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The Structure of the Federal Judiciary

The 94 U.S Trial courts: Where facts are adjudicated; 1 judge, then goes to appeals in circuit
court.

Circuit Courts: 11 numbered courts + DC court, a court of appeals.

Need a DC court because, deals with ambassadors, state officials, when States are both
parties in a case. Panels of 3 judges, the facts are as determined in a trial court, the only
matter is the law particularly in these appellate courts.

Supreme Court: 9 Justices, 1 Chief Justice, highest court in the U.S.

Created by Art. III. in the Constitution, the number of justices was not prescribed, only
that there would be a Supreme Court, with a Chief Justice, and that Congress could determine
numbers of justices and any other necessary courts.

Current Justices, on the Roberts court (ordered by seniority):

● Chief Justice John Roberts: appointed by George W. Bush; moderate conservative
● Clarence Thomas: the most senior justice; the most conservative justice; appointed by
George H. W. Bush.
● Samuel Alito: appointed by George W. Bush; the most conservative justice
● Sonya Sotomayor: appointed by Barack Obama; the most progressive justice
● Elana Kagan: appointed by Barack Obama; liberal (centerish)
● Neil Gorsuch: appointed by Donald Trump; conservative
● Brett Kavanaugh: appointed by Donald Trump; conservative.
● Amy Coney Barrett: appointed by Donald Trump; conservative
● Ketanji Brown Jackson: appointed by Joe Biden; liberal; the court’s newest justice
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Modalities of Constitutional Interpretation

→ Originalism: looking at the history surrounding the constitution, basically authorial intent
→ Textualism: what do the words literally mean
→ Doctrinalism: what is the judicial precedent
→ Structuralism: what is the structure of the Constitution, basically what are the different parts
of the Constitution and how do they work together.
→ Prudentialism: what would the practical consequences be from the decision of the case
→ Aspirationalism: what are the underlying values of the case

Any level of Federal law will always supersede any level of state law, even a State supreme court
decision.

The Declaration of Independence: It is a declaration of the rights that the British empire had
deprived them of, therefore that they were returning to a form of self-governance, and that they
would no longer be subjected to British government. Severing any bonds between them and the
political body of the British Empire.

The Effect of the Declaration of Independence: It essentially created 13 independent

countries that joined together to fight the Crown.

Article of Confederation: a treaty between the 13 independent, sovereign states; gave legislative
power to the Continental Congress.
Lasting significance:
● A perpetual union between the sovereign bodies, doesn’t prevent secession. Respects the
sovereignty of the individual states and stands as an agreement to work together for a
‘perpetual’ amount of time but is not necessarily a legally binding nation making
document.
● Established the terms: “the united States of America,” “Congress,” “President” being the
executive of the congress but with very limited power
● Congress depends on the States to fund any war that they fight.

Defects:
● No tax powers
● No military, must rely on state militias
● No permanent executive
● No national control on the economy, couldn’t print a “universal” form of money,
meaning that the states determined their own forms of currency, made commerce difficult
between states, Congress couldn’t regulate.
● Unanimity required for amendments, no majority rule, every state had to affirm for any
amendment to the Articles. Must have been a 13/13 vote.
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National Security threats under the Articles of Confederation:

Possibility of Foreign Aggression: because there was no unified military, the states’
militia was the only military defense, and that increased the risk of foreign aggression because
they wouldn’t have the same strength to combat it as if they had a national military.
Possibility of Domestic Uprising: took the form of slave rebellions, strained relationship
between entities, i.e., banks and debtors.

Constitutional Convention of 1787: Purpose was to amend the articles of confederation and then
James Madison decided to derail the whole thing with his new form of Government structure.
It turned into a debate between the three factions:
The Monarchists, they thought of themselves as Englishmen, they didn’t want a president or
anything, they wanted a king or something very like.
The Nationalists (Federalists): wanted a Congress centric government without any executive,
focused on National power rather than independent states. (Madison was a nationalist).
The Unnamed party, if you have to give it a name, Anti-Federalists: wanted to keep the states,
and amend the Articles of Confederation, were not prominent in the debates, because they did
not come, they thought the convention was not going to do anything productive, Patrick Henry
was among these, and refused to attend because he thought Hamilton was stupid.

