College | Political Science |
| What's New?
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
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
of federal courts but boldly defined their jurisdiction and especially
that of the Supreme Court.
Most important of all, the Constitution makes no
statement about the power of the Judiciary even when a case falls in
-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
-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
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
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.
-In regards to the role of the Judiciary, there are
two conflicting theories,
-The first is that of popular sovereignty,
American pamphleteers insisted on the principle of home rule, the Declaration
of Independence was founded on “the consent of the governed” Jefferson
said that “the will of the majority is in all cases to prevail”
-This concept conflicts with the doctrine of fundamental
law, which is also concurrently treasured by Americans.
-Popular sovereignty suggests will, and fundamental
law suggests limit.
One idea believes in the vision of an active and positive
state, and the other emphasizes the negative, restrictive side of the political
This tendency of holding on to contradictory ideas
simultaneously quite a significant quality of the American political mind
. . .and helps to explain the rise to power of the U.S. Supreme Court.
As far as logic goes it is strange that the nation
supported the New Deal in 1936, and a few months later defended the Courts
that cut out the heart of the New Deal. This is related to the historic
dualism between the two conflicting theories.
-These consequences are due to a constitution that
is “conceived in ambiguity as well as liberty”. The framers said
this basically: with respect to certain questions, the Constitution means
whatever the circumstances of the future allow it to mean.
-One consequence of the peculiar origins of the Supreme
Court is the necessity that it perform legislative tasks with judicial
tools. A second result is the need for the judges to guide policy
according to the public.
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.
There are three main periods of American constitutional
development, 1789-close of the civil war, 1865 to the “Court revolution”
of 1937, and 1937 to the present.
Top of Page
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
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.
But the composition of the court, including the number
of its members, is left for congressional decision; and, while federal
judges cannot be removed except by impeachment, there is nothing to prevent
Congress from creating additional judgeships whenever it chooses.
The Constitution makes no explicit statement about
the nature of the Court’s power even when a case admittedly falls within
The dualism of the American mind, symbolized on the
one hand by “political” institutions like the Congress and the Presidency
and on the other hand by the Court and the Constitution, helps account
for a good deal that seems baffling in later history.
The nation expects the judges to aid in deciding policy
questions, but the nation is prone, with sublime inconsistency, to grow
fiercely resentful if the aid becomes repression, if the judges bypass
certain ill-marked but nevertheless quite real boundaries, two of which
merit special consideration….
Top of Page
McCloskey 1: The Genesis and Nature of Judicial
•June 21, 1788 - New Hampshire was the 9th
state to ratify the Constitution
(Vance McBrayer, 2001)
•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
especially the Supreme Court
•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.
•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 Supreme Court was even
•The fact that judicial review was not completely
understood allowed the judges to build up the Court's power gradually
•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 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
•The Supreme Court has to blend judicial functions
with policy-making functions in a complex mixture
•Popular sovereignty suggests will;
fundamental law suggests
•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
•The framers said that the Constitution means
whatever the circumstances of the future will allow it to mean
•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.
Top of Page
McCloskey 2: The Establishment of the Right
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
the establishment of judicial independence,
the establishment of the power of judicial review,
the establishment of judicial sovereignty.
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
This case resulted in Amendment XI which was
a set back for judicial nationalism.
However, Hamilton's view of judicial power began to
enter public thought.
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)
At this point judicial independence and review had
not been established.
Chief Justice John Marshall cleverly sets precedent
for the first time ever for the Supreme Court to have the power of judicial
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
was an unstated premise of the opinion).
By 1810 the Court had established judicial
and review, and was building judicial sovereignty.
Top of Page
Ch. 2: The Establishment of the Right to Decide
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.
Sierra R Turner, PSC 314, 2005
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….
The question of nation-state relationships was during
an era so intertwined with such issues as property rights and slavery that
to touch one was to touch the other, and we can be sure that it was never
far from the judges’ minds even when they seemed for the moment to be focusing
on something else.
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….
As Chisholm v. Georgia suggests, then, the
pre-Marshall Court was fully conscious that its greatest problem was the
relationship, and it was heavily disposed to create, or to encourage
the creation of, a consolidated national union.
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….
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.
