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1702692612 2. Chief Justice John Marshall. This portrait of the fourth Chief Justice was painted by Rembrandt Peale and has hung in several locations at the Court.

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1702692614 Marbury v. Madison, the Marshall Court’s best-known case, and one of the most famous in Supreme Court history, was decided early in the chief justice’s tenure, on February 24, 1803. It grew out of the tense and messy transition of power from the Adams Federalists to the Jeffersonian Republicans after the election of 1800. The Federalist-populated courts were a particular target of the victorious Republicans, especially after the outgoing Federalist Congress created forty-two new judicial positions for President Adams to fill during his waning weeks in office.

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1702692616 A Maryland tax collector, William Marbury, had received one of these “midnight” appointments as a justice of the peace for the District of Columbia. The Senate confirmed Marbury’s appointment along with the dozens of others. But in order to take office, the newly confirmed judicial officers needed to receive the actual commission, a piece of paper that Marbury had not received by the time the Adams administration left office. President Jefferson’s secretary of state, James Madison, refused to deliver the commission. Marbury, who had been active in Federalist political circles, filed suit directly in the Supreme Court. He sought a writ of mandamus, a judicial order commanding the delivery of his commission. It seemed a readily available remedy, because Congress in the Judiciary Act of 1789 had explicitly provided that citizens could go directly to the Supreme Court to seek a writ of mandamus against a federal official.

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1702692618 As a legal matter, then, the case seemed straightforward enough. But it was also highly political, and it placed the authority of the Supreme Court on the line. Madison was seen as likely to defy a direct order to give Marbury his commission. How could the Supreme Court uphold the rule of law without provoking a confrontation with the executive branch that could leave the Court permanently weakened?

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1702692620 Marshall’s solution was to assert the Court’s power without directly exercising it. His opinion for a unanimous Court—speaking in one voice in the new Marshall style, rather than through a series of separate concurring opinions as in the past—held that Marbury was due his commission but that the Court could not order it delivered. That was because the grant of “original” jurisdiction to the Supreme Court in Article III did not include writs of mandamus. Section 13 of the Judiciary Act, in which Congress gave the Court jurisdiction to decide original mandamus actions like Marbury’s, was therefore unconstitutional and no mandamus could be issued. The decision gave the Court a measure of insulation at a time of political turmoil; without an order, the Jefferson administration had nothing to complain about. The decision’s significance, of course, lay in the Court’s assertion of authority to review the constitutionality of acts of Congress. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall declared—a line that the Court has invoked throughout its history, down to the present. In the guise of modestly disclaiming authority to act, the Court had assumed for itself great power.

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1702692622 The full extent of that power was not immediately apparent. In fact, only six days later, with Chief Justice Marshall not participating, the Court avoided a possible constitutional confrontation. Voting 5–0 in Stuart v. Laird (1803), the justices upheld Congress’s repeal of the Judiciary Act of 1801, a move some historians see as reflecting the Court’s unwillingness to test the full dimensions of the power it had just claimed for itself. More than half a century would pass before the Supreme Court again declared an act of Congress unconstitutional. That was the Dred Scott decision of 1857 (Scott v. Sandford), invalidating the Missouri Compromise and holding that Congress lacked authority to abolish slavery in the territories. That notorious decision, a step on the road to the Civil War, was perhaps not the best advertisement for judicial review. But since then, the Court has lost its early reticence. It has declared acts of Congress unconstitutional more than 150 times.

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1702692624 How the modern Court exercises its great power—how cases reach the Court and how the justices proceed to select them and decide them—who the justices are and how they are chosen—are the subjects of the remainder of this book.

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1702692629 美国最高法院通识读本 [:1702690383]

1702692630 美国最高法院通识读本 Chapter 2The Court at work (1)

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1702692632 A disappointed litigant’s vow to “take my case all the way to the Supreme Court!” is likely to prove an empty threat. An appeal on the way to the Supreme Court encounters many obstacles. Some derive from the Constitution itself; Article III limits the jurisdiction of the federal courts to deciding “cases” and“controversies,” although, as we shall see, the meaning of those words is hardly self-evident. Another obstacle is inherent in the Supreme Court’s place in the federal system: the Court generally may not review a state supreme court’s interpretation of a state’s own constitution. For example, the Court could not have reviewed the Massachusetts Supreme Judicial Court’s decision in 2003 to grant same-sex couples the right to marry under state law, because the state court based its decision on its interpretation of the Massachusetts Constitution (Goodridge v. Department of Public Health). (State high court decisions that interpret the U.S. Constitution do fall within the Supreme Court’s jurisdiction, however.) Other obstacles to Supreme Court review stem from federal law. For example, Congress has set strict deadlines for filing Supreme Court appeals.

