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PSC 314:  Students' Reading Outlines

Robert McCloskey, The American Supreme Court

Compiled by Dr. Jeremy Lewis, who thanks the student authors.  Revised 17 Jan. 2005. Editing and formatting 27 Jan. 2011

1: The Genesis & Nature of Judicial Power
2: Establishment of Right to Decide
3: The Marshall Court & Shaping nation
4: The Court under Taney:  The National History of Judicial Prestige
5: Gilded Age
6: The Judiciary and the Regulatory State
7: Modern Court & Postwar America
8: Civil Liberties, Civil Rights.
9: Judicial Monitoring of Welfare State

McCloskey Chapter 1: The Genesis and Nature of Judicial Power
Al Zachos, 2005 (another is below)

-Our Constitution was created on June 21, 1788, and it was then that the United States of America sprang into legal being.
-Fifteen months later President Washington accomplished another great juridical feat by signing the Judiciary Act of 1789, which is said to be “probably the most important and the most satisfactory Act ever passed by Congress.”

-It not only established the far-flung system of federal courts but boldly defined their jurisdiction and especially that of the Supreme Court.
-On February 2, 1790, men who had received high commissions and duty met at the Royal Exchange building in New York and organized as the Supreme Court of the United States.  Looking back we can see that this meeting was one of the mileposts in the history of jurisprudence.  The ratifying of the Constitution and the signing of the Judiciary Act greatly opened the walls of judicial power.
-The delegates who framed the Constitution have been praised for creating a document that won the support of a variety of states, and put together such diverse men as Thomas Jefferson and John Adams.
-Ratification was a great step, as for the Supreme Court its future was uncertain.  This was mainly because the Constitution said very little about the Courts or the federal Judiciary in general
Most important of all, the Constitution makes no statement about the power of the Judiciary even when a case falls in its jurisdiction.
  • Those who believe fundamental law should be upheld in the Judiciary would argue that the Constitution is the supreme law of the land, and if the Supreme Court interprets the constitution, then the Court’s word is paramount over all others.
  • However, those defenders of states’ rights would later insist, the fact that the Constitution is Supreme does not settle the question of who decides what the constitution means
  • Nevertheless those four men in the Royal Exchange, without any evidence, had a strong hunch that destiny was beside them and that the Courts would rise to power soon.
  • A common question asked about this subject is, what circumstances made it possible that the Court would play the great part that it has in American life? To sum, we have seen that the meaning of the constitution and the nature of the Courts were left in doubt by the framers, these circumstances gave birth to an early power rise in the courts.  The history of the Court and its treatment of the Constitution can be understood as an endless search for position in American government that is appropriate to these conditions imposed by its genesis.  However, as in all things there must be a balance. Perhaps if the framers had tried to settle all constitutional questions that came along, or if they had assumed the task of circumscribing the judicial power, or perhaps if judges like Marshall had cared a bit more about the future and less about politics, the uncertainties would not be as numerous, and the story would be different.

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    McCloskey Chapter #1
    Sierra R Turner, PSC 314, 2005

    The Constitution clearly established a few principles about which there was no serious colonial disagreement, for example, the representative system for choosing officials and the separation of powers between the departments of the national government.

    The “judicial power of the United States”, whatever it may be, is vested in the Supreme Court and in such other courts as Congress may establish.

    The history of the Court and its treatment of the Constitution can be broadly understood as an endless search for a position in American government that is appropriate to these conditions imposed by its genesis.

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    McCloskey 1: The Genesis and Nature of Judicial Power
    (Vance McBrayer, 2001)

