University Press, 2010)

Rogers Smith, “ Judicial Power and Democracy: A Machiavellian View .” ( The Supreme Court and the Idea of Constitutionalism , University of Pennsylvania Press , 2009)

James Stoner, “ Defining Judicial Power I: From ‘Merely Judgment’ to ‘Force’ and ‘Will.'” ( Liberty Law Blog/Library of Law and Liberty , February 20, 2012)

James Stoner, “ Defining Judicial Power II: American Political Development and Irreversible Change .” ( Liberty Law Blog/Library of Law and Liberty , February 21, 2012)

Gregory Weiner, The Political Constitution: The Case against Judicial Supremacy . ( University Press of Kans as, 2019)

Gregory Weiner, “ The Power of the Courts is Messing Up Politics .” ( New York Times , November 12, 2017)

Gregory Weiner, “Republican Self-Government Versus Judicial Supremacy.” ( RealClear Public Affairs 1776 Series, October 29, 2020)

Keith Whittington, “ Extrajudicial Constitutional Interpretation: Three Objections and Responses .” ( North Carolina Law Review 80.3, March 2002)

Keith Whittington (co-author), “J udicial Independence, the Power of the Purse, and Inherent Judicial Powers .” ( Judicature 88.1, July/August 2004)

Keith Whittington, “ The Political Foundations of Judicial Supremacy .” ( Constitutional Politics: Essays on Constitution Making, Maintenance and Change , Princeton University Press, 2001)

Keith Whittington, “ Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning .” ( Polity 33.3, Spring 2001)

Keith Whittington, “ ’To Support this Constitution’: Judicial Supremacy in the Twentieth Century .” ( Marbury v. Madison: Documents and Commentary , CQ Press, 2002)

The Supreme Court on Religious Liberty

Richard Garnett, “ Religious Schools and the Freedom of the Church .” ( Law & Liberty , July 10, 2020)

Mark David Hall, “The Little Sisters Win – For Now.” ( Law & Liberty , July 13, 2020)

Vincent Phillip Muñoz, “ The Religious Liberty Case Against Religious Liberty Litigation: Non-Universal Exemptions and Judicial Overreach .” ( Public Discourse , October 11, 2012)

Vincent Phillip Muñoz, Religious Liberty and The American Supreme Court: The Essential Cases & Documents . ( Rowman & Littlefield , 2013)

Stephen Presser, “ The Federal Courts, a Menorah, and the Ten Commandments: Whose Religious Iconography Is Constitutional? “ ( Chronicles: A Magazine of American Culture , March 2003)

Stephen Presser, “ Outsiders, Swing Justices, and Original Understanding: Can the Religion Clauses Be Saved?: A Comment on Greenawalt .” ( Northwestern University Law Review 99.1, 2004)

John Ragosta (co-author), “ Town Prayers: What does the Supreme Court mean by coercion? “ ( Washington Post , May 7, 2014)

James Stoner, “ Religious Liberty and Common Law: Free Exercise Exemptions and American Courts .” ( Polity 26.1, Fall 1993)

*If you are a JMC fellow who’s published on constitutional law, the American Supreme Court, or its history and controversies, and would like your work included here, send it to us at [email protected] . 

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The Debate Over the Judicial Branch

Antifederalists viewed the federal judiciary as a source of danger to individual liberty, the state judiciaries, and the future existence of the states themselves. The Constitution guaranteed jury trials in criminal cases, but it said nothing about civil cases. Thus, Antifederalists were concerned that the judicial power of the United States would compromise the right to jury trials in civil cases. They also noted that in criminal cases, juries of vicinage (local juries) were not guaranteed. This meant that individuals might need to travel distances of hundreds of miles to federal courts placing undue hardship on them. In cases that would come before the Supreme Court, travel could entail thousands of miles. Additionally, Antifederalists worried that the jurisdiction of the federal courts was too broad, and as federal power grew, which they believed was inevitable, more cases would be taken to federal courts rather than state courts, thus reducing the importance of state judiciaries. Since federal judges would be the interpreters of the ambiguities of the Constitution, the federal courts would accrue more power as they allowed federal power to expand at state expense.

Federalists responded that of the three branches, the judicial branch was “least dangerous,” because it only had the power of judgment. They denied that jury trials were always necessary or were endangered, either by the silence of the Constitution on civil cases or by the appellate jurisdiction of federal courts in matters of fact. They defended the jurisdiction of the federal courts as the only means to provide justice in foreign and interstate cases, and impose uniform obedience to the Constitution and federal law.

Federalists viewed the courts as the intermediary between the people and Congress and the Presidency. The courts, through judicial review, would uphold the Constitution against attempts by Congress or the President to enlarge their powers. As such, the judiciary was a protector of the people, not a danger to their liberties.

Among the issues that were not heavily debated, was judicial review since both recognized the judiciary would exercise this power under the new Constitution. The precedents of courts exercising the power of judicial review were well known to the Founders. In England the Law Lords served as a court of last resort. In both the Colonial Era and Post-Revolutionary Period, legislative councils continued this tradition. In New York, the Court of Error and Impeachment had review power. Thus, the idea of judicial review was not a new or radical idea during the Founding Period. However, during the ratification period, the debate centered on whether judicial review was synonymous with judicial supremacy. Federal courts in the proposed Constitution were uniquely independent from the other branches of government. This independence when coupled with the power of judicial review was central in the debates between Federalists and Antifederalists. Publius in The Federalist 78 suggested that having judicial review was advantageous because it afforded federal judges “an essential safeguard against the effects of occasional ill humours in the society.” Antifederalist Brutus argued that federal judges would be “independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

