Thread: -The Docket-

A Journey Through Time I always have to laugh when I hear a news commentator claim that the Supreme Court has always been the most powerful branch of the three co-equal branches of government. The reason I laugh is because these reporters don't seem to know much about the history of the court, or how it developed. I mean, have they even looked at Article III of the Constitution? It's the shortest of all the Articles, and that's supposed to be the most powerful branch of government? Well, I won't deny that the Supreme Court and the Judiciary in general has garnered a substantial amount of power for itself, but it wasn't always the case. Let me take you back on a journey through time. We'll head back to the first decade of the nineteenth century, and take a little peak at the newly built capital of Washington D.C. The only creatures in the place, worse than the gaggle of politicians hovering around the steps of the Capital building, are the mosquitoes. I wager they're probably related...after all the definition of politics is Poly meaning many Ticks meaning blood-sucking creatures. All joking aside, for a moment, we take a stroll up the stairs of the magnificent Capital. Of course, the rotunda hasn't been built yet, and won't be for another sixty years. Inside the vast marble halls of the place we find the grand chambers of Congress. The floor of the House of Representatives is teaming with lower life formsyes, your representatives...although there's quite a few less of them, as there were only thirteen states at the time, and a Hodge-podge of territories to the west. Tobacco smoke fills the air, as most people smoked, thinking that the tobacco helped their chances to fight off the Yellow-fever causing bastards...their cousins, the mosquito. Next up comes the chamber of the Senate. What an amazing site. It's opulent, filled with elder statesmen. At that time, all Senators were appointed by their respective State Legislatures, and so they didn't carry the same haughty disposition as their House of Representatives brethren. After all, their respective state governments could yank them back home, sacking them...with or without cause. Needless to say, being a Senator didn't carry the same kind of weight that it does today. Another turn down another hall, and we arrive at a broom closet. But, not just any broom closet. No, this broom closet is VERY SPECIAL. For with a turn of the head, you'll notice the grand lettering painted above the door. The Supreme Court of the United States of America. That's right, the initial planners of the Capital building had completely forgotten about the Supreme Court. At that time, the court was meant to be housed in the same building as what the original drafters of the Constitution thought of as the most important branch of governmentthe legislature. But, because no one really paid much thought to the judiciary, no one bothered to tell the architects and planners about their intention to put the court in the Capital building. Alas, the court had to have a courtroom, so being the great improvisers that they were, the fist government under the United States Constitution shoved the Supreme Court into a broom closet. I mean, it ought to be enough room for the justices and the parties to the case. Besides, there's no jury at the Supreme Court. So this plan might work ideally. Needless to say, after the war of 1812, when the British traveled to D.C. to throw their do you miss us yet party, which carried with it the usual raucous destruction of arson and vandalism, before the fledgling nation had a chance to tell them nope, the Capital building, along with the White House sustained severe damage from fire. The Supreme Court, never one to avoid an opportunity to increase its prestige or power, leapt at the first opportunity to procure a new building for themselves. And that's how we gained the iconic, if not slightly oppressive looking structure that we know as the Supreme Court today. But, there was a deeper meaning to this separation. The Chief Justice of the Supreme Court at that time, John Marshall, wanted to ensure that the Court carried a power that no other supposedly co-equal branch possessed. And he was willing to use any dirty, underhanded trick to ensure that the Court sustained this power. What power is this of which I speak? Why, the sole power to determine whether an issue is Constitutional or not. Today we refer to this power as judicial review. If you turn to the four-corners of the United States Constitution, you might be surprised that you find no mention of judicial review anywhere within the document. I'll clue you in...you never will find it, because it ain't there. No, judicial review was a power that many state level courts possessed, but it was not intended to be for the highest court in the land. After all, that court was just to decide issues between the United States and foreign governments with treaties, admiralty law...and maybe to hear appeals from the peons from the rest of the country. It wasn't intended to be the marble hall of all things Constitutional, as we know it today. So, how did John Marshall pull off this greatest sleight of hand in the history of the American government? Why using a logic flaw to decide a case, in which he should have recused himself, due to a conflict of interest! Give me a second to catch my breath here, that last sentence carried a lot of weight with it. In fact it's so important, I think I'll repeat it with some emphasis this time. By using a logic flaw to decide a case, in which he should have recused himself, due to a conflict of interest! Phew, that's better! But this sleight of hand I speak of occurred in one of the most monumental, self-interested, perfect examples of poor logic used in the Supreme Court...and all with the design of increasing the power of the court ten fold. So, now we venture back to a time when the Supreme Court was still in the broom closet. Can't move out of the broom closet until you've massed some power... 