The famous Marbury v. Madison in 1803 appears
to contradict this proposition but in fact confirms it. The decision is
a masterwork of indirection, a brilliant example of Marshall’s capacity
to sidestep danger while seeming to court it, to advance in one direction
while his opponents are looking in another.
Fletcher v. Peck is the first clear precedent
for the general proposition that the Supreme Court is empowered to hold
state laws unconstitutional. This case then marks the end of the beginning
of the Court’s long struggle to find its place in the American governmental
Top of Page
Ch.3, The Marshall Court and the Shaping of
By Ryan Rice, Spring 2005 (another is below)
The Supreme Court spent many of its first years
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 constitutional agreement of 1789 was inexplicit
about the nature and scope of judicial authority so the Court had to build
itself one step at a time.
It was 1810 before the Court felt secure enough to
hold a state law unconstitutional.
The war of 1812 was an opportunity for the Court build
a stronger foundation, while the Republicans were defending their war and
thus embrace the idea of nationalism.
The great operative phrases of the Constitution were:
the supremacy clause, the contract clause, the necessary
and proper clause, and the commerce clause.
Marshall’s Court was engaged in using its new authority
to establish constitutional principles on which the American polity should
rest. Marshall felt that by depriving the states of power by enhancing
the power of the nation he in turn made property rights more valuable.
Marshall was reminded throughout his years that the
Court’s decrees are backed only by its own prestige and ultimately by the
willingness of the President to help enforce them.
Marshall’s task was to augment the judicial power
and shape the constitution into a charter for nationalism. The Court’s
authority must exist with the nation-state relationship.
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.
This right was granted to the Court under section
25 of the Judiciary Act of 1789.
The Court assumed that any case presenting a federal
question is within reach of the judicial power, not matter the tribunal
in which it arises.
Allies of the Court were determined, over the years,
to be those who believe in it and are prepared to defend it as a symbol
of fairness and those who are those who are gratified by the course of
policy the Court is taking at that particular time.
Martin v. Hunter’s Lessee – the Court made
first ruling concerning Section 25.
Cohens v. Virginia
– Marshall gave the decision that individuals may appeal to the Supreme
Court even if the state is the other party in the litigation.
McCulloch v. Maryland – Court set down two
important premises: The Constitution emanates from the hand of the sovereign
people and speaks in broad language so that it can “be adapted to the various
crises of human affairs.” ; The people made the government supreme over
all rivals within the sphere of its powers.
Gibbons v. Ogden – First time the Court was
forced to interpret the Commerce Clause.
Fletcher v. Peck – First Contract Clause decision.
Dartmouth College v. Woodward
Top of Page
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.
But others, in politics and out, were not ready to
bear the Chief Justice’s mild yoke, and there was always a threat that
overweening judicial power would encounter resistance or counterattack
more formidable than its recently established independence could withstand.
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. …
These two interwoven themes run through nearly all
his decisions, each case raises the question of the Court’s authority together
with that of nation-state relationship, and the Court must always decide
one question in the light of the other, taking care that its nationalist
zeal does not compromise its own status or that claims for judicial power
are never to extreme as to vitiate the crusade for nationalism.
One of the Court’s great problems was presented either
by direct or by implied challenge in nearly every significant case of the
era: the problem of its right to review decisions of state courts
involving the validity of acts undertaken by the state governments.
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.
Marshall was right in thinking that he had failed
to resolve for America the great problem of nation-state relationships.
No court could finally settle an issue of such dimensions, a issue that
had already brought the nation near the brink of civil war.
Top of Page
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:
Constitution of 1789 is not explicit
about the role the court is to play and the extent of power it is to have.
The court is left to define itself.
"Only gradually has it become apparent that the Court
is being accepted as a symbol of constitutionalism and can therefore count
on a solid measure of public support."-p.35
Court finally feels confident enough to declare a
state law unconstitutional
to establish judicial sovereignty
to cement the bonds of national unity
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's next logical step is to "make its weight felt
in the political order" (p.35); all working towards stronger national government,
controversial issue at the time, much opposition. It is an inherent goal
of the Supreme Court because otherwise it has no power.
The Court Over the States
Still had to be careful of resistance or counterattack
Marshall began to work towards establishing the content
of principles of property rights and strong central government.
