[SOUND] I'm discussing the limits on the federal judicial power. I've talked about the Constitutional Limits that come from interpreting the words case and controversy. I've talked about whether they're interpretive limits. Third I want to talk about statutory limits. To what extent can Congress limit the authority of the federal courts? It's interesting that we are so far into American history, and yet this remains an unresolved question. And it goes to some language that's found in Article III Section 2 of the Constitution. And this is the part of the Constitution that says the Supreme Court can exercise original jurisdiction on certain matters, be the court where the matter is initially filed. And then it says the Supreme Court has appellate jurisdiction over all other matters subject to the exceptions and regulations as Congress shall make. And that's the question with regard to the authority of Congress to impose statutory limits. What does it mean to say that the Supreme Court can hear appeals subject to such exceptions and regulations as Congress shall make? What is Congress' authority to check the federal judiciary by creating exceptions and regulations? This is an issue that's come up through American history, but it's never really been resolved. So for example, in the early 1980s, there were a whole bunch of bills that were introduced, that would have limited federal judicial power to hear controversial matters. One would have said, neither the Supreme Court, nor the lower federal courts can ever challenge any state laws restricting abortion. Another would have said, neither the Supreme Court, nor the lower federal courts, can ever challenge any state laws allowing volunteer school prayers. Earlier than that in the 1960s, there were laws that were proposed that would've said, neither the Supreme Court, nor the lower federal court can ever challenge any laws that require loyalty oaths in a government employment position. There were bills that were introduced that said, neither the Supreme Court, nor the lower federal courts can hear challenges to the apportionment of state legislatures. Subsequently, more recently, bills were introduced saying, neither the Supreme Court, nor the lower federal courts could enter challenges to the Federal Defense of Marriage Act. Federal law that said marriage had to be between a man and a woman. What's interesting is, there have been hundreds of these bills introduced over the course of American history, but none has ever been adopted. So the question of can Congress impose statutory limits on the federal judicial power remains unresolved to this day. And there's strong arguments on both sides. Those who believe that such limits can be imposed say, look at the text of the Constitution. It says, the Supreme Court's jurisdiction is subject to such exception as Congress shall make. If Congress wants to say, it's an exception to Supreme Court jurisdiction to hear abortion cases, or challenge the school prayer cases, or anything else, Congress can do that. They say that this is a crucial, democratic check on the unelected judiciary. I have posed the question, in discussing the federal judicial power of what's to limit the federal courts? An answer that's been given is the power of Congress to create such exceptions. In fact, even some liberal professors, the late Yale Law Professor, Charles Black. Now Emory Law Professor, Michael Perry wrote a famous book saying, the way in which we'll reconcile judicial review with it being a democratic society, is the power of Congress to create exceptions through jurisdiction of the Supreme Court. They in fact, those who take this position point to a Supreme Court decision from 1868, is giving authority for this. It's a case called, Ex parte McCardle. It involves the Writ of Habeas Corpus. I've already mentioned the writ of habeas corpus. It comes to the United States from English law. It's the ability of a person who claims to be held in violation of the Constitutional laws of the United States, to go to federal court to gain release. Article 1 Section 9 of the Constitution says, that Congress shall not suspend the writ of habeas ocpus. In the Judiciary Act of 1789, Congress said, that federal prisoners, those incarcerated on authority of the federal government, can come to federal court with a writ of habeas corpus. In 1867, Congress passed a new law that said that federal and state prisoners who claimed to be held unconstitutionally, can come to federal court for a writ of habeas corpus. It's not surprising this was adopted after the Civil War as a way of making sure that the federal courts could protect, especially former slaves that were wrongly incarcerated. McCardle was the editor of the Vicksburg newspaper in Vicksburg, Mississippi. He wrote a series of editorials strongly criticizing reconstruction. He was arrested, and incarcerated for obstructing reconstruction. He filed a petition for writ of habeas corpus. He invoked the 1867 law. The Supreme Court heard the matter and said, it had the authority to rule on the constitutionality of reconstruction based on as it had come to court under this 1867 law. Congress immediately repealed the 1867 law. President Johnson vetoed the repeal just days before his impeachment trial was to start, and Congress overrode the impeachment. The Supreme Court then and Ex parte McCardle said, McCardle came to federal court under the authority of the 1867 statute, Congress has repealed the 1867 statute, Congress has used its authority to create exceptions to the Supreme Court's jurisdiction, therefore his case is dismissed. And those who support the authority of Congress to restrict the jurisdiction of the court, say McCardle supports that. However, those on the other side would say, that Congress cannot use its power to restrict Supreme Court jurisdiction, to matters like abortion or school prayer. They say all Constitutional powers, all powers, must be used in a manner consistent with the rest of the Constitution. Congress has the power to make commerce among the states, but it couldn't use it to require that newspapers be licensed, that would violate the First Amendment. Congress has the power to tax under the Constitution, but it couldn't oppose a tax on blacks, and not on whites. So those who opposed jurisdiction stripping, say Congress has to use this power consistent with the rest of the Constitution. Congress can't use this power in a way that violates individual rights, discriminates on the basis of race. And they would say, for Congress to act with the purpose and the effect of undermining constitutional rights, like the right to abortion, the right to have prayer in schools is impermissible. They say that McCardle is distinguishable. Now in McCardle I mentioned, there was an 1789 statute that allowed federal prisoners to seek habeas corpus, and then the 1867 statute that allowed federal and state prisoners