PLSC471:

Learning Objectives and Key Terms

Learning Objectives

On the completion of this part of the course, the student should be able to:

• Read a Supreme Court case and know what parts are important
  
• Understand the mechanism and importance of judicial review
  
• Understand the importance of standing, as well as its elements and requirements.

Key Terms

judicial review	constitutional limits
prudential limits	ripeness
mootness	Marbury v. Madison

 

Overview

This part of the course is designed to familiarize you with how to read a Supreme Court case, understand judicial review and the concept of constitutional and prudential limits on the Supreme Court’s jurisdiction.

 

Commentary: Judicial Review

The first thing to do, before beginning your reading of Marbury v. Madison, is to read the piece by Orin Kerr “How to Read a Legal Opinion.”  This piece is available online – see the syllabus for the link.  Reading a legal opinion will be unlike other reading you may have done for classes.  There is a specific format that most cases follow, as well as specialized legal terms to know. 

Although the cases assigned may not look very long, when you first begin reading them, you may find yourself taking far longer to read and understand what a case is saying than you would ordinarily take on a textbook excerpt of similar length.  I promise, as the semester goes on, the reading becomes easier as you become more familiar with how opinions are written.

Something else to keep in mind – the Supreme Court is not always of a like mind when deciding legal issues.  You may already be aware that the Court is often fractured when rendering its decision.  You may have heard phrases such as “the Court issued a 5-4 opinion.”  Members of the Supreme Court may author one of four types of opinions.  If an opinion garners the votes of at least five justices, then it will be the Majority opinion.  This opinion has the force of law and binds all lower courts.

If, as discussed previously, a justice authors an opinion that agrees with the majority as to the outcome, but not the legal reasoning used, the justice has authored a concurring opinion.  This opinion is not legally binding, unless it is adopted by a majority of the Court in a later decision.  While it may seem counterintuitive, sometimes it is the concurring opinion that stands the test of time, while the majority fades away into obscurity.

A justice who disagrees with the outcome of the majority opinion might author a dissenting opinion.  A dissenting opinion is almost always written when the Court is divided, although it’s possible for several justices to join a dissenting opinion.  Thus, in a 5-4 case, there may be only two opinions written.  A dissenting opinion is not legally binding on lower courts, although it may become the majority opinion in a subsequent case.

Finally, a justice may write a plurality opinion.  This is an opinion that is signed onto by less than five justices, but expresses the outcome the Court desires.  This usually occurs when you can find a majority of justices to agree to the outcome (who wins and who loses) but you cannot find five or more justices who agree on the legal reasoning used in arriving at that outcome.  A plurality opinion is persuasive, but not binding.  Typically, a plurality opinion will be coupled with a concurring opinion to form the majority needed to decide the case.  One famous example of a plurality opinion is Planned Parenthood v. Casey.  In this case, a three justice plurality wrote the main opinion, while two other justices voted in favor of Casey, but for very different reasons.

One final note – it is possible for the Court to issue a per curium opinion.  These are usually, though not always, unanimous opinions, and have no specific authorship.  They are really the “opinion of the Court.”  We will not be reading many, if any per curium decisions.  Most opinions, even unanimous ones, have specific authors who are identified.
Once you have read the Kerr piece, you can turn to the assigned cases.

 

Marbury v. Madison

The first case I have you read, and indeed the first case most law students read, is Marbury v. Madison.  This case is largely credited with the creation of judicial review, which is the power of the US Supreme Court to review pieces of legislation passed by Congress and potentially strike them down if they are inconsistent with the US Constitution.

It is important to note that this is something of a fiction.  Eminent legal historian Philip Hamburger has traced the roots of judicial review back much further, to the days of the early colonies.  However, at the dawn of the new republic, it was unclear if the Court had the power to strike down laws passed by the democratically elected branches of government.  Marbury v. Madison answered this question.

The case involved a man, William Marbury, who was appointed to be a Justice of the Peace in Washington, DC at the end of the Adams administration.  Upon taking office, Thomas Jefferson refused to grant Marbury his commission.  He sued future President, James Madison, Jefferson’s Secretary of State, whose job it was to deliver commissions.

Specifically, Marbury asked the Court to grant him a writ of mandamus.  This writ is a an order from a court to a government official, basically ordering them to do their job.  In this case, Marbury wanted the Court to order Madison to give him his commission.  As you read the case, keep in mind the three questions posed by the Court:

1. Does Marbury have a right to his commission?
2. If so, do the laws of his country afford him a remedy?
3. If so, is that remedy a writ of mandamus from the Supreme Court?

An important note about Marbury v. Madison.  In many ways, it is an opinion that is written backwards.  In order to understand what I mean by that, you need to know that every legal opinion has two parts: 1) the ratio decidendi, the reason for decision and 2) obiter dicta, (usually just dicta), which is other statements by the Court which are not essential to the decision.  Dicta is not binding in future decisions, but is instead something said in passing by the Court.  Most of Marbury is dicta. 