As 1820's ended, cries for state's rights increased
weakness of the Court: it depends on its prestige
and the support of President and Congress
Court was helped by:
American belief in the "rule of law", with which the
Court was identified;
the lack of unity among states' rights advocates;
only fought for individual interests, did not support one another
Court avoided controversial issues, such as slavery
and the tariff, which might be a unifying interest to their opponents.
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.
Such a right was given to the Court by Congress in
Section 25 of the Judiciary Act of 1789, when state courts deny a claim
made in the name of the supreme law, the Constitution, or treaties. However,
it was difficult to get the states to follow; localists had said from the
start that Sec. 25 was an unconstitutional encroachment on state sovereignty.
The Enhancement of National Power
Fairfax (British) land in Virginia, confiscated during
the Revolution, was given to Hunter; but since the war had ended and the
Constitution had empowered the federal government with the power to make
treaties, it was argued on the other side that Treaty of Peace and Jay's
Treaty of 1795 allowed the Fairfax heirs a claim to the land.
Virginia Court of Appeals ruled against Fairfax. Supreme
Court reviewed the case on a writ of error and reversed the decision; however
the Virginia court, under Marshall's enemy and supporter of states' rights,
Spencer Roane, simply decided to ignore the ruling of the Supreme Court.
They argued that Sec. 25 was unconstitutional and
that states alone had the right to interpret the meaning of the Constitution.
If states could each decide for themselves and ignore the Court, than there
was no hope for judicial supervision and centralism.
Justice Story delivered the opinion of the Court:
first, the Constitution derived its power from the collective "people",
not from the individual states (doctrine of popular sovereignty,
formerly used by anti-Federalists.); the people wanted to change the boundaries
of state power which had been in place under the Articles, as evidenced
when the Constitution empowered the Court over all cases involving questions
of law, Constitution, or treaties, no matter where the case originated.
Same arguments came up over and over, as in the 1821
case Cohens v. Virginia, in which Marshall used the 11th
Amendment to allow individuals to take states to the Supreme Court, so
long as the individual did not start it.
After this there were many attempts at Congressional
acts to curtail the power of the Court, but none succeeded, in part because
individual states did not support each other. Each case strengthened the
public acceptance of the Court; the became a "focus of public respect and
a symbol of Union." (p. 42)
Judicial Allies and Private Rights
Court's apparent weakness, its separation from politics,
was also an opportunity; they had unity and a long-term view, as opposed
to politicians divided over short-term and differing interests.
Court wanted to enhance their status as well as national
power, because their status depended on the strength of the Union (see
paragraph 2, p. 40, and paragraph 1, p. 43.). Succeeded because of "self-contradiction
among the forces that opposed it." (P.43)
McCulloch v. Maryland, 1819 : John Marshall's
state tax on note issues of the Bank of the U.S.
Federal government: tax invalid, need not be paid
Maryland: the establishment of a national bank was
not within Congress' constitutional powers, and states can tax as they
sit fit within themselves.
Marshall: First, the Constitution comes from the people
and is general so that it can be adapted to fit new crises. Second, the
people had made the federal government supreme, as it must be to deal with
these crises. Third, the Congress had the right to establish the national
bank because of the "necessary and proper" clause ( Art. 1, Sec. 8), which
gives them power to do whatever they have to in order to execute their
Again, their opponents hurt their own case by focusing
on the smaller issue of the bank rather than the larger issues of states'
rights and judicial sovereignty; by criticizing the Court for not ruling
the Bank unconstitutional, they recognized that the Court had the power
to do so.
Gibbons v Ogden, 1824, involved monopolies
given for steamboat navigation in New York and Louisiana, the two most
important ports. Others argued that only Congress had this power, because
this was interstate commerce. Marshall said that the monopoly was invalidated
by a Congressional act, which was made by the Constitution the supreme
law of the land. He achieved his ends, and further advanced the interests
of the Court, while avoiding an issue of great controversy, the extent
to which states were restricted in the area of interstate commerce.
First contract clause decision was Fletcher
v. Peck in 1810.
Court is not political, has no party; "they are spared
both the penalties and the benefits of direct electoral support."(p. 47)
Court does have a constituency: those who believe
in it and those who find it useful to their own ends.
Any institution must have public support to survive
long in a democracy.
Court largely reinforced by legal fraternity; lawyers,
already important in American society, supported the court 1) because they
represented the rich, who benefit from a "stable, nationalized structure",
and, 2) because they were trained to respect the rule of law.
