A Lasting Image

Over the past decade the U.S. Supreme Court has seen its public approval rating erode from 62% in 2001, to a new low of 49% entering 2013.  Public opinion polls are not exactly legitimate measurements for the Court and for good reasons.  Given the nature of the judicial branch's responsibility, the Supreme Court must be independent from opinion polls, unlike the executive or legislative branches.  The Court is viewed more and more through an ideological prism where the Justices are categorized based on which party's President appointed them, and although the Court has erred in past rulings and will disappoint both sides of the political spectrum in the future, one cannot overlook the Court rulings which have upheld the guiding principles of the Constitution in the face of unbridled opposition and ignorance.  Two images in particular I recently came across stand out and illustrate how the Supreme Court remains a beacon of hope to this day.

To the left is a picture of Mrs. Nettie Hunt and her daughter, Nickie, sitting on the steps of the Supreme Court the day after the 1954 Brown v. Board of Education ruling held school segregation to be unconstitutional.  Mrs. Hunt was able to explain to her daughter for the first time that the Supreme Court unanimously found racial school segregation in direct violation of the Equal Protection Clause of the 14th Amendment, and that she was no different from the white children across the nation.  From the birth of our country, African-American parents have been forced to explain to their children why society held them to a different standard, but in one sweeping ruling the Court validated the liberty of all American citizens, regardless of race.

 

One of the most remarkable aspects from the above picture is that only 24 hours earlier, Mrs. Hunt was unable to explain to her daughter why the equal protection of the laws laid forth in the Constitution did not apply to African-American children.  The Justices of the Court understood the implications of their ruling and took the unusual step to ensure a full majority opinion in an effort to deprive the opponents of desegregation any room for a valid counterargument.  When the Court announced their ruling for Brown v. Board of Education in May of 1954, an incredibly large portion of the country was still subjected to legal, racial-segregation in schools.

This map of the country illustrates the large number of states that legally required educational segregation in 1954, just prior to the Supreme Court ruling.  When coupled with the earlier picture of Mrs. Hunt and her daughter sitting on the steps of the Supreme Court, the ruling from Brown v. Board of Education stands out as a beacon of hope for all seeking equal justice under the law.

The Court Case Above All Others

The first three Articles of the U.S. Constitution lays forth the three branches of government.  Most understand our federal government is comprised of the legislature (Congress), executive (President), and judicial (Supreme Court).  While Congress has the power to enact laws and the President is the Commander in Chief, the power of the Supreme Court is not specifically enumerated in the Constitution.  Article III explains that:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

However, the extent of the Supreme Court's authority and constitutional oversight was not established until the case of Marbury v. Madison  in 1803.  The power of the federal courts to void acts of Congress, and subsequently the President, as unconstitutional was established by this one case.  The ability of the judiciary to void a law or action of the legislative or executive branch as unconstitutional is known as Judicial Review.  The ruling by Chief Justice John Marshall (to the left) established the Judicial Branch as an equal to the Executive and Legislative Branch, while ensuring the system of checks and balances of the federal government continues to this day.  The idea of judicial review is uniquely American as no other country or state at the time vested so much power in their own judiciary.  Without judicial review established in Marbury v. Madison, the ability for federal courts to nullify unconstitutional laws or actions would not exist!   

What Happened?
The details surrounding Marbury v. Madison is complicated, yet the outcome is considered the most important ruling in Supreme Court history.  The tension during the election of 1800 was nearly as partisan as today, with the main conflict being the disagreement between the federalists and anti-federalists.  The Federalists (John Adams), who were proponents of a strong federal government, lost the election of 1800 to the anti-federalists (Thomas Jefferson) who wanted most of the power to be in the hands of the individual states.  In the final days of President Adams' term, he made a large number of appointments which were confirmed by the U.S. Senate and signed by the president.  However, when Thomas Jefferson took office he ordered his Secretary of State, James Madison, not to deliver the official commissions, essentially preventing any of the appointments from assuming their jobs.  William Marbury, one of the appointees, petitioned the Supreme Court to compel Secretary of State Madison to deliver the commissions and allow him to begin his job.

The Unanswered Questions 
To resolve the case, Chief Justice John Marshall raised three rhetorical questions he wanted the Court to answer and which would resolve the case before them.  It was unusual for the Chief Justice to pose three questions for the Court to answer themselves, yet these three questions altered the course of American history.

