Art of Judging

Volume 8

James. E Bond

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351316262
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

The single most important issue in American constitutional law is the role the Supreme Court should play in interpretation of the constitution. This issue has been a source of controversy since at least 1803, when Chief Justice John Marshall proclaimed that the Supreme Court could declare acts of Congress unconstitutional. But public attention has been refocused by the recent debate between Attorney General Edwin Meese and Supreme Court Justice William Brennan. The Attorney General admonished the Justices to confine themselves to strict construction of the Constitution-to apply the Constitution as the framers intended. Justice Brennan rejected this as errant and arrogant because the framers had certainly not thought about the specific problems facing the country today.

NOTES

Introduction

1. 3C. Bowen, The Lion and the Throne 370-74 (1956).

2. Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 Ga. L. Rev. 969 (1977).

3. Quoted in J. Bond & C. Rose, Introduction to Legal Skills 208 (1978) (unpublished materials).

Chapter I

1. The debate (into which Justice John Paul Stevens (1975- ) subsequently entered) is composed of a series of public addresses delivered at different places and times. It is collected in Addresses—Construing the Constitution, 19 U.C. Davis L. Rev. 1 (1985).

2. Id. at 7 (address by Justice Brennan). Justice Brennan stated more traditional and conservative views at his confirmation hearing. 6 R. Mersky & J. Jacobstein, The Supreme Court of the United States Nomination 1916-72 at 40 (1975). (The Constitution may be altered only by amendment). In his speech Justice Brennan breaks the activist’s vow of secrecy, which had prompted Judge Richard Posner to comment:

Activists are ashamed to admit in public what they are about; they make you read between the lines. Although activism is respectable enough among academics today, it still is not sufficiently respectable among the general public for judges to dare to admit that they are activists; and this is the best evidence that judicial activism, 1984 model, is indeed unprincipled.

Posner, The Meaning of Judicial Self-Restraint, 59 Ind. L. J. 1, 18 (1983).

3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

4. Jefferson’s Republicans made the first attempt: they sought to impeach and remove the Federalist Samuel Chase. Had they succeeded, they would have gone after John Marshall. See generally, Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971). As recently as the Nixon administration, Congressmen threatened impeachment of Justices Douglas and Fortas.

5. The Federalists first employed this stratagem in 1801, passing legislation that would have reduced the Supreme Court from six to five upon the first resignation or death of a sitting Justice. Thus, Jefferson would have been deprived of an early opportunity to appoint a Republican Justice. The most famous such stratagem was Franklin Roosevelt’s 1937 proposal to pack the Court by appointing an additional Justice for every Justice who remained on the bench after age 70. See generally, Baker, Back to Back—The Duel Between FDR and the Supreme Court (1967).

6. The most famous instance was the Reconstruction Congress’s act of March 27, 1868. It removed the Court’s jurisdiction over a class of cases, including one—Ex Parte McCardle, 74 U.S. (7 Wall) 506 (1869)—that was sub judice. Congress hoped thereby to forestall judicial review of its Reconstruction policies. See Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz. L. Rev. 229 (1973). In recent years hearings have been held and legislation introduced to restrict Supreme or federal court review of desegregation cases, abortion cases, and school prayer cases. See generally, Baucus & Kay, The Court Stripping Bills: Their Impact on the Constitution, the Courts, and Congress, 27 Vill. L. Rev. 988 (1982).

7. For example, Lincoln appointed Chase because he wanted someone who would vote to sustain the Legal Tender Acts. Jefferson appointed Johnson because he wanted a states’ rights advocate on the bench. Roosevelt appointed Black because he wanted someone who would construe the Constitution liberally. Nixon appointed Burger because he wanted a law and order judge on the bench.

8. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution.”). But see Jackson’s message of July 10, 1832, vetoing the bill to recharter the Bank of the United States, 2 Messages and Papers of the Presidents 576, 581-3 (Richardson ed. 1896). Of Cooper v. Aaron, Professor Erler correctly states: “[It] utterly confounds the Constitution and the Court’s exposition of it; in a word, it conflates the Constitution with constitutional law.” Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 Harv. L. J. Pub. Pol. 399, 407 (1985).