One of the most divisive factors in the debates were the Big State vs. Small State debates. The
big states being the ones who would inherently get the most power and wanted the power. The
small states did not have the same level of representation and wanted better representation and
more power.

The Virginia Plan: drafted by Madison presented by Randolf because Randolf was the better
speaker.
Was shocking because it had nothing to do with Amending the Articles.
Revolutionary idea: because it eliminated the Continental Congress that was created by the
Articles of Confederation.
The Virginia plan created a Bicameral legislature: consisting of a Lower house, number of reps
determined by population and an Upper house selected by reps of the lower house. Created the
position of the Executive which was chosen by the congress and the Judiciary was selected by
congress. Basically: the congress controlled everything.

The Connecticut Compromise is how we got to the legislative body we have today: it ensured
equal representation in the senate for the states, so smaller states would have the same amount of
representation as larger states. The Connecticut compromise changed the formula for
representation in congress. The House was populated by representatives according to population
and general vote, the Senate representatives were chosen by state legislatures, rather than the
representatives in the Lower house.
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⅗ Compromise (Art. I. § 2. cl. 3 ): Was a compromise between the northern and southern states,
which had a higher slave population. The Southern states wanted representation by population to
include slaves so that they would have a higher number of Reps, which meant more political
power. And the northern states wanted representation per free man, to take away that power from
the southern states. But the Northern states wanted taxes to be per capita so that the southern
states would pay more because of the slave population. The Southern states wanted taxes to be
by the free man population so that they would not pay as much money. The ⅗ Compromise was
such that every slave would count for ⅗ of a person so that the South would have the population
for votes and the North would have the population for taxes.

Presidential selection: by the electoral college.1 State legislature can choose who votes, State
legislature defines how wide suffrage reaches (whether slaves or women can vote).

Organization of the 1787 Constitution:

I. Legislative Branch

1 Directly plagiarized from the slides Dr. Merriam has on Canvas.

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Substance of Legislation (what congress has the power to do) congress does not
have “police power” which means that they “cannot enact laws for the health,
safety, welfare, and morals of the community.”2 Congress’ powers are specific in
art. I, so that it doesn’t have a broad undefined legislative reach. Procedure for
legislation: how laws get passed.

II. Executive Branch:

established the presidency. Art. II § 3 is the take care clause. That the President
“shall take care that the laws be faithfully executed.” All other specifications for
the President are vague and undefined.
III. Judicial Branch:
says that there will be a supreme with one chief justice, doesn’t specify the
number of justices, leaves that and the creation of other lower courts to Congress.
Enumerates subject matter jurisdiction. Covers impeachment of justices, salaries,
protections for criminal defendants accused of violating federal law (i.e. the right
to a local jury trial).3
IV. State/Federal and State/State interactions:
how disagreements between states are handled. States are not allowed to
discriminate against members of other states. Full faith and credit to official
records (basically that if you get married in Wisconsin, West Virginia will
recognize that marriage.) Fugitive Slave clause: must return to their state. (Art.
IV.
§ 2. cl. 3) Criminal protections § 2. cl. 2.
V. Amendments:
⅔ approval from both House and Senate for legislature, followed by ratification
from ¾ of the States. This is the weird thing in contrast to the Articles of
Confederation requiring full unanimity for ratification. Marks the deviation from
the original intent of the Constitutional Convention of 1787 which was originally
to amend the Articles. They created a new document and defined the Government
structure instead. (thanks to Madison presenting the Virginia Plan and The
connecticut compromise to fix some of the drawbacks of the the Virginia plan)
VI. Miscellaneous Provisions:
Declares federal law supreme.
VII. Ratification Procedure:
Clarifies the Ratification process.
Supreme Court Decisions to know:

Marbury v. Madison (1803)

