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October 23, 2007

The Power of The Courts

Farrell Keough

During our last time together, we discussed how "Enlightened Maryland" has become. We give away our taxes, our services, and even our children's education to illegal intruders in deference to a more enlightened way of life.

We discussed how our "Enlightened Leaders" have aligned themselves to ensure these actions continue. Finally, we discussed a specific Supreme Court case [Plyer v. Doe, 1982] that requires us to educate the children of these illegal intruders. We finished our conversation by noting that Judicial Activism may apply in this case, but we need to define what we mean by this term.

Before we delve into this vicious learning curve, we must first get a short background on how the courts gained the power they now enjoy.

Early in our nation the case of Marbury v. Madison (1803) came before the Supreme Court. Under President John Adams, the Federalist Party retained control of the courts. Just prior to leaving office, President Adams signed the Judiciary Act of 1801 which created a number of new federal judgeships. One of the confirmed appointments was a Maryland banker named William Marbury.

When Republican Thomas Jefferson became president, he began the process of filling vacancies. The new Secretary of State was James Madison. When Mr. Marbury requested his commission from Secretary Madison, President Jefferson instructed Mr. Madison to refuse.

Obviously, this situation spiraled into a nasty battle and finally ended up before the Supreme Court. Mr. Marbury asked the court to issue a writ of mandamus, or an order instructing a public official to perform his/her duties. Chief Justice John Marshall ordered Secretary of State Madison to explain this situation during the next session of the court.

In the intervening months, Congress passed the Judiciary Act of 1802, which altered the session schedule of the Supreme Court dragging it out until early 1803.

Upon their next session, Secretary Madison did not appear before the court. This put the Supreme Court in a difficult position; if they decided in Mr. Marbury's favor, they believed Secretary Madison would ignore the court's ruling and further humiliate the court, rendering it powerless.

Chief Justice Marshall rendered a decision that was both brilliant and frightening in the breadth of its implications. He criticized Secretary Madison, (and by implication President Jefferson) for not giving the commission.

Secondly, the Chief Justice did not uphold the writ of mandamus, but instead determined that the Constitution did not allow that right to the courts. This created a totally new power to the courts - judicial review.

The Framers of the Constitution did not directly extend this power, yet by this single decision, the Supreme Court imbued upon itself one of the greatest powers in our three-tier government.

This power gave the courts the authority and power that can exceed the two other branches. Not only can the courts decide upon the legitimacy of a law or action, they can take the next step and determine the course of action to remedy the actions brought before them.

While that may be necessary in certain circumstances, (for instance, if a ruling would not give remedy and the circumstance was very pressing, guidance can be given) those circumstances have been extended tremendously. In short, if a case is determined unconstitutional, it is not the responsibility of the Supreme Court to determine a new law to replace it; that is the responsibility of the Legislative Branch, even if this causes distress and added delay to the individual or group bringing suit.

Realizing this movement towards an excess of power and authority, we can now move into the area of understanding some of the basic structures used by our courts to decide upon the issues brought before them.

To begin, we need to review a basic tenant of legal review: stare decisis ("to stand by things decided"). Basically, the courts use precedents and existing law to review a case brought before them. This seems logical and reasonable. What is perplexing is the tiered system that is generally accepted.

"First, court decisions interpreting statutes are often said to be owed the highest degree of stare decisis because legislatures require stability of interpretation of statutes from the courts for the efficacy of the law-making power. If courts have interpreted a statute incorrectly, the legislature may respond by amending the statute. If, however, the interpretation of a statute changes from year to year, the legislature has less control over the content of the statutory command.

"Second, common law interpretations by courts should remain stable for much the same reason: common law adjudication is gap filling to provide a source of law in the absence of express (and superior) legislative direction.

"Third and last in the hierarchy of decisions to which stare decisis has a claim are constitutional decisions. The rationale for this lesser degree of deference is a separation of powers argument based upon the fact that the federal Constitution is difficult to amend. The argument is that, in constitutional law, more so than for other sources of law, the 'people' have no effective recourse to correct errors in legal interpretation by the judicial branch."*

This final tier is further expanded to give Constitutional law precedents even less weight, "because the difficulty of amending the Constitution makes the Court the only effective resort for changing obsolete constitutional doctrine."**

Think through this until we meet again. This is a stunning tier system. The document upon which our nation rests is given the least deference when making a decision in court.

If you will remember, the Plyer case was based upon a determination that the Constitution was errant; that one section included specificity as to the "jurisdiction" of a person and what rights that conferred upon them, while other amendments did not make that distinction. We will explore further definitions and ideas in the next article and make what conclusions we can as to the Judicial Activism of this ruling.

Until then, remain enlightened.

* Polly J. Price, Professor of Law, Emory University School of Law. A Constitutional Significance for Precedent: Originalism, Stare Decisis, and Property Rights.

** Burnet v. Coronado Oil & Gas, Co., 285 U.S. 383, 405 (1932) (Brandeis, J., dissenting)

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