    •June 21, 1788 - New Hampshire was the 9th state to ratify the Constitution
    •15 months later, The Judiciary Act of 1789 was passed; it has been hailed as "probably the most important and the most satisfactory Act ever passed by Congress."
    •Judiciary Act of 1789 established the system of the federal courts and defined their jurisdiction, especially the Supreme Court
    •February 2, 1780 (Groundhog's Day) - 4 of the 6 men appointed by Washington first met at the Royal Exchange building in New York as the Supreme Court of the United States
    •The future of the country was very uncertain at the time because the framers of the Constitution were vague about some issues, and others they left out completely to avoid dealing with them then and risking ratification.
    •The future of the Supreme Court was even more uncertain
    •The Constitution puts the "judicial power of the United States" in the Supreme Court, but it makes no explicit statement about the nature of the Court's power even when a case falls in its jurisdiction.
    •There are several arguments about the judicial power of the Court. One states that if the Constitution is supreme and the Supreme Court has jurisdiction over case involving the Constitution, then the Court's ruling on such matters is supreme over all. The second says that the fact that the Constitution is supreme does not settle the question of who decides what the Constitution means.
    •The fact that judicial review was not completely understood allowed the judges to build up the Court's power gradually
    •The old doctrine of fundamental law was stimulated by the events and ideas of the Revolutionary War. Also, the movement for revolution gave rise to popular sovereignty as well.
    Popular sovereignty suggests will; fundamental law suggests limit
    •With Americans so divided, they were receptive to an institution that reflected each of these values separately, and so it had public support.
    •The Constitution posed more questions than it answered.
    •The framers said that the Constitution means whatever the circumstances of the future will allow it to mean
    •The Supreme Court has to blend judicial functions with policy-making functions in a complex mixture
    •McCloskey compares the necessity that it perform legislative tasks with judicial tools to someone playing baseball with billiard cue.
    •The history of the Court and its treatment of the Constitution can be broadly understood as an endless search for a position in American government that is appropriate to these conditions imposed by its genesis.

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    McCloskey 2: The Establishment of the Right to Decide
    Larry McLemore, 2003

    In its early stages, the Supreme Court had three "role problems" to resolve:

    1789-1801 most cases had separate decisions written by all justices which created a fragmented  Supreme Court.  The Court also was cautious not to perform legislative duties.  Alexander Hamilton had written about judicial review power in the Federalist Papers (No.78).

    In Chisholm v. Georgia a challenge was posed to state sovereignty.

    The Alien and Sedition Acts had been supported by the federalist justices, and Virginia and Kentucky resolutions challenged national supremacy.
    The Federalists who had lost the election of 1800 to the Jeffersonian Republicans passed the Judiciary Act of 1801 which created new federal judgeships, but this act was soon repealed. Marbury v. Madison (1803)
  • Chief Justice John Marshall cleverly sets precedent for the first time ever for the Supreme Court to have the power of judicial review.
  • Marshall opined that Section 13 of the Judiciary Act of 1789 was invalid because it gave the Court more power that the Constitution had specified under its "original jurisdiction."
  • By this opinion Marshall was declaring an act of Congress invalid because it went against the Constitution.
  • This also set a precedent for judicial independence and strict construction of the Constitution.
  • Fletcher v. Peck (1810)
    This case laid the basis for the rule that the state is bound by its contracts.  Also, this was the first precedent that the Supreme Court can hold state laws unconstitutional (this was an unstated premise of the opinion).
    By 1810 the Court had established judicial independence and review, and was building judicial sovereignty.

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    Ch. 2: The Establishment of the Right to Decide
    Sierra R Turner, PSC 314, 2005

    The Court’s “interests” are likely indeed to be affected by the historical context, but historical imperatives can be strengthened or weakened by the Court’s eagerness or reluctance to accede to them.

    From 1789 until the Civil War, the dominant interest of the Supreme Court was in that greatest of all questions left unsolved by the founders- the nation-state relationship.

    The judges of the pre-Civil War years had three major “role problems” before them….
    o In the first place they must establish, not merely in theory but in practice as well, the doctrine of judicial independence. It is true that this doctrine was well rooted in colonial tradition and that the framers had tried to implement it by providing life tenure during “good behavior” for federal judges and by prohibiting reduction of their salaries….
    o Second, the Court  must gain acceptance for the idea that among the powers thus independently exercised was that of judicial review, that is, the power to refuse to enforce an unconstitutional act of either the state or national government.
    o And finally that power itself must be nourished and cultivated so that it will grow into the doctrine of judicial sovereignty, or the idea that the law may be held unconstitutional if the Court thinks it is, even though the case is not plain, and that the Court’s opinion to this effect is binding on other branches of government….
    As Chisholm v. Georgia suggests, then, the pre-Marshall Court was fully conscious that its greatest problem was the nation-state relationship, and it was heavily disposed to create, or to encourage the creation of, a consolidated national union.