(F) Federalist Essays/Speeches (AF) Antifederalist Essays/Speeches

Criminal Cases

• Agrippa V, Massachusetts Gazette , 11 December 1787 (AF)

Decisions Not Reviewable

• Brutus XI, New York Journal , 31 January 1788 (AF)
• A Well-Wisher to Good Government, Virginia Independent Chronicle , 18 June 1788 (AF)

Equity Powers

• Dissent of the Minority of the Pennsylvania Convention, Pennsylvania Packet , 18 December 1787 (AF)
• Brutus XIII, New York Journal , 21 February 1788 (AF)
• George Mason Speech in the Virginia Convention, 19 June 1788 (AF)

Inferior Courts

• Cassius II: To Richard Henry Lee, Esquire, Virginia Independent Chronicle , 9 April 1788 (F)
• Edmund Pendleton Speech in the Virginia Convention, 20 June 1788 (F)
• Brutus I, New York Journal , 18 October 1787 (AF)

Judicial Independence

• Publius: The Federalist 78, Book Edition II, 28 May 1788 (F)
• Publius: The Federalist 81, Book Edition, 28 May 1788 (F)
• Brutus XI, New York Journal , 7 February 1788 (AF)
• Brutus XV, New York Journal , 20 March 1788 (AF)

Jurisdiction

• Aristides: Remarks on the Proposed Plan , 31 January 1788 (F)
• Hugh Williamson: Speech at Edenton, N.C., New York Daily Advertiser , 25-27 February 1788 (F)
• Publicola: An Address to the Freemen of North Carolina, State Gazette of North Carolina , 20 March 1788 (F)
• John Marshall Speech in the Virginia Convention, 20 June 1788 (F)
• Publius: The Federalist 80, Book Edition II, 28 May 1788 (F)
• Publius: The Federalist 81, Book Edition II, 28 May 1788 (F)
• James Madison Speech in the Virginia Convention, 20 June 1788 (F)
• A Democratic Federalist, Pennsylvania Herald , 17 October 1787 (AF)
• Centinel II, Philadelphia Freeman’s Journal , 24 October 1787 (AF)
• Boston American Herald , 7 January 1788 (AF)
• Luther Martin: Genuine Information X, Baltimore Maryland Gazette , 1 February 1788 (AF)
• Brutus XIV, New York Journal , 28 February 1788 (AF)
• Patrick Henry Speech in the Virginia Convention, 20 June 1788 (AF)

Jury Trials

• An American Citizen IV: On the Federal Government , Philadelphia, 21 October 1787 (F)
• One of the Middling-Interest, Massachusetts Centinel , 28 November 1787 (F)
• An Old Whig III, Philadelphia Independent Gazetteer , 20 October 1787 (AF)
• Federal Farmer: An Additional Number of Letters to the Republican , New York, 2 May 1788 (AF)

Location and Access to Courts

• Patrick Henry Speech in the Virginia Convention, 5 June 1788 (AF)

Organization of the Judiciary

• A Landholder V, Connecticut Courant , 3 December 1788 (F)
• Cassius II: To Richard Henry Lee, Esquire, Virginian Independent Chronicle , 9 April 1788 (F)
• Federal Farmer, Letters to the Republican , c. 8 November 1787 (AF)

Review Powers

• James Wilson Speech in the Pennsylvania Convention, 1 December 1787 (F)
• Oliver Ellsworth Speech in the Connecticut Convention, 7 January 1788 (F)
• Publius: The Federalist 79, Book Edition II, 28 May 1788 (F)

Home — Essay Samples — Law, Crime & Punishment — Criminal Justice — Judicial Branch Is The Weakest

Judicial Branch is The Weakest

• Categories: American Constitution Criminal Justice

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Published: Mar 20, 2024

Words: 548 | Page: 1 | 3 min read

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Lack of enforcement power, dependence on public opinion, limited scope of power, counterarguments.

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• Constitutional Law / LENS Essay Series / Presidential Power
• LENS Essay Series: “Curtailing the Executive Emergency Powers: Congress’s Job, the Judiciary’s Headache”

by Charlie Dunlap, J.D. · 11 April 2024

Today Duke Law 3L Anighya Crocker takes on a very  timely topic: the scope of the President’s emergency powers and the role Congress can–and should–have in scoping these authorities while not hampering the Executive’s need to take quick action when necessary. Anighya makes a very convincing argument that it is best if the legislative branch, not the courts, addresses the necessary reforms.

Here’s the abstract of the article :

This paper examines the expansive nature of the Executive’s emergency powers and argues that Congress should act to reform these powers. The Covid-19 pandemic brought scholarly attention to this issue, but certain academics have advocated for the Judiciary to intervene in reforming Executive powers. Specifically, certain academics have asserted that the Federal Judiciary should abandon its practice of deference to the Political Branches during times of National emergency.

Throughout this era, Congress pawned away many of its emergency powers, placing them within the grasp of the Executive. Simultaneously, the Judiciary developed and maintained its practice of emergency deference.

Part II discusses the modern justifications for judicial deference and criticizes the current push for abandoning deference. Part III briefly outlines steps for Congressional intervention, suggesting reforms to the National Emergencies Act and other relevant laws. Reforms like those listed below do not disrupt the Federal balance but instead reclaim powers that Congress has previously delegated to the Executive.

Altogether, this work stresses the importance of Congressional action in addressing the unchecked growth of the Executive’s emergency powers. Lasting reforms must come from Congress and not the Judiciary.

Again, you can find Anighya’s superb essay here .