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1702692634 Someone who has followed all the rules and whose case falls cleanly within the Court’s jurisdiction then encounters perhaps the most daunting obstacle of all: the justices’ freedom to say no. Unlike most appellate courts, which must act on all properly presented appeals, the Supreme Court has nearly complete control over its docket. Year in and year out, the justices agree to decide only about 1 percent of the cases that reach them. The Court hears appeals from the thirteen federal appeals courts, the high courts of the fifty states, and occasionally from other courts, including the highest court in the military justice system, the United States Court of Appeals for the Armed Forces. A small category of cases, most notably appeals concerning voting rights and redistricting, reach the Court directly from special federal district courts. During the 2010–11 term, 7,857 new petitions for review reached the Court. Carrying over 1,209 petitions from the previous term, including forty that the justices had already agreed to hear but that had not yet been argued, the Court granted an additional ninety cases and issued a total of seventy-eight opinions.

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1702692636 Several recent examples illustrate the types of cases the Supreme Court decides and how the justices approach the task of decision. While there is no typical Supreme Court case, there is a typical range of cases during a given term, with the cases that the Court has chosen to review falling roughly evenly into two main categories. One category consists of cases of constitutional interpretation, usually involving a claim that a federal or state statute or policy violates a provision of the Constitution. The second category consists of cases requiring the justices to decide the meaning or application of a federal statute. A subset of this category consists of cases about the work of federal agencies. (A third category consists of suits between states—the one or two cases every year that fall within the Court’s “original jurisdiction”to hear such disputes. These are often new chapters in longrunning disagreements over state boundaries or interstate water rights. The Court appoints a lawyer or retired judge as a “special master” to take evidence and make a recommendation. The process can take years.)

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1702692638 Constitutional cases

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1702692640 Some constitutional cases present structural issues involving the separation of powers. Is each branch exercising its allotted authority, and not that of another branch? Does Congress, or the president, have the authority to do what each seeks to do? Some recent examples: Does Congress have the authority to prohibit the local cultivation and use of marijuana for medical purposes, as authorized by a state’s “compassionate use” law? (The Court said yes, in Gonzales v. Raich (2005), an interpretation of the congressional power to regulate interstate commerce.) Does the president have the unilateral authority to establish a system of trial by military commission for noncitizens detained as “enemy combatants”? (The Court said no in Hamdan v. Rumsfeld (2006), a decision rich in separation-of-powers overtones while relying, as a formal matter, on statutory and treaty language.)

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1702692642 More often, constitutional cases present claims of individual rights: free speech under the First Amendment, freedom from unreasonable search and seizure under the Fourth Amendment, a claim that a law or policy amounts to the denial of equal protection under the Fourteenth Amendment. Does a state-owned law school violate the equal-protection rights of white applicants by maintaining an admissions policy that favors minority applicants?(The Court said no in Grutter v. Bollinger (2003), on the ground that the policy served the state’s “compelling interest” in increasing educational diversity.) Does the Second Amendment’s reference to“the right of the people to keep and bear arms” give individuals the right to keep a gun at home for self-defense? (The Court said yes in District of Columbia v. Heller (2008), striking down the District of Columbia’s gun-control statute.)

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1702692644 There are several observations to make about the Court’s constitutional cases. First, none of the cases mentioned here was decided unanimously; each garnered at least three dissenting votes. So whatever the Constitution was saying, the justices acted on different understandings of its commands, an indication that the art of constitutional interpretation is far from a paint-bynumbers exercise. Second, many constitutional cases, like the law school affirmative-action case, require the justices to balance competing interests, in this instance the white plaintiff’s claim of a right to equal treatment versus the state’s assertion of society’s need for an ethnically diverse educated population. Different justices will balance competing claims differently, in a contextladen process that is considerably more complex than simply deciding in a vacuum whether one side’s claim is valid. Much of constitutional law, as it has evolved, entails some sort of balancing test between competing constitutional values.

