III – Judicial Power

I.     The nature of judicial power.

A.     Responsive, not initiative, power.

1.     Biblical basis: Ex. 18:16 – “A dispute comes to me.”

2.     Judges do not initiate or create legal disputes, i.e., the judge must wait for a dispute to come to him.

B.     Issuance of orders, not rules.

1.     Biblical basis: Ex. 18:16 – “I judge between a man and his neighbor.”

– Central principle: A judge resolves individual disputes by issuing orders, not rules.

2.     “Rule” v. “Order.” Deut 20:16-17 (rule); 1 Sam 15:2-3 (order).

3.     Because an order binds specific persons, disobedience of a judicial order is contempt of court. Deut 17:9-12. However, disobedience of statute is not contempt. See, Acts 5:29.

C.     Obligatory, not discretionary, power.

1.     Biblical basis: Ex. 18:16 – “I make known the law of God.”

– A judge must make known the law, exercising legal judgment, not political will. Judicial power has no discretion to create law, but is obligated to declare pre-existing law.

2.     Samuel judged Saul. 1 Sam 13:11-14. [Samuel was a judge.]

3.     Nathan judged David. 2 Sam 12:9-10. [Nathan was a prophet.]

4.     Jesus made spiritual judgments [as a prophet]. John 5:30.

II.     Historic view of judicial power.

A.     An independent judiciary. The judiciary is to be kept independent from political accountability so as to enhance its accountability to the law.

1.     Colonial and early state practice.

a.     Absence of judicial discretion.

b.     Lack of political accountability.

2.     U.S. Constitution affirms. Art. III, § 1.

3.     Recent state practice.

a.     Making judges politically accountable: Abandonment of an independent judiciary.

b.     Root problem: Judicial failure to adhere to law of nature of judicial power.

c.     How to solve?

B.     The role of the judge is to discover, not make, law.

1.     The role of the judge is to declare what law already exists. The standard legal maxim is, Jus dicere, et non jus dare. That is, the province of a judge is to declare the law, not to make it. [U.S. v. Butler.]

2.     A court opinion is not law, it is only evidence of law. [Blackstone, Jurispr. at 33.]

3.     The role of the judge is to exercise judgment, not will. [Osborn v. The Bank of the U.S.; and The Federalist No. 78.]

C.     The role of the judge is to resolve disputes between individual parties.

1.     The role of the judge is to decide individual cases, not to prescribe rules of general conduct for people who are not parties to the case. Marbury.

2.     Federal judicial power extends only to “cases” and “controversies.” By implication, judicial power does not extend to prescribing rules, because all legislative power has been vested in the Congress, exclusive of the federal courts.

3.     Some past U.S. Presidents have recognized that a Supreme Court opinion may bind the parties, but does not bind the executive (or other persons) as a rule of general applicability or political action.

4.     Compare Roe v. Wade: “Statutes of the Texas type.”

D.     The role of case precedent in exercising judgment.

1.     Stare decisis is a latin phrase that means, “let the decision stand.” It creates a presumption that case precedents have accurately determined what the law is.

2.     Being bound by precedent was understood as a means for limiting judicial discretion, and keeping the judge’s decision to pre-existing law.

3.     However, case precedents are binding in moral force only, that is, as a matter of persuasion, not as a matter of obligation. Prior opinions are not to be followed if plainly absurd. Thus, judicial opinions are not “law,” they are only evidence of it.

III.     Case study of Marbury v. Madison (1803). S.Ct. (per C.J. Marshall) upheld Marbury’s right to have his commission as Justice of the Peace delivered, but declared invalid part of Judiciary Act confering S.Ct. jurisdiction to remedy the wrong.

A.     Responsive, not initiative.

1.     Marbury initiated the present dispute – Madison didn’t even show up.

2.     Compare executive power. President has political (discretionary) powers where his will controls – appointments are discretionary.

3.     Aside: Why didn’t Marshall recuse himself?

– Marshall was Sec’y of State when commission was issued.

– He was subject to law, not his own opinion.

– He knew the difference btw. being a judicial and an executive officer.

B.     Resolution of individual disputes.

1.     Key issue in Marbury: A dispute btw. two individuals?

a.     Power of Presidential appointments: Art. II, Sec. 2, Cl. 2. An aspect of executive power at least partially discretionary in nature.

b.     For an individual dispute to exist, the parties must be subject to a legal duty.

1)     If the delivery of Marbury’s commission was discretionary, then the matter is political, not legal.

2)     Political/discretionary acts are “plenary” (not judicially reviewable). Judges have jurisdiction only over matters of law/obligation.

3)     Obligations cannot be discharged on a discretionary basis.

c.     Whether an act is discretionary or obligatory depends on the nature of the act, not the office of the person who acted. Not all executive decisions are discretionary.

2.     Resolution: Once the seal of the U.S. has been fixed to the President’s signature, the commission vests, and discretion ends. Delivery is a matter of obligation.