About the Author:

At Duke, Anighya serves as a Lead Editor for the Alaska Law Review and is an active member of the Federalist Society. Upon graduating from Duke, Anighya will clerk for the Honorable Judge James C. Dever III of the Eastern District of North Carolina and the Honorable Justice Sarah K. Campbell of the Tennessee Supreme Court before returning to Bass, Berry, & Sims.

Remember what we like to say on   Lawfire ® : gather the facts, examine the law, evaluate the arguments – and then decide for yourself !

Tags: Anighya H.D. Crocker Congress Emergency authorities

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Judicial Branch Employees Have No Rights At Work. The Judiciary Accountability Act Could Change That

A former federal public defender’s employment discrimination case highlights the reality that judges are above many of the laws they enforce.

If you graduate from law school and go work for a law firm, and you’re bullied, sexually harassed, or retaliated against by your employer, your first move is probably filing a complaint with human resources. If that fails, you might explore your options under Title VII of the Civil Rights Act of 1964 , a federal law that protects employees against workplace discrimination based on race, color, religion, sex, and national origin. These laws protect most government employees, too; as of 1995, under the Congressional Accountability Act and the Presidential and Executive Office Accountability Act , Hill staffers and White House staffers can also sue to enforce their rights.

The federal judiciary, however, is exempt from Title VII. So if you’re a law school graduate fortunate enough to land a judicial clerkship—a coveted stepping-stone to prestigious jobs in academia or public service, or a lucrative private practice career—and you’re mistreated by a judge, you have no legal recourse for harms done to your career, reputation, and future earning potential. Right now, judges are above the laws they enforce .

A recent case in North Carolina has brought renewed attention to this ongoing miscarriage of justice. Caryn Devins Strickland worked for just a few years as an assistant federal public defender in North Carolina—her dream job—between 2017 and 2019. As Strickland testified before a House subcommittee in 2022, soon after she started, the first assistant—one of the most powerful people in her office—began singling her out for “training” and unwelcome attention. Colleagues described him as “lustful,” “fixated,” “sexually attracted,” and “wanting” her in “not such a professional way.” In one email, entitled “Mas Dinero,” he told her he required “pay-for-stay,” which, in light of his interest in her, she viewed as quid pro quo sexual harassment.

Strickland raised her concerns with the federal defender, who told her to “work it out” with the person harassing her. He compared their working relationship to a “marriage” in which both people, he explained, have to find a way to “meet in the middle.”

Why Are Judges Above the Laws They Enforce?

Strickland contacted the Administrative Office of the U.S. Courts, which ostensibly provides services and support for judicial branch employees. But she was advised that, although her experience sounded like “ textbook sexual harassment ,” she should find another job, because the judiciary’s internal dispute resolution process, Employee Dispute Resolution (EDR), was “stacked” against employees. The officer responsible for defending Strickland’s civil rights even advised her to call in sick to “protect” herself.

EDR has earned every bit of its poor reputation. The system would be a pathetic excuse for due process if it were one of several options available to victims of mistreatment. For federal judiciary employees, though, it’s the only option. Unlike a Title VII complaint, where the burden is on the employer to investigate and remedy harassment, the burden in EDR is on the employee—a new law school graduate who probably isn’t represented by counsel—to assert and enforce their rights. And clerks have been primed, including by their law schools , to “tough it out” rather than assert their right to a safe and respectful workplace.

Supreme Court Employees Are Fed Up With the Supreme Court

After filing an EDR complaint, the presiding officer—a judge in the courthouse where the complainant law clerk and respondent judge work—reviews it and decides whether to order discovery, contact witnesses, and hold a hearing. Yet fellow judges are notoriously unwilling to discipline their colleagues. Employment attorneys who have represented clerks in EDR characterize it as “a kangaroo court” that “lacks even the appearance of impartiality.” The only real remedy is reassignment to a different judge or federal defender’s office, which is not guaranteed. And unlike a Title VII complaint, monetary remedies are not available, even for employees who can be blackballed by their former employers.

In light of the myriad flaws in the process, most judiciary employees who are mistreated don’t bother pursuing EDR. Instead, they consult a Director of Workplace Relations (DWR), an official tasked with handling law clerk workplace issues, for informal advice. This, too, is wildly insufficient. Clerks tell me DWRs often dissuade them from filing complaints, advising that there aren’t enough other mistreated clerks for a complaint to be successful. Employment dispute resolutions plans, which vary by circuit, are short on specifics , which just gives presiding judicial officers even more discretion in the enforcement process.

Judges Are Terrified of Updating Your Rights For the 21st Century

Strickland did pursue EDR, since she wanted to continue working as a public defender. She requested the chief judge disqualify the federal defender from overseeing the investigation, since he was a named defendant in the complaint. The chief judge, who was “taken aback,” denied her request. In fact, the federal defender appointed the investigator in her case and oversaw the investigatory process, a glaring conflict of interest. The investigator interviewed none of Strickland’s witnesses and did not provide Strickland with a copy of the findings. Following unsuccessful mediation, she resigned only two years into her public defense career.

In March 2020, Strickland sued . Since the judiciary is exempt from Title VII, she asserted her Fifth Amendment due process right to a fair and impartial adjudication of her complaint, as well as her right to a safe and respectful workplace free from discrimination and harassment. Her case finally went to trial in December 2023 after a reassignment to William G. Young, a federal district court judge in Massachusetts. (Several Fourth Circuit judges were named defendants in her complaint.) The court heard closing arguments in Strickland’s case in early January, and she is still waiting on a verdict.

