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Constitutional Landmarks: Supreme Court Decisions on Separation of Powers, Federalism, and Economic Rights 1st ed. Edition Charles M. Lamb full chapter instant download
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Constitutional
Landmarks
Supreme Court Decisions
on Separation of
Powers, Federalism,
and Economic Rights
Charles M. Lamb · Jacob R. Neiheisel
Constitutional Landmarks
Charles M. Lamb · Jacob R. Neiheisel
Constitutional
Landmarks
Supreme Court Decisions on Separation of Powers,
Federalism, and Economic Rights
Charles M. Lamb Jacob R. Neiheisel
Department of Political Science Department of Political Science
University at Buffalo, State University University at Buffalo, State University
of New York of New York
Buffalo, NY, USA Buffalo, NY, USA
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer
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Preface
v
vi PREFACE
In closing we thank Angie, Kelly, and especially Ada for their patience
and understanding; our editors, Michelle Chen and Rebecca Roberts, for
encouraging our work on the book; Sheldon Goldman, Rachel Hinkle,
Nancy Kassop, and David O’Brien for providing constructive suggestions
and sage advice; Lee Epstein for generously sharing a needed database;
and Josephine Moore for her excellent substantive and editorial assistance.
Without this encouragement and assistance, this project would not have
viii PREFACE
Index 275
ix
List of Figures
xi
List of Tables
xiii
CHAPTER 1
The U.S. Constitution, the oldest written constitution, gives each branch
of the federal government certain distinct powers, apportioned through
a system of separation of powers and checks and balances in order to
protect any one branch from abusing its authority. The nation is therefore
said to have three separate governmental branches sharing power. Let’s
take a few examples. Article I assigns all legislative powers to Congress;
accordingly, Congress is responsible for passing all federal statutes and
presenting them to the president for approval or disapproval. The presi-
dent, who is ultimately responsible for enforcing the law, can nevertheless
veto Congress’s proposed laws, but Congress can override a presiden-
tial veto, and the Supreme Court can still rule that the final statute is
unconstitutional. The president is likewise assigned all federal executive
authority under Article II, including that of commander in chief, but
Congress must pass laws appropriating funding for the armed forces and is
specifically delegated the power to declare war. As the ultimate check, the
House of Representatives can impeach the president for treason, bribery,
or other high crimes and misdemeanors, and the Senate can conduct a
trial to remove him (or her) from office. As a final illustration, Article II
stipulates that the president shall appoint all federal judges and numerous
executive branch officials, but those appointments must undergo the
advice and consent of the Senate, and the Supreme Court can rule that
actions by presidential appointees violate the law.
This chapter introduces the Supreme Court and its exercise of power,
beginning with five fundamental points. First, the Supreme Court is the
final interpreter of the Constitution—not the president or Congress (but
see Blackstone 2013; Fisher 2019; Murphy 1986).1 Second, many of the
Constitution’s words, phrases, and concepts are ambiguous and unde-
fined, so they frequently permit the justices ample leeway to make major
decisions, sometimes unprecedented in nature, affecting the entire nation
and millions of people. Third, the Constitution, other sources of law, judi-
cial precedents, legal history, social norms, or a lawsuit’s facts frequently
affect how the Supreme Court decides cases. Fourth, though, not only
legal but also political considerations influence whether the Court accepts
a case and how it is decided, including the justices’ ideologies, strategies,
and role conceptions (see, e.g., Epstein and Knight 1998; Gibson 1978;
Segal and Spaeth 2002) as well as the possibility of external factors such as
public opinion and interest groups (see, e.g., Caldeira and Wright 1988;
Giles et al. 2008; Mishler and Sheehan 1993). Fifth, Supreme Court
decisions have legal, political, economic, and social impacts on America
(see, e.g., Canon and Johnson 1999; Rosenberg 2008). As you read the
following pages, the importance of these points will become apparent.
Constitutional Basics
The federal courts are the focus of Article III of the Constitution, where
Section 1 initially declares, “The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.” So the Supreme
Court is the only court that Article III expressly creates; the Constitu-
tion leaves it up to Congress to create all inferior federal courts, which
are known as the U.S. district courts and the U.S. courts of appeals.
These inferior courts are, respectively, the federal courts of original juris-
diction and the initial courts of appellate jurisdiction in the vast majority
of cases before an appeal can ordinarily be taken to the High Court.
Section 1 continues by stating that federal judges shall hold office during
good behavior. Because it is rare for a federal judge to be removed from
office (only eight have been impeached and then convicted by the Senate),
they often serve into their seventies or their eighties. Justice Oliver
Wendell Holmes sat on the Supreme Court from 1902 to 1932—when
he finally retired at the ripe old age of ninety.
1 THE SUPREME COURT AND JUDICIAL POWER 3
Article III, Section 2 indicates that federal judges have the power to
decide cases relating to the Constitution, federal law, and federal treaties.
In broad terms, it also explains other cases to which the federal judi-
cial power extends—“to all Cases affecting Ambassadors, other public
Ministers and Consuls; to all Cases of admiralty and maritime Jurisdic-
tion; to Controversies to which the United States shall be a Party; to
Controversies between two or more States; between a State and Citizens
of another State; between Citizens of different States; between Citizens
of the same State claiming Lands under Grants of different States; and
between a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.” Finally, Section 2 makes the distinction between the original
and appellate jurisdiction of the High Court. Original jurisdiction means
that a case can be initiated in the Supreme Court, which is rare, whereas
appellate jurisdiction means that the justices may only hear appeals from
the lower courts in those cases, which is typical.