> Was Marbury entitled to his appointment?
> Was the lawsuit he filed a valid avenue to get his appointment issue resolved?
> Was the Supreme Court the place for Marbury to receive the relief he seeks?

Answer 1 - Chief Justice Marshall held that Marbury had been appointed in accordance to all rules and procedures, and therefore was entitled to his commission.

Answer 2 - Since Marbury had been legally appointed, the law must afford him a remedy and therefore the courts were a valid avenue to resolve his issue.  Marshall added that it is the responsibility of the courts to protect the rights of individuals, even against the President of the United States. (This apparent "lecture" to President Jefferson was very controversial at the time!)

*Answer 3* - Marshall's answer to the third question is where the idea of judicial review was developed.  The Chief Justice held that the Supreme Court could NOT grant Marbury the relief he seeks because he should not be before the Supreme Court at all.  A provision of the Judiciary Act of 1789 passed by Congress extended the "original jurisdiction" of the Court, or the cases which the Supreme Court can hear.  Under the 1789 Act, the Supreme Court could take cases like Marbury without lower courts first hearing the case, a provision Chief Justice Marshall said was not constitutional. 

This is confusing right?  What this actually means is that the law passed by Congress which allowed Marbury to petition the Supreme Court directly was not constitutional according to the Chief Justice Marshall.  So although they sympathized with Marbury and even lectured Thomas Jefferson, they ruled that Marbury should not have been allowed to argue his case before the Court because the law passed by Congress allowing him to do so was unconstitutional.  For the first time, the Supreme Court said they have the power to void a law from Congress (or an act of the President) and the theory of judicial review was born!  Without judicial review the Supreme Court could never have desegregated U.S. schools, struck down DOMA, or found President Nixon guilty of obstruction of justice.  The case of Marbury v. Madison is without doubt the most significant Supreme Court ruling in our country's history.

The Bill of Rights: Amendments 1 - 10

Now that the Supreme Court is on recess until October, we have a little more time to digest all of the rulings from the past term and all the various components that lead to the Court ruling one way or the other.  I actually began this post with the idea of focusing on the Standards of Review (Levels of Scrutiny Test), a theory of Judicial Review used by the Supreme Court when deciding cases that raise constitutional questions.  However, as I began analyzing this relatively complicated theory of law I realized sometimes it is better to take a step back before moving forward.  When there is a reference to the First or Second Amendment, many of us have a general idea of what those clauses in our Constitution proclaim.  However a reference to the Fifth Amendment or Fourteenth Amendment likely will stump the average American.  In fact, do you know how many Constitutional Amendments there actually are? (Hint: the the most recent Amendment ratified was in 1992).   

Having a moment to catch our breath without a flurry of new court rulings being handed down, I thought it would be useful to break down the document that is the basis for all three branches of government and our entire system of law.  When I read court opinions, whether it be in the news, for work or a class, I CONSTANTLY find myself referring back to the U.S. Constitution.  There is no shame in refreshing your memory on the fundamentals of our governing doctrine!  When reading about a court decision I often have to look up words or theories being discussed.  There are times when I am reading a topic I feel I should know in detail, yet I still find myself having to look up words and references.  To start at the beginning, I just want to break down the Bill of Rights.

The Bill of Rights:  As difficult as it may be to read, this is a picture of the original Bill of Rights which comprise the first 10 Constitutional Amendments.  They were submitted by James Madison to the 1st United States Congress and came into effect on December 15, 1791 through the ratification by three-fourths of the States.  Prior to the Constitution, the 13 colonies operated under the Articles of Confederation, but it proved too weak and ineffective for the fledgling union.  When the current Constitution was being ratified by the States, some were worried about the rights of individuals and wanted specific protections laid out.  To avoid a failure in adopting the Constitution, the Bill of Rights was written and compose the first ten of the now twenty-seven Constitutional Amendments.  So what is actually in the Bill of Rights?  

 

The Bill of Rights

1. Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
 
2. Amendment II: 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.
 
3. Amendment III: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
 
4. Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 
5. Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
 
6. Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
 
7. Amendment VII: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
 
8. Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
 
9. Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
 
10. Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

I hope this helps remind you of at least one or two of our earliest rights as they are guaranteed by the U.S. Constitution.