The Court was thus helped in "the development and
acceptance of doctrines protecting the property owner, most particularly
by way of the contract clause..." (p. 48).
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.
Marshall seemed to lack confidence in the contract
clause and invoked natural law.
Old trustees argued that the original college charter,
granted by the British in 1769, could not be changed because it violated
the contract clause.
The Achievement of John Marshall
This seemed like a weak argument because of its three
1), that a state is bound by its own contracts;
2), a charter is such a contract; and
3) that it must not be violated even "if its holders
have no 'beneficial interest' at stake" (p. 48).
Marshall assumed the first two; on the third, he said
that the contract clause is to protect private property and does not exclude
charitable institutions in which the charter or contract holders stand
to lose no valuable personal asset.
Marshall was confident in the decision, and there
was little controversy.
Why the change since the Fletcher case nine years
The lawyers of the country had begun using these same
arguments in that time, and they had already become accepted.
Summary of Important Points
In the end, Marshall felt he had failed to
achieve his two goals of judicial sovereignty and national unity.
States' rights movement was growing stronger under
John C. Calhoun;
Court had recently been defied twice by Georgia;
President Andrew Jackson had not supported the Court,
exposing its weakness, its dependency on such outside support.
Federalism seemed dead as Jacksonian democracy
But, the Court had accomplished much, given that its
decisions are always tentative and never permanent. From our present perspective,
it seems Marshall was more successful than he seemed in his own
Summary of Cases and Precedents
The Court had been struggling to establish and define
The Court, as a national institution, almost inherently
supported the doctrine of nationalism, even though most of the justices
were not Federalists; its status depended on a strong central government.
Main issue: debate between states' rights and nationalism
Marshall's main goals: to enhance judicial sovereignty
and national power
Court's strength: its opponents were disorganized
and short-sighted. It was also helped by the respect for the rule of law,
of which it became a symbol. Finally, it avoided common controversial issues,
which might unify its opponents
Court's weaknesses: it was entirely dependant on its
prestige and external support of the President and Congress.
Judicial Sovereignty over States
Martin v. Hunter's Lessee : -national powers
should be liberally construed
-Section 25 of Judiciary Act of 1789 validated
-Court is the dominant tribunal of the land, even
over individual states.
Cohens v. Virginia: individuals may take states
to Supreme Court.
National Power over States
McCulloch v. Maryland: "necessary and proper"
Gibbons v. Ogden: interstate commerce
Private Property Rights
Dartmouth College v. Woodward: contract
Top of Page
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
In 1835, the American public feared the worst knowing
that Andrew Jackson would be appointing the new chief justice of the Supreme
The Whigs, formally the Federalists, feared that the
new Democratic court would erase Marshall’s doctrines and replace them
with more radically “Nation-State” doctrines.
Taney was known as one of the radical democrats that
deprived the Bank of the U.S. of federal deposits that were its lifeblood.
People feared his appointment because of the democratic trend that was
hostile to property rights, nationalism, and Marshall himself.
However, close examination of “Taney’s… doctrines
were a consistent extension in all important respects of tendencies Marshall
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
Mayor of New York v. Miln (1836)
court upheld that a state could regulate commercial if it was in the interest
of the people health and well-being. The ruling simply stated local
government was in the interest of the people and was responsible for the
public’s health. In 1851 this case was upheld and the ruling was that states
had the right to regulate until Congress intervened.
Charles River Bridge v. Warren Bridge Co.
court upheld the sacred contract clause that Marshall fought so proudly
for. The decision simply made a state responsible for any contracts
that they establish with corporations.
Briscoe v. Bank of Kentucky (1837)
decision the Bank of Kentucky was in clear violation of Article 1, Section
10 of the Constitution that says no state can “emit bills of credit”.
The Court’s decision allowed for the Bank to keep issuing the bills which
was in a strong move for state’s rights.
Supremacy”. The three early decisions along
with MuCulloch v Maryland upheld the notion and pushed Marshall’s
The Pride of Power and the Slavery Question
Decline Without Fall
The ultimate failure of the Taney Court was one which
was just unavoidable. The Court failed to recognize that Slavery
was a judicial untouchable.
1842- The leeway to the fall came when Justice Story
spoke on a case in Pennsylvania and the Fugitive Slave Law that pushed
for the National Supremacy to be able to handle the slavery issue.