C.     Make known the law of the constitution.

1.     Constitution Art. III, Sec. 2, Cl. 2. Original v. appellate jurisdiction.

a.     Madison is not a “public minister.”

b.     Issue in Marbury: Can Congress expand the Court’s original jurisdiction?

c.     Original jurisdiction must be expressly conferred by Constitution, not Congress.

d.     Congress cannot modify original jurisdiction.

e.     The nature of appellate jurisdiction: to correct proceedings already instituted, not to create a cause.

2.     The nature of a constitution is that it embodies the supreme law of the land.

a.     A constitution pertains to law, not politics, because it embodies permanent principles, not rules of convenience.

b.     A constitution is by nature supreme over any conflicting statute.

3.     The nature of a written constitution is that it binds the Court, as well as Congress.

a.     It is the nature of judicial duty to decide which of two laws governs the case, pursuant to the Constitution.

b.     The Court must give effect to the will of the law, not the will of the judge.

4.     Resolution: Judiciary Act Sec. 13 is unconstitutional.

IV.     Historic view of S.Ct. jurisdiction.

A.     Original jurisdiction must be expressly conferred by the Constitution and cannot be granted or modified by Congress.

B.     Federal courts decide federal law, state courts decide state law. Federal court jurisdiction is limited to federal issues, and to state cases holding against the constitution or laws of the U.S.

V.     Modern view of judicial power. Cooper v. Aaron.

A.     S.Ct. has the exclusive and supreme power to declare “what the law is” in the U.S.

B.     S.Ct. opinions are “laws” made supreme over the nation by the Supremacy Clause.

C.     The S.Ct. may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause.

D.     Does Cooper v. Aaron follow Marbury? Is the judicial power to interpret the constitution exclusive? Is it “law”? Are either of those what Marshall said?

VI.     Federal court jurisdiction – Modern View.

A.     Basic rules of jurisdiction.

1.     Federal judicial power extends to cases involving:

a.     Interpretation of the Constitution, federal laws, treaties, admiralty and maritime;

b.     Disputes between states, states and foreign citizens, and citizens of diverse citizenship.

c.     The Supreme Court may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause.

2.     Original Jurisdiction of Supreme Court. Art. III, § 2, Cl. 2.

a.     All cases affecting ambassadors, public ministers, consuls, and those in which a state is a party.

b.     But, Congress has given concurrent jurisdiction to lower federal courts in all cases except where two states are parties. Original jurisdiction of S.Ct. is not exclusive.

c.     Would Marshall agree?. Is original jurisdiction exclusive?

3.     Appellate Jurisdiction of Supreme Court extends to all cases to which federal power extends, subject to congressional exceptions and regulation. Cases can come to the Court by one of two ways:

a.     Writ of Certiorari. The Supreme Court has complete discretion to hear cases that come to it by certiorari. The cases that come by certiorari are:

1)     Cases from state courts where

A)     the constitutionality of a federal statute, federal treaty, or state statute is in issue; or

B)     a state statute allegedly violates federal law.

2)     All cases from federal courts of appeals.

3)     All writs of certiorari must be approved by “The Rule of Four.”

b.     Appeal. The Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by a three-judge federal district court panel that grants or denies injunctive relief.

c.     Congressional regulation of appellate jurisdiction.

– How is federal court jurisdiction defined? Parties or subject matters?

– Could disputes between certain parties be limited to the lower federal courts? Is all federal judicial power necessarily vested in the Supreme Court?

– Could Congress prevent S.Ct from hearing appeals of certain kinds of cases, such as challenges to abortion laws? – prevent lower courts from ordering relief against such laws? Are these the same?

B.     Congressional regulation of appellate jurisdiction.

1.     Ex Parte McCardle (1868). The Court refuses to pronounce judgment in a case where Congress has repealed the Court’s appellate jurisdiction after the case was argued.

a.     Congress can define the S.Ct.’s appellate jurisdiction.

b.     Jurisdiction = “juris” “diction” – law expression, or the power to declare the law.

c.     Why wasn’t this an ex post facto law? Arguments in S.Ct. were heard before the statute repealing jurisdiction was passed.

2.     U.S. v. Klein (1872). S.Ct. invalidated federal law requiring dismissal of suits to reclaim property by Southerners where loyalty to U.S. was “proved” by a Presidential pardon. In effect, Congress wanted to presume that pardoned people were
disloyal.

a.     Statute negated effect of Presidential pardon (separation of powers problem).

b.     Statute required court to dismiss certain cases (i.e., directed the court to make certain findings of law and/or fact).

c.     Not a regulation of jurisdiction at all. See Art. III, § 2, Cl. 2. Can Congress regulate and except findings of law and fact?

3.     Martin v. Hunter’s Lessee (1816). S.Ct required state courts to adhere to decisions of the Court reviewing the judgments of those state courts.

a.     Congress can vest appellate or original jurisdiction in lower federal courts.

b.     S.Ct. can review state court decisions.

1)     Constitution binds states in corporate capacity.

2)     Federal system is not compromised.

3)     Supremacy Clause demands it.

c.     Compare with contempt power. See, Deut. 17:8-13.