to seek habeas corpus. The 1867 statute didn't repeal the one from 1789. And all Congress appealed was the 1867 statute. So those who oppose jurisdiction stripping say all McCardle stands for is that there are two statutes that give the base of a jurisdiction, Congress can repeal one of them. It doesn't say that Congress can preclude all jurisdiction, and that that would be unconstitutional. If it's meant to, and has the affect of interfering with constitutional rights. Ultimately those who oppose jurisdiction stripping say, if it were allowed, what's to stop Congress from adopting an unconstitutional law, and then including a provision saying, the Supreme Court, and the lower federal courts can't here challenge the law? If Congress can do that, what's left of the limits in the Constitution? What's left of Marbury versus Madison, that proclaims that it's the province and duty of the Judicial Department to say what the law is? So it's a fascinating question. Can Congress adopt statutes to limit Supreme Court jurisdiction? And even today, two and a quarter centuries in American history, there is no answer. Well I said I wanted to talk about 4 possible Limits on the Supreme Court. I've talked about Constitutional Limits, I've talked about Interpretive Limits, I've talking about possible Statutory Llimits, and finally there are Political Limits. Now the political limits don't determine what the Supreme Court's going to do in a particular case, but I think all would agree there are political limits on what the judiciary can do. I think the most important political limit is the power of the president to appoint Supreme Court justices, and the requirement that the Senate confirm these individuals. I think that the appointment and confirmation process for Supreme Court justices is a key political check. When Richard Nixon ran for president in 1968, he very much ran against the Warren Court. He promised if elected, he would appoint strict constructionists. In Nixon's first two years as president, there were four vacancies on the court, he appointed four individuals who are much more conservative than their predecessors. And this changed the direction of Constitutional law. President Franklin Roosevelt, by sitting in the president for four terms was able to fill all the vacancies in the Supreme Court, and dramatically changed the direction of Constitutional law. Think of it this way, imagine if Al Gore or John Kerry had been president in 2005, when William Rehnquist and Sandra O'Connor left the court. Imagine if they had appointed liberals, rather than the conservative, John Robertson, Samuel Alito appointed by George W Bush. How different the law would be today. To pick a single example, in Citizens United versus Federal Election Commission, the Supreme Court, with the two Bush nominees in the majority overruled a recent case. Now that corporations and unions have the right to spend an unlimited amounts of money in election campaigns, that surely would have come out differently. With the example I mentioned a bit ago, the Second Amendment case from 2008, District of Columbia versus Heller, it would have come out differently. So no power of the president is more important then the ability to fill seats on the Supreme Court. And of course, the Senate has to approve such nominees. Often through American history, the Senate has used its power to reject presidential nominees. During the presidency of George Washington, after John Jay resigned as the first Chief Justice of the United States, a man by the name of John Rutledge was nominated as the second Chief Justice of the United States. He had earlier been confirmed by the Senate to be an associate justice on the Supreme Court. But the Senate didn't like his views in terms of the United States being neutral in the war between England and France, and the Senate rejected him. During the 19th century, 20% of presidential nominations for the Supreme Court were rejected. In the 20th century in the 1930s, President Hoover's pick of John Parker for the court was rejected. And the late 60s, President Nixon's pick of Clement Haynsworth and Harrold Carswell rejected. In 1987, the nomination of Robert Bork was rejected. These are all the senate exercising its power under the Constitution, to be a check on who's going to be on the Supreme Court. And together, this Appointment and Confirmation process is a crucial political limit. There's other political limits. A very famous example of this occurred in the 1930s. As I've already talked about, and I'll discuss in more detail in the next segment. After President Roosevelt was elected in 1932, in his first term the Supreme Court was repeatedly declaring unconstitutional key pieces of his legislation known as the New Deal. After Roosevelt won a landslide re-election in 1936, he proposed what is known as Court Packing. He said there's a lot of older Supreme Court Justice's, so to help them out Congress should pass a law that for every justice over 70, the President will get to appoint another justice up to a maximum of 15. President Roosevelt done his arithmetic. He knew this would quickly give him a majority of justice on the court. This has forever been known as Court Packing, it was very controversial. Congress didn't pass it, in part because very quickly one justice on the court, Owen Roberts, quickly changed his mind and began in 1937 to vote to uphold the New Deal legislation that he previously voted to strike. We'll never know why Robert's changed his mind, but it's always been called the switch in time that saved nine. And it reflects perhaps how the political pressure that a president can bring to bear on the Supreme Court can influence decisions. Most of all, overall we have to remember, that the justices live in American society. Often the justices have failed to enforce the Constitution, falling pressure to the same impulses as the rest of society. The political limits do exist, but only in the sense of outer boundary constraints, and what the court can do. So what I have done in this, the second part of the lecture, is talk about the judicial power. I've described the authority for judicial review, in outcomes from Marbury versus Madison. And I've raised what I think is a profoundly important question. Are there sufficient limits and checks on the unelected judiciary? I've talked about four. I've talked about the constitutional limits, that come from the case and controversy requirement. I've talked about the interpretive limits, I've talked about possible statutory limits, and I've talked about political limits. And so you need to ask yourself, are these enough? Should we have additional limits on the federal judicial power? Or do you conclude that overall the system has worked well over the course of American history, there's enough in the way of constraints and limits? This then finishes part two of my lecture, the Federal Judicial Power.