Third, the Supreme Court must have jurisdiction to hear and decide
a case, and the Court’s jurisdiction is of two types. As noted above, the
Court’s original jurisdiction is narrow, but its appellate jurisdiction (which
is defined by Congress) includes the much larger number and variety of
cases that the Court hears on appeal from federal and state courts. Next,
justiciability deals with the question of whether the Court is the proper
branch of government to decide an issue. If most justices determine that a
case presents a political question, the Court will announce that it is not the
proper branch of government for a decision—that is, the case is said to be
nonjusticiable (see Luther v. Borden [1849]; Colegrove v. Green [1946]).
However, if the justices decide that a case does not involve a political
question, then they are likely to rule that it is justiciable (see Baker v. Carr
[1962]; Nixon v. United States [1993]). The sixth concept, standing to
sue, concerns whether litigants meet the judicial rules that permit them to
bring a matter to the Court, such as whether they are directly affected by
the issue involved. If they lack standing, their appeal is denied (see, e.g.,
Flast v. Cohen [1968]; Massachusetts v. Environmental Protection Agency
[2007]).
Other concepts such as adverseness, advisory opinions, ripeness, and
mootness may also be relevant in a case. The Supreme Court requires
adverseness (that a case involve genuinely opposing parties) before it will
exercise power, so it will not decide friendly suits or hypothetical issues.
Likewise, the justices will not issue advisory opinions on questions not
raised in lawsuits, even at the request of executive or legislative branch
officials. Nor will they decide an appeal unless it is ripe—that is, it cannot
be too early or too late for review. Further, if a case is brought too late
because the issue has already been authoritatively decided, the justices will
hold that it is moot in most circumstances. Yet only the Court decides
whether it will exercise judicial power and how much. If the justices
find that no case or controversy is presented or that an issue is moot,
for instance, they are often choosing not to exercise power. If they say
they have jurisdiction and that an issue is justiciable, however, they then
routinely exercise their power by accepting the case for review.
Cases discussed in this chapter relate to whether the justices can or
will exercise power by deciding an appeal. As a result, judicial review is a
question in Marbury v. Madison; jurisdiction is a question in several cases,
including Chisholm v. Georgia (1793), Barron v. Baltimore (1833), Ex
parte McCardle (1869), and Rasul v. Bush (2004); justiciability is at issue
1 THE SUPREME COURT AND JUDICIAL POWER 5
won the popular vote by roughly five hundred thousand ballots nation-
wide, but George W. Bush (R-TX) won the Electoral College vote (271 to
266) and, thus, the presidency (on the 2000 election see, e.g., Ackerman
2002; Gibson et al. 2003; Gillman 2001; Nicholson and Howard 2003).
Significantly, of course, the High Court’s decision in Bush v. Gore (2000)
effectively gave George W. Bush the election, 5–4, with five Republican
appointees voting in his favor.
Issues of representation in general remain fertile ground for exam-
ining the nexus of politics and law. The Court has repeatedly refused
to wade into debates over partisan gerrymandering (the drawing of elec-
toral boundaries in such a way that advantages one party over another),
declaring the matter to be a fundamentally political question and there-
fore not justiciable. However, during the brief period prior to the Court’s
decision in Rucho v. Common Cause (2019), in which the majority once
again reiterated its stance that partisan gerrymandering is an issue that
lay beyond the reach of the judiciary, it appeared as though the Court
had signaled that a standard upon which determinations of fairness in the
redrawing of district boundaries might be created.
Social scientists and mathematicians alike seized upon several justices’
suggestions in League of United Latin American Citizens v. Perry (2006)
that a legal test rooted in the concept of “partisan symmetry” might
be constructed so as to promote fairness in the conversion of votes to
seats in the legislature (Stephanopoulos and McGhee 2015). Thus, some-
thing of a cottage industry emerged within the scholarly community with
respect to the construction and testing of different metrics associated
with the concept of partisan symmetry (e.g., Best et al. 2018; Chen and
Rodden 2015; Tam Cho and Liu 2016). Hopes that such efforts might
yield a usable standard that the Court would be able to apply in future
cases involving partisan gerrymandering were dashed with the majority’s
outright refusal to engage with what Chief Justice Roberts described as
“sociological gobbledygook” during oral arguments in Gill v. Whitford
(2018). By deciding not to decide on the constitutionality of partisan
gerrymanders, then, the Court has all but assured that, at least for the
foreseeable future, one political party will continue to wield an outsized
degree of influence in Congress as well as in the legislative bodies of the
several states.
A similar sequence of events played out in the wake of the Court’s deci-
sion in Thornburg v. Gingles (1986), as some states interpreted that ruling
as effectively mandating the creation of majority-minority districts. States,
1 THE SUPREME COURT AND JUDICIAL POWER 7
Chief Justice John Jay advised George Washington; Chief Justice Roger
B. Taney advised Andrew Jackson and Martin Van Buren; Brandeis
advised Woodrow Wilson; Stone counseled Herbert Hoover; at least three
justices—Douglas, Frankfurter, and Stone—advised Franklin Roosevelt;
Chief Justice Fred Vinson advised Harry Truman; and Abe Fortas coun-
seled Lyndon B. Johnson. At one time or another, several justices were
also considered as potential presidential or vice presidential candidates.
Earlier in the nation’s history a few justices even openly campaigned for
presidential candidates or occasionally ran for their home-state governor-
ship. Other justices have held unique quasi-political positions, including
Robert Jackson, who was the chief prosecutor at the Nuremberg War
Crimes Trial following World War II, and Earl Warren, who headed the
commission that investigated President John F. Kennedy’s assassination
during the 1960s (Abraham 1992; Epstein et al. 2015).
II. FEJEZET.
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