The Judiciary Accountability Act (JAA), a proposed federal law that I and others testified in support of two years ago, would provide much stronger protections to people in Strickland’s shoes. The law would allow them to sue under Title VII, and seek monetary damages for harms to their careers, reputations, and earning potentials. It would standardize EDR plans across all federal circuits and revise the complaint process so investigations can continue even if judges step down to evade accountability . And it would also impose data collection and reporting requirements for, among other things, the outcomes of judicial misconduct complaints, and demographic information about law clerk and public defender hiring. Quantifying these problems is the first step toward implementing meaningful reform.

The fundamental flaws that Strickland’s case exposes can only be remedied by passing the JAA. As a mediator in her case explained to her, “you give up a lot” to work for the federal judiciary. But you shouldn’t have to give up your civil rights.

Aliza Shatzman

Aliza Shatzman is an attorney and advocate in Washington, D.C. She writes and speaks on the subject of protecting judiciary employees from harassment.

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Fact-Checking Trump’s Defenses in His Court Cases

The former president has trotted out a host of false and misleading claims to defend his conduct, attack judges and prosecutors and portray himself as a victim of political persecution.

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By Linda Qiu

Reporting from Washington

As former President Donald J. Trump battles a series of criminal and civil actions while he runs to reclaim the White House, he has put his legal woes at center stage, making them a rallying cry for his re-election.

It is a tactic that is likely to be on full display this week as his trial in Manhattan over his role in a hush money payment in the 2016 race gets underway. Just as he has done with his other legal troubles, Mr. Trump has dismissed the charges in that case as part of an “election interference” scheme orchestrated by President Biden.

He has described the cases against him with colorful hyperbole, defended his conduct with faulty comparisons and lobbed false attacks and baseless accusations at opponents and adjudicators alike.

Asked for evidence of Mr. Trump’s claims, the campaign did not directly address the matter but continued to insist, with no evidence, that Mr. Trump was the target of a “witch hunt” led by the Democratic Party.

Here’s a fact-check of some of his most repeated claims.

How Mr. Trump has sought to undercut the cases against him:

Baseless accusations of a biden-orchestrated conspiracy, hyperbolic claims of persecution, faulty and irrelevant comparisons, inaccurate attacks on judges.

What Mr. Trump Said

“Biden said it. He said — you know what their whole plan is? It was just released the other day. It didn’t — it was leaked by one of the many people that probably thought it was wrong. Their whole plan is to go after Trump in every way possible, especially criminally and legally.” — at a rally in Georgia in March

This lacks evidence. Of the four criminal cases against Mr. Trump, two were brought by state or local prosecutors, meaning that the Justice Department itself has no control over them. His two other criminal cases are overseen by a special counsel, whom Attorney General Merrick B. Garland appointed to avoid the appearance of a conflict of interest.

It is unclear what leak Mr. Trump was referring to, and The New York Times was unable to find an instance of such a plan to target Mr. Trump “criminally and legally.” False posts circulating on social media have used deceptively edited clips to suggest that Mr. Biden or his aides have admitted to weaponizing the legal system.

Still, there is no evidence that Mr. Biden is personally directing the cases against his political opponent. Mr. Biden has publicly emphasized the independence of the Justice Department. Moreover, The Times and other news outlets have reported that Mr. Biden’s campaign strategy is to say nothing about Mr. Trump’s legal woes .

“Jack Smith just admitted what the American People already know, namely, that his case is being directed and supervised by the Biden Administration. So, although he denies it, Garland is carrying out the orders from his boss to prosecute me, and to interfere in the 2024 Election.” — in a Truth Social post in March

This is misleading. Mr. Trump was referring to — and wildly distorting — a court filing from prosecutors in the classified documents case.

The document was responding to a motion by Mr. Trump’s lawyer to dismiss the case, claiming that Attorney General Merrick B. Garland had no authority to appoint Jack Smith, the special counsel in the case. Prosecutors argued that the Supreme Court had affirmed such an authority 50 years ago in the Watergate case, and that many special counsels had been appointed since then, including by the Justice Department under Mr. Trump.

Mr. Trump was apparently referring to a description in the filing of the special counsel’s role, although he used it out of context: “The special counsel was retained from outside of the department to ‘ensure a full and thorough investigation’ of certain sensitive matters. While he remains subject to attorney general direction and supervision, he also retains ‘a substantial degree of independent decision making.’”

“Look, the Manhattan D.A. has a man named Colangelo in there. He was Merrick Garland’s top person. They put him into the Manhattan D.A.’s office. Fani Willis and her lover spent a lot of time in Washington talking about my case. They came out during the hearings talking about my case. The A.G. of New York, Letitia James, deals with Washington all the time.” — in an interview with Fox News in March

This is exaggerated. Asked for proof of his claim that Mr. Biden was personally directing the local cases against him, Mr. Trump pointed to purported ties between prosecutors and “Washington,” but provided no evidence that Mr. Biden had been involved in any of the hiring decisions, conversations or meetings that Mr. Trump cited.

The Manhattan district attorney, Alvin L. Bragg, hired Matthew Colangelo as a senior counsel in December 2022 . Mr. Colangelo previously worked at the New York attorney general’s office and at the Justice Department as acting associate attorney general — the third highest-ranking, not “top,” official — before that position was filled permanently. There is no proof that the appointment of Mr. Colangelo was directed by Mr. Biden or the Justice Department. The two men previously worked together at the New York attorney general’s office under Ms. James’s predecessor, and Mr. Colangelo’s appointment came as Mr. Bragg ramped up his investigation into Mr. Trump’s role in hush money payments made in the 2016 election.