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1702692646 Third, unlike the early justices, justices of the modern Court rarely find themselves in the position of confronting the Constitution head-on. Rather, constitutional questions reach the Court encrusted by layers of precedent built up over more than two centuries. Sometimes, of course, the decision is to reject the precedent: Brown v. Board of Education (1954) interpreted the Fourteenth Amendment’s equal protection guarantee to prohibit official segregation, which a fifty-eight-year-old precedent, Plessy v. Ferguson (1896), had deemed acceptable as long as the“separate” facilities were “equal.” But in the great majority of cases, the justices sift through the available precedents like miners panning for gold, hoping to find one that suggests an answer to the question at hand. Supreme Court opinions are not built from scratch. Most contain multiple quotations from the Court’s earlier cases, from which the opinion writer reasons by analogy. In any area of doctrine in which the Court has been active for a long time, there are usually precedents that can plausibly support a variety of outcomes.

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1702692648 The 2008 Second Amendment case from the District of Columbia was an exception. Surprisingly enough, the Court had never issued an authoritative interpretation of the Second Amendment, so there was no binding law to apply to the question of whether the District’s prohibition on individual handgun ownership was constitutional. There was, of course, the amendment’s opaque, one-sentence text: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Even leaving aside the excessive punctuation, the sentence is confusing, and its implications for individual gun rights, divorced from the context of a “wellregulated militia,” are unclear.

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1702692650 Justice Antonin Scalia, for the five-member majority, and Justice John Paul Stevens, for the four dissenters, grappled with the text and history of the Second Amendment and reached opposite conclusions. Who were “the people” whose right the amendment was protecting? According to Justice Scalia, these were the same “people” who enjoyed the other individual rights protected by the Bill of Rights, such as the First Amendment’s“right of the people peaceably to assemble.” The amendment codified a “pre-existing” individual right to self-defense, Scalia concluded. But to Justice Stevens, “the people” addressed by the Second Amendment were those with a duty to serve in the state militia, and the right was a collective one, to be exercised only in connection with military service. The two sides also disagreed over what the amendment implied by the words “bear arms.”Justice Stevens regarded the phrase as an idiom limited to the context of military service. Justice Scalia, recognizing no such limitation, interpreted the phrase as referring more generally to self-defense.

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1702692652 One of the four dissenters, Justice Stephen G. Breyer, while signing the Stevens dissent, proposed an alternative approach, which he called a “focus on practicalities.” The question he asked was what purpose the District of Columbia’s statute served and how that purpose might relate to the interests the Framers of the Second Amendment sought to protect. The District meant to protect public safety in a densely populated urban environment, Justice Breyer observed. He noted that during the colonial period, the major cities of the American colonies pursued a similar goal by restricting the storage of gunpowder in private homes, where it presented a fire hazard. Boston flatly prohibited bringing loaded firearms into “any dwelling-house” or “other building, within the Town of Boston,” despite a provision in the Massachusetts Constitution that granted “the people … a right to keep and to bear arms for the common defence.” Breyer’s conclusion was that even if the Second Amendment was understood to protect an individual right, the Framers contemplated exceptions, and the District’s gun-control law was compatible with the original understanding.

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1702692654 As the Second Amendment example shows, justices employ a variety of tools to interpret the Constitution. Text and history are the commonly accepted starting points although, as this case demonstrates, neither may provide a definitive answer. In his 1997 book, A Matter of Interpretation: Federal Courts and the Law, Justice Scalia describes himself as a textualist and an “originalist”who believes that the only legitimate basis for interpreting a provision of the Constitution is the original understanding of the Constitution’s Framers. “If the courts are free to write the Constitution anew,” he warns, “they will, by God, write it the way the majority wants … By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.”

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1702692656 Justice Breyer, on the other hand, advocates a “pragmatic”approach that rejects overarching theories in favor of “a Constitution that works well for the people today.” In his own book on constitutional interpretation, Making Our Democracy Work: A Judge’s View (2010), Breyer writes that “the Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”

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1702692658 Statutory cases

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