'amiryte? The year was 1803, America was only three years into Thomas Jefferson's presidency, and already the Vice President, Aaron Burr was harboring ill will against Alexander Hamilton...yet the famous duel was still a year away. 1800's election was so contentious that it was known as The Revolution of 1800. Thomas Jefferson had just won a staggering victory over his arch-rival and fellow Founding Father John Adams. Of no small note here, both were blood-sucking attorneys, like yours' truly! Alas, I digress! Adams, and his Federalist party whom, coincidentally, John Marshall was a proud member, were shocked by their defeat. Congress was still controlled by the Federalist party, as the 6th Congress would hold power until January 1801. So what did they do? They responsibly turned power over, without causing any trouble....ah, who am I kidding? They decided to stick it to their political rivals, passing any and every disruptive law they could. You think modern politics invented nastiness? Nah, they ain't got nothing on the scheming Federalists of the early Nineteenth Century! So, during this lame-duck session, Congress passed a rather controversial law, The Judiciary Act of 1801. Sounds harmless right? The Act modified the Judiciary Act of 1789, in establishing not one, two, or even three...but TEN new district courts, expanding the number of circuit courts from three to six and, for good measure, added additional judges to each circuit, thereby availing the President with the authority to appoint Federal judges and justices of the peace. Something the Federal Judiciary probably wishes it had to this day...since Justices of the peace do such marvelous case work as...traffic tickets, and dog-poop complaints. Then to show that he was a mature fellow, and gracious even in defeat...John Adams, on the last day of his presidency...in an attempt to stymie the incoming Democratic-Republican Congress see! They got along at one point! and administration, appointed 16 Federalist circuit judges, 4 Federalist justices of the peace to offices created by the harmless little Judiciary Act of 1801. Interestingly, the other side didn't like this much, and referred to this little move as the Midnight Judges act. Included in this upstanding bunch of newly minted and most honorable judges was a man by the name of William Marbury. A true man of the peopleas he had been a prosperous financier in Maryland...I mean, aren't we all?who, surprise surprise! was an ardent Federalist, had been appointed for the position of justice of the peace in the District of Columbia! Isn't that fantastic? His term was to last five years, and he was, authorized to hold courts and cognizance of personal demands of the value of twenty dollars. Now mind you, most people never even saw twenty-dollars back then. But we're talking about a city full of wonderful politicians, who loved lining their own pockets. Think Benedict Arnold. He did it...so did Congress...some things never change! Now, here comes the juicy part for John Marshall. Even though he had just been appointed Chief Justice of the United States, Marshall continued acting as Secretary of State at President Adam's personal request. Therefore, it was he who signed the payment slips, and authorization slips for the new judges...of whom, one William Marbury, was about to bring his case before John Marshall's court. Conflict of interest? Nahhh...this was standard politics! Anyway, in 1803 the case of Marbury v. Madison slithered into the broom closet known as the Supreme Court. The issue before the court was the method of getting a case heard before the court. There are three ways a case can be heard in the Supreme Court 1 Direct filing within the court 2 filing in a lower federal court, such s a district court, and appealing all the way up to the Supreme Court and, 3 filing in a state court, appealing all the way up through the state's highest courts, and then appealing to the Supreme Court on an issue of Federal law. The first is what is known as an exercise of original jurisdiction the second and third are exercises of the Supreme Court's appellate jurisdiction. Marbury, who was pissed to discover that Madison wouldn't recognize his job as traffic judge for Washington D.C. Filed a petition for the writ of mandamus directly to the Supreme Court, and as a consequence, the Supreme Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it. That's all well and good, Marbury made the argument that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus. This, of course, raised several issues that the Supreme Court had to address 1 Does Article III of the Constitution create a floor for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress cannot modify at all? 2 If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution? 3 Most importantly, who is supposed to decide who wins....so Marbury can become enforcer of carriage speed laws in Washington D.C.? It was in the answer to the last question, that the Supreme Court formalized the notion of Judicial review. Basically, the constitutional issue on which Marbury v. Madison was decided was whether Congress could expand the original jurisdiction of the Supreme Court. Ever the opportunist, John Marshall was ready to jump feet first into this case, conflict of interest be damned! So, on February 24, 1803nearly 201 years agothe Court rendered a unanimous 4-0 as there were only four justices at the time decision, that Marbury had the right to his commission, but that the court did not have the power to force Madison to deliver the commission. Marshall wrote the opinion of the court. He presented the case as raising three questions 1 Did this fool Marbury have a right to the commission? 