    Chief Justiceship John Marshall’s preeminence among the builders of the American constitutional tradition rests not only on his well-known boldness, his “tiger instinct for the jugular vein” as an enthusiastic metaphorist once called it, but also on his less-noticed sense of self restraint.

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    Ch.3, The Marshall Court and the Shaping of the Nation
    By Ryan Rice, Spring 2005 (another is below)

    The Supreme Court spent many of its first years discovering itself.

    Early problems for the Court included questions of whether or not the Court’s decision was final, if the Court could call on the other branches to account, and if the Court would exercise a general supervision over some governmental affairs. The great operative phrases of the Constitution were: the supremacy clause, the contract clause, the necessary and proper clause, and the commerce clause.
    The Courts progress was aided by the states being so individualistic that they defeated themselves.
    One of the Court’s greatest problems was the problem of its right to review decisions of state courts involving the validity of acts undertaken by the state governments. Important Cases:

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    Chapter 3, The Marshall Court and the Shaping of the Nation
    Sierra R Turner, PSC 314, 2005

    Marshall believed that the more America was guided by judges the happier and more just the system would be.

    Marshall’s greatest task was augmenting the judicial power and shaping the Constitution into a charter for nationalism. McCulloch v. Maryland in 1819 is by almost any reckoning the greatest decision John Marshall ever handed down- the one most important to the future of America, most influential in the Court’s own doctrinal history, and most revealing of Marshall’s unique talent for stately argument. … He could have comforted himself with the thought that no court in world history had ever done so much to affect the destiny of a great nation.

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    chapter 3: The Marshall Court and the Shaping of the Nation: 1810-1835
    (David Abbott, 2001)

    Up to this point, the Court is merely trying to establish a fragile status.

    Chief Justice John Marshall has two main goals: Court finally feels confident enough to declare a state law unconstitutional War of 1812 reversed parties on the issues; Federalists, in opposition to the War, began to talk of states' rights, while Republicans, in defense of it, argued for federalism. This temporary ambivalence of the Courts Jeffersonian opponents helped strengthen the Court. The Court Over the States
    Court was constantly challenged on its right to review decisions of state courts and state governments. Court had tried to ignore these arguments until it confronted them in the case of Martin v. Hunter's Lessee. The Enhancement of National Power Judicial Allies and Private Rights First contract clause decision was Fletcher v. Peck in 1810. Dartmouth College v. Woodward in 1819: state wanted to alter the charter of the school, changing its name and its board of trustees to convert into a state institution. The Achievement of John Marshall Summary of Important Points Summary of Cases and Precedents
  • Judicial Sovereignty over States

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    4: The Court under Taney:  The National History of Judicial Prestige
    Patrick Dean 2005

    Post Marshall Era

    The Nation-State Problem and the Court’s Policy of Moderation
    The Court heard three cases that dealt directly with the nation state problem and doomed itself to the reputation it received. However, the Taney Court’s decisions were generally of compromise and upheld some key factor of “National
    Supremacy”.  The three early decisions along with MuCulloch v Maryland upheld the notion and pushed Marshall’s
    legacy onward.

    The Pride of Power and the Slavery Question

    Decline Without Fall

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    McCloskey Chapter #4
    Sierra R Turner, PSC 314, 2005

    After John Marshall’s death in 1835 President Jackson appointed Roger B. Taney to succeed him. He was appointed, and confirmed by the Senate after a bitter wrangle in March of 1836.

    The concept of judicial sovereignty, which Marshall had nurtured so lovingly and defended against so many challenges, was by 1840 an almost unquestioned premise of American government.

    The notion that the Court could legitimately co-operate with the “political” branches in dealing with such an issue was almost equally self-destructive, for the Court’s claim to public regard rested heavily on the belief that its work was distinguishable from “politics”.

    In 1850 the Court enjoyed popular support as nearly unanimous as can ever be expected in a diverse democratic society. It was playing a modest but significant part in the affairs of the nation. Eight years later, it had forfeited that position, and its role in the American polity was nearly negligible.

    The Taney Court fashioned a system of jurisprudence and a judicial image; and the nation had learned to accept one and to admire the other. The judges had maintained a clear line of connection between Marshall’s doctrines and their own.