Traditionally, the Court tries not to decide any more than is strictly necessary.  Thus, if they determine that a party does not have “standing” (the right to sue), it will say so up front and refuse to address the merits of the underlying claim.  In Marbury, the Court does the opposite.  They address the underlying merits before ultimately deciding that they do not have the right to hear the case, because Congress overstepped the bounds of the Constitution in passing the Judiciary Act of 1789.

The rest of the readings examine the expansion of judicial review by the Court.  As you read, ask yourself – how does the Court justify the particular exercise of judicial review?

Standing and Other Limits on Judicial Review

Not everyone has the right to bring a case for review in court.  In order to successfully sue another party, be it an individual, a corporation, or an arm of the government (local, state or federal), the person suing has to show they have the right to file the lawsuit.  The easiest way to show this is to be the injured party. 

If you are parked at a stoplight, and I rear end you, you have been injured and thus have the right to sue me.  The doctrine that discusses the limits of those who can sue is known as standing.  There are three requirements for standing: there must be an injury in fact, the person you’re suing must have caused the injury, and the remedy you are seeking must be able to redress the injury you’ve suffered.  If any of these three are absent, you will not have standing, and the court will dismiss your case.

The reason for standing is two-fold.  There are both constitutional and prudential reasons that the Court requires standing.  Prudential reasons are those created by the Court because it believes that it is the best policy to limit standing in certain circumstances.  These can be changed or waived by the Court at any time.  Constitutional reasons are found in Article III and the Court is not free to ignore them.

Specifically, Article III of the Constitution grants the Supreme Court jurisdiction to hear only “cases and controversies.”  Unlike some state Supreme Courts and other courts throughout the world, the Supreme Court cannot issue advisory opinions.  It requires that the issue before it be a genuine dispute between two parties.

In order to ensure that the issue gets a fair hearing, the Court wants to ensure that those who argue both sides have a genuine stake in the outcome, so that they will endeavor to make the best possible arguments in support of their side.  Thus, they limit those who are allowed to bring suit.  The cases in this portion of the readings deal with the limits on standing.

A few brief notes – in general, taxpayers may not sue merely on the basis of having paid taxes, because there is no way to trace your specific contribution to an allegedly improper purpose.  However, the Court has made some exceptions to this general doctrine.  Flast v. Cohen lays out those exceptions.

Additionally, an organization may sue on behalf of its members so long as at least one member would have the right to sue on their own behalf.  Both Lujan v. Defenders of Wildlife and Friends of the Earth v. Laidlaw rely on this sort of standing, although the Court is examining the components of those individual claims.

Finally, the readings this week cover two other prudential doctrines that limit the jurisdiction of the Court to hear cases.  These doctrines are ripeness and mootness.

Ripeness and Mootness

A case is ripe if the injury has already occurred or is imminently about to occur.  The Court does not like to hear cases where the harm is speculative, or has not yet occurred, because there is a risk that the harm may never occur.  This would render any opinion by the Court advisory.

Mootness comes at the issue from the other direction.  A case is moot if the controversy that gave rise to the claims is no longer an issue.  For example, in the above car accident example, if I were to pay you as part of a settlement, the issue would be moot.  Therefore, the Court would refuse to hear the case.

There are three exceptions to the mootness doctrine.  First, a party cannot claim the protection of mootness if the only reason the case is moot is because the defendant voluntarily ceased their illegal activities.  Thus, if you sue a chemical plant for dumping waste into a lake, they cannot avoid your lawsuit by stopping the dumping on their own.  This is an exception because they could always restart dumping once the case is dismissed.

Second is a class of cases which are “capable of repetition, yet evading review.”  Cases take years to reach the US Supreme Court, but some issues will come to fruition before the Court can hear the case.  The classic example of this is Roe v. Wade.  Jane Roe was suing for the right to terminate her pregnancy.  However, because it only takes nine months to have a baby, Jane Roe’s baby was born before the case reached the US Supreme Court.  If the Court were unable to hear her case, they could never rule on the issue, because no one has a long enough pregnancy.  But because Jane Roe could become pregnant again, the Court decided to hear the case.

Finally, members of a class action lawsuit may join and leave the class over time, even the named plaintiff.  In that case, the lawsuit may continue, so long as some member of the class has standing.  An example of this would be the lawsuits against the tobacco companies.  The named plaintiff, and others, may die of lung cancer during the course of the lawsuit, which would normally moot the suit between the individual and the tobacco companies.  But new people are getting lung cancer from smoking every day.  Thus, so long as some members remain in the class, the Court will hear the case.

 

Activities

Discussion

Participate in the discussion for this lesson.

"On deck" group leads the discussion. Others follow and post reflections on the discussion.

Essay

Compose one essay on judicial review.  The essay should answer the question

• “Should an unelected minority have the power to overrule the will of a democratically elected majority?  If so, under what circumstances?  If not, why not?”

Essay not to exceed 5 pages.

Submit your essay in the dropbox for this lesson.