2 Do the laws of the country give Marbury a legal remedy? and, 3 Is asking the Supreme Court for a writ of mandamus the correct legal remedy? Well, Marshall wasted no time in answering the first two questions affirmatively. He found that the failure to deliver the commission was violative of a vested legal right. albeit a rather dubious one at best. In deciding whether Marbury had a remedy, Marshall proclaimed The Government of the United States has been emphatically yes...make your dubious claim ring with an air of authority! a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right which was created in a back room deal, all to stick it to our opposition!. Thus, one of the key legal principles on which Marbury relies is the notion that for every violation of a vested legal right, there must be a legal remedy. We refer to this as justicibility...or standing today. Marshall wasn't finished though. He next described two distinct types of Executive actions political actions, where the official can exercise discretion, and purely ministerial functions where the official is legally required to do something. Marshall, fanning the flames of hope, found that delivering the appointment to Marbury was a purely ministerial function required by law. Therefore, the law provided him a remedy. I'm sure Marbury thought Hot Damn! I'm going to be the most insignificant judge in the entire Federal government! Marshall went on, claiming that a federal court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.' If a court does not have the power to hear a case, it will not issue dicta which is what Marshall was doing right there. Consequently, with exceptions not applicable here, a federal court must decide whether it has jurisdiction before discussing the merits of the case. Here is a wonderful example of circular reasoning! The court always has jurisdiction to determine whether it has jurisdiction, even if it doesn't. But why? Because the court must determine whether it has jurisdiction, even if it doesn't. Then how can the court have jurisdiction? Because the court must have jurisdiction to determine whether it has jurisdiction! Ah! That makes PERFECT sense! Interestingly, Marshall never addressed the jurisdictional issues, until after he addressed the first two question presented above. Because of the canon of Constitutional avoidance for example, where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted, courts generally deal with the constitutional issues only if necessary. In this case, the jurisdictional issue was a constitutional one. Now, comes the third question. Marshall, discontented with the question as presented, divided the question further, asking if a writ of mandamus basically a writ forcing the court to render a decision was the correct means by which to restore Marbury to his right, and if so, whether the writ Marbury sought could issue from the Supreme Court. Wasting no time again, and demonstrating himself to be one of the earliest Trolls in recorded history, John Marshall concluded that since a writ of mandamus, by definition, was the correct judicial means to order an official of the United States in this case, the Secretary of State to do something required of him in this case, deliver a commission, Marshall then devotes the remainder of his inquiry at the second part of the question, namely whether it the writ can issue from this court. Marshall examined the Judiciary Act of 1789 and determined that the Act purported to give the Supreme Court original jurisdiction over writs of mandamus. Marshall next looked to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions. He had argued that the Constitution was only intended to set a floor for original jurisdiction which Congress could add to. He then disagreed and held that Congress was stupid, and didn't have the power to modify the Supreme Court's original jurisdiction. As a consequence, he found that the Constitution and the Judiciary Act conflict. Marbury needed to start worrying at this point! Thus, the conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress in conflict with the Constitution are not law and that the courts are bound instead to follow the Constitution, affirming the principle of judicial review. To support this position, Marshall looked to the nature of the written Constitutionthere would be no point in having such a written Constitution if the courts could just ignore it! Like they do today. Indeed, he asked to what purpose are powers limited, and what purpose does the limitation, committed to writing serve, if such limits may, at any time, be passed by those intended to be restrained? Marshall then argued that the very nature of the judicial function required courts to make this determination. Since it's the court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, when two laws conflict with each other, the court must decide which law applies. Then, in typical arrogant fashion, Marshall points to the judge's oath, which requires them to uphold the Constitution, and to Article VI's Supremacy Clause, which lists the Constitution before the laws of the United States. Part of the core of this reasoning was intentionally handed to permanently increase the power and standing of the United States Supreme Court. At this point...Marbury was sweating bullets, wondering what in the Hell was supposed to happen to his JOB? Well, Marshall had ruled that the Judiciary Act violated the Constitution, and therefore wasn't a law at all. Therefore the Court lacked the jurisdiction to rule on the writ of mandamus, and Marbury was basically SOL. I could imagine John Marshall donning a troll face mask at this point, while Marbury wept, wondering where in the Hell it all went wrong! So, you see...the Court granted itself power, at the expense of the very person who was attempting to redress a grievance in front of the court. Such is the ironic history of our judiciary...and you wonder why it is full of cynical jackasses today!