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    5: Gilded Age.
    Sierra R Turner, PSC 314, 2005
    The Marshall and Taney Courts had been perennially haunted by the danger that centrifugal forces would tear the nation apart, and their jurisprudence had been shaped with that terrible threat always in mind.

    Another great difference between the old constitutional environment and the new was slower to reveal itself fully but in the long run even more important to the future of judicial review. It was, or course, that capitalism, developing at a rapid but relatively moderate tempo in prewar years, had been given an enormous accelerating thrust by the war and was now proceeding at a pace of headlong expansion that was unexampled in the nation’s history.

    A Court committed by its tradition to the cause of property rights, composed of judges who were inevitably drawn largely from the ranks of the “haves” and who were of course by definition lawyers and this imbued with the conservative bias that has always characterized the American legal fraternity.

    The Legal Tender Cases then blended the motifs of war and reconstruction with the more purely economic themes that were to dominate the Court’s value system in the near future. Somewhat the same qualities were apparent in the Slaughter-House Cases of 1873, one of the great landmarks in Constitutional history….

    With the maturation of substantive due process in the closing years of the nineteenth century, the Supreme Court was at length adequately equipped to play a part in resolving the major issue of the era- that of business-government relationships.

    The Court finally adjusted itself and the Constitution to the altered conditions of the postwar order.

    The once preponderant issue of federalism was now subordinated to the government-business preoccupation the formerly ruling value of nation-government-business preoccupation: the formerly ruling value of nationalism was replaced by a judicial ideal called economic freedom.

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    Chapter 6: The Judiciary and the Regulatory State
    (Krista Leachman, Spring 2003)
    -The Power to Tax and Judicial Subjectivism
        -judges moral instincts was thought of as a guide to some but they really needed a legal rule
        -they needed a formula to be able to tell the difference between permissable and interpermissable economic status
        -federal income tax law was passed in 1894, which exempted incomes up to $4000 and imposed a levy of 2 per cent above the amount
         (an attempt to tax the well off people)
    -MuCulloch v. Maryland (1819)
    "the power to tax involves the power to destroy"
    -another problem- tax laws might endanger the principle of laissez faire
    -The difficulty is illustrated when we compare McCray v. U.S. in 1904, with the Child Labor Tax Case in 1922.
    -New Check Reins on the Commerce Power
        -The court announced that the power to prohibit goods from moving through interstate commerce was subject to limitations previously unknown.
        -high point of judicial toleration was reached in the Dayton-Goose Creek Railway case of 1924- upheld Transportation Act of 1920
    -Due Process and the Court's Rearguard Action
        -In tax and commerce cases, the Supreme Court had conducted only occasionals and limited forays against the welfare state
        -due process means the same in the fifth and fourteenth amendments-very flexible
    -Normalcy and Judicial Laissez Faire
        -From 1920-29 the number of negative decisions under the fourteenth amendment was almost double the number in the preceding decade.
    -The Judicial Challenge to the New Deal
        -The majority of cases of the 20th century through 1934 seem to reflect the former, modest approach.
        -Nebbia decision suggested a judicial temper.
        -June 1936-Close of 2 year joust with the New Deal
    -Echoes of the Future: Emerging Problem of Civil Rights
        -Schenck case-involved a federal law and the question of whether free speech guarantees applied to the states by way of the fourteenth amendment was still comparatively untouched
    -Constitutional Revolution of 1937

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    7: Modern Court & Postwar America
    (Tyler Fletcher 2005)

    The situation of the Supreme Court immediately after the constitutional revolution of 1937 was in many ways
    analoguous to its situation at the close of the Civil War