The Times earlier reported that Fani T. Willis, the district attorney of Fulton County, Ga., and her office had been consulting with the bipartisan House committee investigating the Jan. 6, 2021, attack as part of her election interference case. An outside lawyer hired by Ms. Willis — Nathan J. Wade, her former romantic partner who resigned from the case in March — to lead the prosecution met twice with the White House Counsel’s Office in 2022. It is not clear what the purpose of those meetings was, but a former White House counsel told The Times that the office can become involved when prosecutors seek the testimony of former officials.

Mr. Trump often points out that Letitia James, the New York attorney general who brought a civil fraud case accusing him of inflating the value of his properties, has visited the White House three times. According to visitor logs , her first visit was in April 2022 at the South Lawn, where a crowd had gathered to celebrate the confirmation of Justice Ketanji Brown Jackson to the Supreme Court. She again visited in July 2023 to meet with Vice President Kamala Harris and other state attorneys general about efforts to stop fentanyl trafficking . And she visited in August 2023 to attend an event Ms. Harris hosted recognizing Black women serving in public office. The White House has said Mr. Biden did not speak to individual guests at the first event and did not attend the latter two.

“Why didn’t they bring these Fake Biden inspired cases against me 3 years ago? Because Crooked Joe Biden wanted them to be brought right in the middle of my 2024 Presidential Election Campaign, strictly Third World Country ‘stuff!’” — in a post on Truth Social in March

False. Of the multiple cases Mr. Trump has been embroiled in, at least three began before Mr. Biden took office while another three center on Mr. Trump’s post-election and post-presidency conduct. There is no evidence that Mr. Biden has sought to drag out the cases. Investigations and prosecutions generally take time , and Mr. Trump himself has repeatedly sought to delay proceedings.

The inquiry over hush money payments began while Mr. Trump was still in office in 2018. Ms. James began her investigation into the Trump Organization over its financial dealings in March 2019. The writer E. Jean Carroll filed her first lawsuit against Mr. Trump in November 2019, accusing him of defamation.

Ms. Willis opened her investigation into Mr. Trump and his allies’ efforts to overturn the election in Georgia in February 2021. A top Justice Department official said in January 2022 that it had opened an investigation into a plan by Mr. Trump and his allies to reverse the results of the 2020 election; the investigation was widened in March 2022 . Mr. Smith was appointed the special prosecutor in the documents case in November 2022.

“It is a form of Navalny. It is a form of communism or fascism.” — in a town hall on Fox News in February

False. Asked about the ruling in his civil fraud case, Mr. Trump compared himself to Alexei Navalny, the Russian opposition leader who had died days earlier in prison . The two cases are not at all similar.

Mr. Navalny had been behind bars since early 2021, sometimes in solitary confinement, and serving multiple prison sentences. He had also been poisoned in 2020, and survived earlier physical attacks. At the time of his death, he was being held in a penal colony north of the Arctic Circle. In contrast, Mr. Trump was ordered to pay a fine, which was reduced and which he has appealed.

“A bond of the size set by the Democrat Club-controlled Judge, in Corrupt, Racist Letitia James’ unlawful Witch Hunt, is unConstitutional, un-American, unprecedented, and practically impossible for ANY Company, including one as successful as mine. The Bonding Companies have never heard of such a bond, of this size, before, nor do they have the ability to post such a bond, even if they wanted to. The statute used to attack me has never been used for such a purpose before.” — in posts on Truth Social in March

False. A New York State Supreme Court judge ruled in February that Mr. Trump must pay $355 million, in addition to interest — or about $454 million — in his civil fraud case. Mr. Trump initially had trouble securing a bond and argued, wrongly, that both the bond amount and Ms. James’s use of the New York state law were unprecedented.

As PolitiFact has reported, some companies have posted bonds as large as $1 billion. The state statute Mr. Trump cited was enacted in 1956, and has been used by New York attorneys general in lawsuits and actions against the oil giant Exxon Mobil, the tobacco company Juul, and two other entities belonging to Mr. Trump: his family charity, the Trump Foundation, and his for-profit Trump University.

“I got indicted more than Al Capone.” — in a rally in Ohio in March

False. Mr. Trump has been indicted four times. Mr. Capone, the famous gangster, was indicted at least six times, according to A. Brad Schwartz, a historian who has written a biography of him .

“Well, nobody else has been over the years, because, you know, Hillary took a lot and Bill took a lot. Bill took them out in his socks, they call it the socks case, which he won with a very tough judge, which he won. Bush took them. Everybody. Reagan took them out. Everybody took them out. It only became a big subject when I took things out.” — in the Fox News town hall

False. The examples Mr. Trump cites as comparable to the federal criminal case in which he is accused of mishandling classified documents, obstructing justice and making false statements to officials in fact have little in common with it.

Prosecutors say Mr. Trump took hundreds of classified documents from the White House at the end of his term, ignored a subpoena to return them to the National Archives and Records Administration, stored them in locations accessible to resort employees and shared military secrets with visitors to his properties.

Hillary Clinton set up a private email server during her time as secretary of state. While it did store emails that contained classified information, several official inquiries have concluded that Mrs. Clinton did not systematically or deliberately mishandle classified material.

Former President Bill Clinton’s case is even less relevant. A conservative legal group sued the National Archives for access to audiotapes of interviews between Mr. Clinton and the author and historian Taylor Branch . Mr. Branch has said that Mr. Clinton stored the recordings in his sock drawer. A federal judge dismissed the lawsuit in 2012 , reasoning that the National Archives did not have the tapes in its possession and had no obligation or authority to seize them.

And there is no evidence that any presidents before Mr. Trump took classified documents with them upon leaving office, despite Mr. Trump’s repeated insistence that there was a precedent. The National Archives has said that it “assumed physical and legal custody of the presidential records from the administrations of Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush and Ronald Reagan, when those presidents left office.”