Strader v. Graham (1851) The
Court’s decision on the case was simply that any slavery issue should be
resolved by the current state’s laws. A sly pass for the Court to
avoid slavery and the issue of slavery in new territories.
Dredd Scott v. Sandford (1856) The
case was a boiling point for all judges. Justice Story again spoke
out prematurely and Taney received a lot of pressure to pass final ruling.
In his ruling he made three decisions that drastically hurt his entire
1) Scott could not bring a case before federal
court because was a Negro and Negroes were not recognized as citizens.
2) The Missouri Compromise was unconstitutional
so any ruling based on it was void.
3) He was moved to Missouri where slavery was
permitted and therefore Missouri Law kept him a slave.
The repercussions of his decision were instant.
He was accused of a corrupt bargain with President James Buchanan because
he divulged information to him. The court lost the notion of “National
Supremacy” that allows it to exist.
Taney then proceeded to battle on issues with President
Lincoln whom had made a harsh decision when he temporarily suspended the
Writ of Habeas Corpus during the Civil War.
Taney was infuriated by Lincoln supreme decision and
declared him a criminal and demanded his arrest and resignation.
Lincoln of course resisted, and Taney’s decline continued.
Top of Page
McCloskey Chapter #4
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.
Sierra R Turner, PSC 314, 2005
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”.
One of the 1837 decisions that so alarmed the Whigs
was Mayor of New York v. Miln, in which the Court had upheld a state
regulation applying to ships entering the port of New York….
The other two 1837 decisions that had alarmed the
disciples of Marshall like a fire bell in the night were Charles River
Bridge v. Warren Bridge Co. and Briscoe v. Bank of Kentucky.
The first involved an application of the contract
clause, that sacred cow of Marshall’s jurisprudence, and because the Court
refused to find in the clause new restrictions on state power, the cry
of heresy was raised.
As for the Briscoe case, it undoubtedly represents
a concession to localism.
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.
Top of Page
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
Top of Page
Chapter 6: The Judiciary and the Regulatory
(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
-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
a federal law and the question of whether free speech guarantees applied
to the states by way of the fourteenth amendment was still comparatively
-Constitutional Revolution of 1937
Top of Page
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
The rise of totalitarianism created new problems
for America and cast a different light on old problems.
Anyone watching the courts during this period of time
may have thought that judicial review had reached its twilight period,
that the Courts career as an important factor in the American political
process was drawing to a close
The Judges however were not about to recede into humble
obscurity unless they had no other choice
The court which had once been primarily occupied with
the nation-state relationship and, with the business-government relationship
now became more and more concerned with the relationship between the
individual and the government
The End of Economic Supervision
The nation faced mortal threats of a degree it had
not known since the Civil War and of a kind that it had never known before
The right of fair trial which was once taken
for granted assumed new layers of importance in the minds of men scared
It was said that the Supreme Court are children of
their times, and a chronicle of Court Doctrine trends was an intellectual
history of America
The judges now had to question the court's place in
America and feel their way to a modus operandi that would
enable the court to defend its new values with effectiveness
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
Humility Versus Pride: International Agreements
and Executive Power
The second Agricultural Adjustment Act of 1938
was upheld despite the fact that it withheld “harmless” commodities
from interstate commerce
In 1942 the court sustained another amendment which
put limits on wheat grown for on-the-farm use even though none was being
It was becoming evident that the court could do whatever
it wanted to do to commercial businesses for whatever purpose they desired
It was becoming the court's criterion that legislation
could no what they needed in commercial transactions as long as it remained
on a rational basis
Events suggests a judiciary overwhelmed and resolved
to interfering as little as possible particularly when national power was
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
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 Court Seeks a Role: The Problem of Freedom
The Opinion of the court said the President had no
right to do this because the subject was within the authority of Congress
The subject the modern court seems to care most
about in civil rights
Judicial Successes and Failures: The Problem of
Coupled with and supporting the modern concern for
civil rights as a value the court has the power and duty to right wrongs,
to translate its moral convictions into constitutional limitations
Holmes's clear and present danger principle
now revitalized and put forward as a talismanic standard to be applied
to all categories of free speech problems
The 2 decisions that exemplified this face of modern
judicial history were American Communication V. Douds and Dennis
v. United States; Both involved national statutes visiting penalties
on Communists, and in both the Court upheld the government actions
In the stormy times of the Douds and Dennis
cases, the judges seemed to have forgotten that there is more than one
way to skin a cat
Racial Discrimination and The Boundaries of Judicial
During the 2nd world War military authorities decided
that 112,000 Japanese-Americans should be moved out of the West Coast military
area despite of the fact that 70,000 of the victims were U.S. citizens
with and that no crime could be charged
Judicial tolerance has sometimes been overdone and
is likely to be weakest during grave national emergencies
Racial discrimination has been handled differently;
Here the court has been more venturesome and more confident in announcing
Top of Page
With a few exceptions all of the judges appointed
to the bench since 1937 shared a general civil rights ethos
Missouri V. Canada; Missouri never bothered
to establish a Negro Law School even though they had a white one; This
case signaled a new judicial mood toward Negro rights
Screws v. U.S. - Grovey
V. Townsend - Smith V. Allwright
“Separate Facilities are inherently unequal”
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 Steel Seizure Case- “Court was building on developments
already occurring within American society.”