9. E.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (Congress has plenary authority over interstate commerce); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (Congress may exercise unspecified powers in order to execute powers specifically delegated to it). See generally, Gunther, Toward ‘A More Perfect Union’: Framing and Implementing the Distinctive Nation Building Elements of the Constitution, Aspects of American Liberty—Philosophical, Historical, and Political (Corner ed. 1977).

10. The classic statements are found in the 1798 Kentucky Resolutions (authored by Jefferson) and the Virginia Resolutions (authored by Madison). Madison, for example, protested against the tendency of the “Federal Government to enlarge its powers by forced constructions.”

11. Letter to William C. Jarvis (Sept. 28, 1820), 10 The Writings of Thomas Jefferson 160 (Ford ed. 1899).

12. See generally, C. Warren, 1 The Supreme Court of the United States in History 514-40 (1935).

13. Even Holmes ascribed much of Marshall’s work to “the convictions of his party.” O. Holmes, Speeches 90 (1913).

14. See generally, F. Frankfurter, The Commerce Clause under Marshall, Taney, and Waite (1937).

15. See Taney’s opinions in Mayor of the City of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837); The License Cases, 46 U.S. (5 How.) 504 (1847); and The Passenger Cases, 48 U.S. (7 How.) 283 (1849).

16. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).

17. See generally, J. Alsop, The 168 Days (1973).

18. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (code promulgated under NIRA unconstitutional); Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935) (compulsory pension program unconstitutional); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (NIRA itself unconstitutional); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (Bituminous Coal Conservation Act of 1935 unconstitutional); United States v. Butler, 297 U.S. 1 (1936) (Agricultural Adjustment Act of 1933 unconstitutional).

19. See 4 The Public Papers and Addresses of Franklin D. Roosevelt 212 (1938).

20. For a thorough and provocative review of the Warren Court’s jurisprudential romance with equality, see A. Bickel, The Supreme Court and the Idea of Progress (1970).

21. See, e.g., L. Lusky, By What Right? (1975).

22. Baker v. Carr, 369 U.S. 186, 301 (1962) (dissent).

23. Shapiro v. Thompson, 394 U.S. 618, 677 (1969) (dissent).

24. Compare Lockner v. New York, 198 U.S. 45 (1905), with Williamson v. Lee Optical Co., 348 U.S. 483 (1955); compare Buck v. Bell, 274 U.S. 200 (1927), with City of Cleburne v. Cleburne Living Center, 105 S. Ct. 3249 (1985).

25. Compare United States v. E. C. Knight Co., 156 U.S. 1 (1895), with Wickard v. Filburn, 317 U.S. 111 (1942).

26. Compare Abrams v. United States, 250 U.S. 616 (1919), with Brandenburg v. Ohio, 395 U.S. 444 (1969).

27. See, e.g., B. Siegan, Economic Liberties and the Constitution (1980); W. Berns, The First Amendment and the Future of American Democracy (1976).

28. Board of Education v. Barnette, 319 U.S. 624 (1943).

29. Id. at 646, 670 (dissent).

30. Griswold v. Connecticut, 381 U.S. 479, 507 (1965) (dissent).

31. See Trop v. Dulles, 78 S. Ct. 590, 608 (dissenting opinion of Justice Frankfurter):

Rigorous observance of the difference between limits of po...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• INTRODUCTION
• I. THE DEBATE: How Should Justices Interpret the Constitution?
• II. THE CHOICE: Should Justices Act as Statesmen or as Craftsmen?
• III. THE IMPORTANCE OF THE CHOICE: Does Survival of the Rule of Law Depend on the Style of Judicial Decision Making?
• IV. A CASE STUDY IN MIXED JUDICIAL STYLES OF DECISION MAKING: Can Justices Act as Both Statesmen and Craftsmen?
• V. A CASE STUDY IN CONTRASTING STYLES OF JUDICIAL DECISION MAKING: How May Statesmen and Craftsmen Differ in Deciding Cases?
• VI. THE CASE FOR CRAFTSMANSHIP: Why Should Justices Decide as Craftsmen?
• VII. THE CASE AGAINST STATESMANSHIP: Why Should Justices Refrain from Deciding as Statesmen?
• VIII. CONCLUSION: How Will Craftsmen Insure the Triumph of the Rule of Law?
• NOTES