“Reports that indicate or imply that those presidential records were in the possession of the former presidents or their representatives, after they left office, or that the records were housed in substandard conditions, are false and misleading,” the agency has said.

“The special counsel’s report tries to let Biden off by claiming that he is too mentally incompetent to convict at a trial.” — in a rally in South Carolina in February

This is misleading. Mr. Trump was referring to the report released by Robert K. Hur , the special counsel who investigated Mr. Biden’s handling of classified material. Mr. Hur described Mr. Biden as a “well-meaning, elderly man with a poor memory” who had “diminished faculties and faulty memory.” He did not declare Mr. Biden mentally incompetent to stand trial.

Mr. Hur wrote that while he believed Mr. Biden knew he was not allowed to keep classified notebooks, there was not sufficient evidence “to prove his willfulness beyond a reasonable doubt.” He added that Mr. Biden’s “diminished faculties in advancing age and his sympathetic demeanor” would make it difficult to persuade a jury to convict him.

“Judge Juan Merchan is totally compromised, and should be removed from this TRUMP Non-Case immediately. His Daughter, Loren, is a Rabid Trump Hater, who has admitted to having conversations with her father about me, and yet he gagged me.” — in a Truth Social post in March

This is exaggerated. Loren Merchan, the daughter of the judge presiding over the hush money case, served as the president of a digital campaign strategy agency that has done work for many prominent Democrats, including Mr. Biden’s 2020 campaign.

The “conversations” Mr. Trump mentioned refer to an anecdote from a podcast interview Ms. Merchan did in 2019 about campaign strategy. In the episode, Ms. Merchan recounted that her father had said in recent conversations: “I hate that politicians use Twitter. It’s so unprofessional.” She said she had argued that there are improper uses of social media, like posts by Mr. Trump sharing “anything that he thinks,” but that social media allows candidates to bypass traditional media.

Experts in judicial ethics have said Ms. Merchan’s work is not sufficient grounds for recusal. When Mr. Trump’s legal team sought his recusal based on his daughter, Judge Merchan sought counsel from the New York State Advisory Committee on Judicial Ethics, which said it did not see any conflict of interest .

“This judge, he levels a fine for $355 million on a loan that’s a fraction of that size because he’s a corrupt Democrat clubhouse judge. He wouldn’t allow a jury. There was no jury.” — at a rally in Georgia in March

False. Mr. Trump’s civil fraud trial did not go to a jury, but not because Justice Arthur F. Engoron, the judge presiding over the case, refused one. There was no jury because it was brought by Ms. James under a New York state law that provides the attorney general with broad authority to investigate corporate fraud and requires adjudication at what is known as a bench trial, which is conducted by a judge alone.

Justice Engoron addressed the unusual setting at the beginning of the trial in October : “You have probably noticed or already read that this case has no jury. Neither side asked for one and, in any event, the remedies sought are all equitable in nature, mandating that the trial be a bench trial, one that a judge alone decides. I promise to do my best, despite my lame attempts at humor.”

“Engoron’s fraudulent valuation of Mar-a-Lago for $18,000,000, when it is worth 50 to 100 times that amount, is another piece of the Election Interference HOAX.” — in a post on Truth Social in March

This is misleading. Justice Engoron did not himself value Mar-a-Lago, Mr. Trump’s Florida club and residence, at $18 million.

“From 2011-2021, the Palm Beach County assessor appraised the market value of Mar-a-Lago at between $18 million and $27.6 million,” Justice Engoron wrote in his September ruling against Mr. Trump.

Mr. Trump, for his part, valued the property at $426 million to $612 million, an overvaluation that Justice Engoron said was at least 2,300 percent of the assessor’s appraisal.

(Mar-a-Lago has a current market value of $37 million, according to the Palm Beach County appraiser. )

Linda Qiu is a reporter who specializes in fact-checking statements made by politicians and public figures. She has been reporting and fact-checking public figures for nearly a decade. More about Linda Qiu

Our Coverage of the 2024 Election

Presidential Race

The start of Donald Trump’s criminal trial in Manhattan  drew intense security, smothering media coverage and loud demonstrations to a dingy courthouse that will be the unlikely center of American politics for the next six weeks.

President Biden will kick off a three-day tour of Pennsylvania , a crucial battleground state, with a speech that focuses on taxes and aims to contrast his policies with those of Trump.

Trump leaned heavily on major Republican donors  in March as he sought to close the financial gap separating him from Biden, new federal filings showed.

Vice-Presidential Calculations: As Trump sifts through potential running mates, he has peppered some advisers and associates with a direct question: Which Republican could best help him raise money ?

Embracing the Jan. 6 Rioters:  Trump initially disavowed the attack on the Capitol, but he is now making it a centerpiece of his campaign .

Mobilizing the Left: Amid the war in Gaza, the pro-Palestinian movement has grown into a powerful, if disjointed, political force in the United States. Democrats are feeling the pressure .

On a Collision Course:  As president, Trump never trusted the intelligence community. His antipathy has only grown since he left office, with potentially serious implications should he return to power .

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Minnesota Judicial Branch

Internal auditor.

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The Minnesota Judicial Branch is seeking an Internal Auditor to perform professional level financial, operational, and compliance internal audit projects within the Minnesota Judicial Branch to determine the adequacy of internal controls, safeguarding of assets, reliability of financial information, compliance with Judicial Branch Rules, and Judicial Council Policy and Procedures. Work will be conducted in a hybrid setting, with approximately 50% of work being performed in-person at the Minnesota Judicial Center, in downtown St. Paul.