Southern Segregation Cases- embarrassments to the
U.S. as we prepared to enter the Cold War.
The Civil Rights Movement and the Constituion
Plessy v. Ferguson [overruled]
-civil rights movement afforded the Court
many opportunities to decide what its own role would be throughout this
“...struggle for racial justice.”
The Supreme Court and Freedom of Speech
-Civil Rights Act of 1964-“...outlawed racial
discrimination in restaurants and other public accommodations,”
Katzenbach v. McClung
New York Times v. Sullivan (1964)
-“The Court was also willing... to turn
‘freedom of speech’ into a more general ‘freedom of expression.’”
The Court Confronts the Criminal Justice
-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.
Brandenburg v. Ohio (1969)
Nixon v. Shrink
Missouri Government PAC (2000)
Red Lion Broadcasting Co. v. FCC
Cohen v. California (1971)
ACLU v. Reno (1997)
Buckley v. Valeo (1976)
R.A.V. v.St. Paul (1992)
1968 Logan Valley case
-“...the ‘selective incorporation’ of most of
the criminal-procedure provisions of the Bill of Rights into the 14th Amendment
as a limit on the states,” has been, “the principal vehicle of change.”
Equal Protection Comes Into Its Own
-“the Warren-Brennan Court was a nationalist
-The Warren Court interpreted the Constitution
more generously than prior courts had.
-during the 1960's, the Court began to look more
closely at the imposition of the death penalty.
McClesky v. Kemp (1987)
Malloy v. Hogan
Barron v. Baltimore (1833)
Miranda v. Arizona (1966)
Furman v. Georgia (1972)
Coker v. Georgia (1977)
Mapp v. Ohio (1961)
Gideon v. Wainwright (1963)
-during the 1960's the Court explored the meaning
of equality far more than in U.S. history.
Enter Privacy: A Second Era of “Substantive
-“... symbol of the Court’s newfound willingness
to confront-and try to resolve from Washington- basic issues of American
Baker v. Carr (1962)
-the issue of gerrymandering has become one area
of great concern lately for the courts.
-“...one of the Court’s most important roles is
-Equal Rights Amendment (ERA)-major controversies
of the 1970's.
Brown v. Board of Education
Miller v. Johnson (1995)
Reed v. Reed (1971)
Craig v. Boren (1976)
Baker v. Carr
Reynolds v. Sims (1964)
Shawn v. Reno (1993)
Roe v. Wade (1973)- most important decision
since Brown, the Court struck down the anti-abortion law
Top of Page
welfare state -active dispensation by the state
of funds or services to recipients chosen at least in basis that they have
Ch. 9: Judicial Monitoring of the New
Am. Welfare State
Jarret Layson Spring 2003
-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
Race and the Welfare State
least some to those having inadequate financial
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
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
-most dramatic illustration of the Court's
resistance to finding affirmative rights
San Antonio Independent School District v. Rodriquez
-after 1969 Court basically accepted no invitations
to declare new rights of the poor that
suggested a constitutional duty to rescue
-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
-Brown v. Board
Race and the Affirmative Action
-Bakke v. Regents of the University
Gender and Welfare State
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
Mississippi University for Women
Religion and the Welfare State -school
-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
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
Top of Page