    The rise of totalitarianism created new problems for America and cast a different light on old problems. The End of Economic Supervision
    The first order of business was to convince the informed public that the court really meant what it implied in 1937:
    that economic issues were no longer of much constitutional relevance Humility Versus Pride: International Agreements and Executive Power
  • Events suggests a judiciary overwhelmed and resolved to interfering as little as possible particularly when national power was involved
  • The modern court had for practical purposes abandoned the concept of judicial control and has thrust the responsibility for worrying about constitutional limits on the shoulder of the President and Congress
  • President Truman seized the Steel mills in order to avert a nationwide strike; This rested on the old Idea that the President possesses certain “Inherent Powers
  • The Opinion of the court said the President had no right to do this because the subject was within the authority of Congress
  • The Court Seeks a Role: The Problem of Freedom of Expression
    The subject the modern court seems to care most about in civil rights Judicial Successes and Failures: The Problem of Procedural Rights Racial Discrimination and The Boundaries of Judicial Power
    Racial discrimination has been handled differently; Here the court has been more venturesome and more confident in announcing its proscriptions
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    Chapter 8- Civil Liberties, Civil Rights and The Supreme Court
    (Matthew F. Glarrow)

    -McCloskey believed that the Court, “had indeed learned the lesson he believed taught by history.
    -2 cases mentioned: -4-year period between 1961-1965, “...one of the most creative and daring periods in constitutional history.”  The Civil Rights Movement and the Constituion
    -civil rights movement afforded the Court many opportunities to decide what its own role would be throughout this “...struggle for racial justice.”
    -Civil Rights Act of 1964-“...outlawed racial discrimination in restaurants and other public accommodations,”
    Katzenbach v. McClung
    New York Times v. Sullivan (1964)
    The Supreme Court and Freedom of Speech
    -“The Court was also willing... to turn ‘freedom of speech’ into a more general ‘freedom of expression.’”
    -Court was more willing to protect many forms of “non-political,” which traditionally received, “...far less protection than ‘political speech’ directed at public issues.”
    -3 most outstanding issues within “free speech” litigation: 1) “the financing of political campaigns;” 2) “the regulation of non-print media;” 3) “and access to public property to convey one’s views.” -Final issue: “...involves the states power ‘indirectly’ to regulate speech through exertion of its power as a property owner.
     The Court Confronts the Criminal Justice System Equal Protection Comes Into Its Own Enter Privacy: A Second Era of “Substantive Due Process”

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     Ch. 9: Judicial Monitoring of the New Am. Welfare State
    Jarret Layson Spring 2003

    welfare state -active dispensation by the state of funds or services to recipients chosen at least in basis that they have legitimate needs
    -dominant motif of the last third of the 20th century is the growth of governmental programs
    Questions Confronting Court
    1. what extent was the gov't required to take account of the welfare needs and to supply at
    least some to those having inadequate financial resources
    2. must the state give some degree of "due process" to persons when making decisions of eligibility
    3. place reasonable conditions on what state can ask
    4. how much freedom does the State have in defining those general classes of persons eligible?
    -first move toward recognizing an affirmative right to economic assistance came in regard to indigent criminal defendants

    Gideon v. Wainwright (1963)

    -adopted per-se rule to replace the case by case general standard: who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him
    Shapiro v. Thompson -argument for "welfare rights" gained momentum
    Deshaney case
    -most dramatic illustration of the Court's resistance to finding affirmative rights
    -after 1969 Court basically accepted no invitations to declare new rights of the poor that
    suggested a constitutional duty to rescue
    San Antonio Independent School District v. Rodriquez
    -most visible sign of the Court's unwillingness to expand notions of constitutional entitlement
    -decided education was not "fundamental interest"
    Spectrum of Constit. limits on conditions states place on willingness to deal with recipients
    -Holmes: one end of the spectrum
    -Douglas: on the other end
    Supreme Court offered case-by-case decisions as opposed to sweeping pronouncements
    Race and the Welfare State
    -Brown v. Board
    Race and the Affirmative Action
    -Bakke v. Regents of the University of California
    1st major "affirmative action" case
    -Sharp divisions on the Court concerning the overt use of race as a classification were
    reflected as controversies involving the differential impact of programs on various racial groups
    Gender and Welfare State
    Mississippi University for Women v. Hogan
    -gender segregated education would be challenged in same way that racially segregated schools had
    -as with race, the Court must confront impact as well as intent Court fairly quickly
    determined that it would require the latter and ignore the former in regard to gender
    Religion and the Welfare State  -school prayer issue
    Defining the Community of Welfare Recipients
    Plyler v. Doe
    -most controversial of all such decisions
    -national citizenship raises the most basic questions of political community, but the US
    continues to be faced with residual questions about the meaning of membership in state communities

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