Example of Duties

The following are examples of major job duties expected for this position to perform:

• Perform professional level financial, operational and compliance internal audits within the Minnesota Judicial Branch to determine the adequacy of internal controls, reliability of financial information, efficiency of operations, and compliance with laws, rules, and Judicial Policies and Procedures.
• Provide support to the Audit Manager to ensure that the goals and expectations of the Internal Audit Office will be met.
• Participate in or perform all stages of an assigned audit including planning, entrance conference, field work, report writing, exit conference, and audit follow-up.
• Identify and define issues, research criteria, gather data, review and analyze data and information, investigate unusual program transactions and trends, document court processes and procedures, and develop audit observations and written recommendations.
• Conduct special reviews, studies, analyses, and other audit related work as assigned by the Audit Manager.
• Perform audit procedures in accordance with established Judicial Branch work programs and the Standards for the Professional Practice of Internal Auditing.
• Each audit assignment is unique, Internal Auditors need to adapt, design and perform audit procedures based on the audit area’s unique processes, internal controls, compliance requirements, policies and procedures, information technology systems and personnel.

Typical Qualifications

Below are the past experiences that will enable success in the role. For education requirements listed, the equivalent number of years of related experience may serve as a substitute.

Minimum Qualifications

• Bachelor’s degree in accounting, finance, or related field.
• Minimum of 1 year of internal audit experience in reviewing and analyzing financial processes, analyzing data, preparing, and documenting work papers, and drafting audit reports is preferred.

Knowledge, Skills, and Abilities

• Ability to recognize and evaluate transactions of significance deviation from business practice and the ability to research and arrive at reasonable solutions.
• Skills in using business software to collect and analyze complex data, evaluate against set criteria, and drawing logical conclusions from that data.
• Ability to communicate information and ideas clearly, concisely, and respectfully, both orally and in writing.
• Ability to perform and monitor time management to ensure work is completed in projected audit budgets.
• Ability to draft and complete clear, and concise written audit test plans and audit reports that convey objectives, conclusions, and recommendations.
• Ability to work independently.
• Highly organized and detail oriented.
• Ability to reliably travel throughout Minnesota when necessary.

Preferred Qualifications

• Certified Internal Auditor (CIA) designation is preferred. Candidate will be required to acquire this designation after hire.
• Certified Fraud Examiner (CFE) designation is preferred.
• Experience creating and documenting risk assessments.

The expected starting salary range for external candidates is $29.74-$37.90 per hour ($62,097-$79,135 annually). The full salary range for this position is $29.74-$46.05 per hour ($62,097-$96,152 annually). This position is exempt under the Fair Labor Standards Act and is eligible for State of MN employee benefits.

Employee Benefits

The Minnesota Judicial Branch cares about and invests in you as an employee. Because of that, we offer affordable yet competitive benefits to support you and your family’s wellbeing. Our comprehensive benefits package for eligible employees includes health and wellness benefits, enhanced fertility benefits, short- and long-term disability, pension, paid parental leave, tuition reimbursement, and more. The employee-paid premium for a full-time employee with single coverage is only $39.66/month for the Minnesota Advantage Health Plan and $13.48/month for the Dental Plan. Click here to learn more about the benefits we offer.

Minnesota Judicial Branch employees may also be eligible for the Public Service Loan Forgiveness program. This federal program allows qualified individuals to have their loans forgiven after meeting certain requirements working in public service. You can learn more about this program from the Minnesota Office of Higher Education and the office of Federal Student Aid .

Position Logistics

The position is classified as an Internal Auditor and will work normal business hours, Monday-Friday. This work will be conducted in a hybrid setting, with approximately 50% of work being performed in-person at the Minnesota Judicial Center, in downtown St. Paul. This position will require occasional statewide travel.

To Apply: Visit www.mncourts.gov/careers . Complete and submit your online application with cover letter and resume attached by March 21, 2024, at 11:59 p.m. All employment offers are contingent upon satisfactory results of our background check processes.

Why Work for Us?

Minnesota Judicial Branch employees consistently express pride in their public service and in the quality of programs and services provided to customers, as well as appreciation for the teamwork and collaboration that is promoted within the MJB.

We celebrate and are committed to the principles of diversity and inclusion, and actively seek and value diversity in professional background and cultural characteristics. We are intentional and mindful about the organizational culture we are building, seeking broad-minded individuals with robust capabilities who value supporting one another’s growth.

It is the policy of the Minnesota Judicial Branch that all decisions regarding employment are made without discrimination on the basis of disability. Please let us know if you need a reasonable accommodation for a disability to participate in the employee selection process by contacting HR, [email protected].

The Minnesota Judicial Branch is an Equal Opportunity Employer. It is the policy of the Minnesota Judicial Branch that all decisions regarding recruitment, hiring, promotions, and other terms and conditions of employment be made without discrimination on the grounds of race, color, creed, religion, national origin, gender, marital status, status with regard to public assistance, membership or activity in a local human rights commission, disability, sexual orientation, or age. We value and encourage applicants from diverse backgrounds.

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Trader Joe’s and Starbucks are helping Elon Musk undermine the US government

SpaceX is trying to kill a federal agency that accused it of labor violations. Ostensibly progressive brands have leaped to join in

E lon Musk boasts that he’s a “free speech absolutist”, but that didn’t stop his rocket company, SpaceX, from firing eight workers who had criticized him for making light of reports that SpaceX had settled a sexual harassment claim against him.

Not stopping there, SpaceX has moved to put the National Labor Relations Board (NLRB), the US’s top labor watchdog, out of business. Earlier this year, a day after the board accused SpaceX of illegally retaliating against those workers, SpaceX filed a first-of-its-kind lawsuit that seeks to have the labor board – which has successfully overseen relations between business and unions since the 1930s – declared unconstitutional and shut down.

In so doing, Musk and SpaceX have joined a broader, rightwing effort that hopes to hobble the federal government’s ability to regulate business. Indeed, SpaceX’s lawsuit could serve as a potent wrecking ball in the right’s push to weaken and perhaps demolish the administrative state – the network of federal agencies that the US Congress created to, among other things, promote workers’ safety on the job, prevent fraud in financial markets, protect workers’ right to unionize, limit environmental hazards, make sure consumer products are safe and administer social security for seniors.

With their lawsuit, SpaceX and Musk – who owns 42% of that company’s shares and controls 79% of its voting power – are seeking not just to silence the eight employees who criticized Musk, but also to shut down the agency that protects such workers’ rights to speak out at all. Musk, the $180bn man , is throwing a legal temper tantrum because the NLRB has sought to hold him and SpaceX accountable.

Those employees wrote a letter saying: “Elon’s behavior in the public sphere is a frequent source of distraction and embarrassment for us.” They wrote that letter after Business Insider reported that SpaceX had paid $250,000 to silence a company flight attendant who accused Musk of exposing himself and propositioning her for sex. Musk dismissed her in a tweet, saying she was a “liar” and that the incident “never happened”.

The NLRB’s complaint against SpaceX is based on a law, the National Labor Relations Act, that makes it illegal for companies to fire or otherwise retaliate against workers who join together to push to improve work conditions. In their letter, the eight employees also called on SpaceX to spell out its anti-harassment policies and enforce them more effectively.

If SpaceX’s lawsuit succeeds in getting the federal courts to declare the NLRB unconstitutional, it could set a dangerous precedent that other courts seize on to weaken or even eviscerate other federal agencies, such as the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (Osha), and perhaps even the Federal Election Commission (FEC) and the Social Security Administration.

SpaceX’s lawsuit seeks to build on a case in which George R Jarkesy Jr, a rightwing activist and radio talkshow host, persuaded the hard-right fifth circuit court of appeals to declare the Securities and Exchange Commission unconstitutional after it fined Jarkesy hundreds of thousands of dollars for defrauding investors.

In their effort to blow up the NLRB, Musk and SpaceX are hoping to capitalize on the federal judiciary’s sharp rightward turn – a shift accelerated during Donald Trump’s presidency. It shouldn’t be a surprise that SpaceX filed its lawsuit in Texas, the state that arguably has the nation’s most extreme, most activist conservative federal judges. Following SpaceX’s lead, Amazon, Trader Joe’s and Starbucks also filed legal papers seeking to have the NLRB declared unconstitutional.

Like SpaceX, those companies face NLRB charges of illegally retaliating against workers. One way to look at all this is that a band of billionaires – Elon Musk , Amazon’s Jeff Bezos, Starbucks’ Howard Schultz, and Trader Joe’s German owners, the Albrecht family – are seeking to kill the federal agency that protects typical workers when they seek to unionize or merely speak up for better conditions.

Using uncharacteristically tough language, Jennifer Abruzzo, the labor board’s general counsel, slammed SpaceX, Starbucks and the other companies as “deep-pocketed, low-road employers” that seek to stop the NLRB from fulfilling its pro-worker mission “because they have the money to do so”.

“Unfortunately,” Abruzzo added, it seems that SpaceX and the others “would rather spend money initiating court litigation than improving their workers’ lives”.

If these “low-road employers” prevail, the whole NLRB process of holding union elections and prosecuting companies that violate labor laws could crumble. This “would leave US workers more vulnerable to exploitation”, Kate Andrias, a law professor at Columbia, wrote recently.

Of course, for Starbucks and Trader Joe’s, this effort to have the NLRB declared unconstitutional could backfire – sabotaging the “progressive” image they have long sought to cultivate. Many Starbucks and Trader Joe’s customers might be outraged that the companies that furnish them with lattes and organic produce have joined this conservative legal and political assault.

Many legal experts have derided one of SpaceX’s main arguments: that the labor board’s administrative law judges – who determine, for instance, whether a company violated the law by firing pro-union workers – should be deemed unconstitutional. SpaceX asserts that the NLRB’s judges exercise executive functions and therefore that the president, as the head of the executive branch, should be free to fire them. (Under federal labor law, they can be fired only for cause.) SpaceX makes this argument even though it’s crystal clear that the labor board’s judges merely do what judges do: issue judicial decisions.

Moreover, what SpaceX is demanding would allow Trump, if re-elected, to do something that corporate America would hate – fire labor board judges because they upset him by ruling in favor of companies whose CEOs had criticized him or not donated to his campaign. Administrative judges – whether labor board judges, immigration judges or social security judges – have legal protections against being summarily fired so that they can make honest, independent decisions without fear of being terminated for political reasons.

It is sad, if not altogether surprising, that SpaceX, Amazon , Starbucks and Trader Joe’s have joined a rightwing effort to destroy the federal agencies that set the rules that helped make the US the world’s richest nation and Musk, Bezos, Schultz and other billionaires fabulously wealthy. Now these billionaires are seeking to destroy the NLRB so that they can become even more fabulously wealthy.

This is yet another unsettling example of plutocrats exercising their financial might to reshape government to their liking. It’s an effort that, if successful, will hurt millions of average Americans – consumers, workers, small investors and anyone who wants the environment protected.

Here’s hoping that public interest prevails over Musk and the billionaires.

Steven Greenhouse, a senior fellow at the Century Foundation, is an American labor and workplace journalist and writer

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