2 Caplan, pg. 60.

3 Caplan, pg. 62.
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Tripartite (Three part) form of the decision:

1: Did Marbury have a right to the commission?
→ Yes, upon the signature and seal on the commission. Delivery was not
the deciding factor in the Marbury’s right to the commission.
2: Was the remedy to the violation of that right a Writ of Mandamus?
→ all rights should have remedies under the law, in this case, a writ of
Mandamus would direct Madison to deliver the commission to
Marbury. This is also the proper course of action because the act of
delivering the Writ of Mandamus would be an order for a
ministerial act, therefore, it is not a discretionary (political) matter
and thus proper for the court to command.
3: Can the Supreme Court issue that remedy (issue the Writ of Mandamus)?
→ here is where C. J. Marshall’s decision gets spicy. He creates a conflict
between § 13 of the Judiciary Act of 1787 and Art. III of the U.S. Constitution. The natural
reading (as Dr. Merriam calls it) of § 13 is that it widens the possibilities of what the Supreme
Court can do when it has Original Jurisdiction, namely that the Supreme Court has the authority
to issue a writ of mandamus when it has Original Jurisdiction. To read it that way would offer
zero conflict with Art. III of the Constitution. Additionally, C. J. Marshall could have argued that
because the case was not between an ambassador and the United States, nor an issue in which a
State is of either party (Art. III § 2. cl. 2); and therefore the Supreme Court lacked Original
Jurisdiction in this Case.
INSTEAD C. J. MARSHALL CREATED A CONFLICT BETWEEN § 13 AND
ART. III.
Marshall argues that the language of Art. III when defining when the SC has
Original Jurisdiction is exclusive, and that therefore any legislation contrary to that (such
as legislation that expands it, vis. § 13) would be expanding a government that was
intended to be limited. To expand the powers of the government in such a way that is not
directly provided for in the Constitution--remember this is Marshall’s argument--is to set a
precedent for continual increasing of the powers of government, something that, he argues,
was not intended by the founders. He concludes therefore that § 13 is contrary to the
Constitution and therefore for the Supreme Court to issue a writ of mandamus (which he
argues they must, for that must be the remedy in this case and requires that they have
Original Jurisdiction, which would imply that § 13 expands the Original Jurisdiction of the
SC) would be to do so outside of the Court’s Original Jurisdiction as provided in Art. III.
Therefore the Court cannot uphold § 13 because, he argues, it would be unconstitutional.
I hope that makes sense.
One of the most important things in the decision of Marbury v. Madison was that Marshall’s
decision delegated the power of judicial review particularly to the judicial branch. He used
strong language to relegate that power away from the Executive and Legislative branches and
make it such that the Courts were in charge of Judicial Review. This is clear in the statement
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when he says: it is the power and duty of the courts to “say what the law is.” (Not an exact quote
outside of marks, and idk the page, but it’s easy to find.)
Take the time to work through the process if it's not solid. Just focus on working through it and
you should be fine:) Be patient. It’s weird. It’s not you. You got this;)

Natural Law
Judges sometimes need to exercise judgment based on a system apart from legislation when the
explicit laws are not clear. There they turn to natural law; a law that is just a general
understanding of the function of humankind. (I know that’s a lame summary but i think we all
get it, hopefully.) Essentially, Dr. Merriam explained that as time has gone on, the Supreme
Court has turned toward natural law to make certain decisions. The examples he used were of
him going to normal Americans who think they know what’s in the Constitution and asking them
where in the Constitution there is an amendment about gay marriage or about abortion. What
explained was that the Supreme Court didn’t use explicit written law that appears in the
constitution but rather made judgement based on natural law. Dr. Merriam also explained that it
is the more liberal leaning judges who turn to natural law to make such decisions, because then
they can argue from a standpoint of such things as human dignity. The quotes on the Calder v.
Bull slide put this idea into context rather well.

Fletcher v. Peck (1810)

A suit in which a Georgia law invalidated a land grant that gave people some land at an
outrageously low price. The court overturned the Georgia invalidation and allowed those who
had legally procured that land through that grant to keep it. It was kind of a double negative
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Georgia invalidated the land grant, the Supreme Court invalidated the Georgia legislation which
made the land grant valid again.
Martin v. Hunter’s Lessee (1816)
Cohen’s v. Virginia (1821) national lottery case. Basically established precedent for the Supreme
Court’s authority over state authority, even if it was the State Supreme Court. Affirmed the
conviction of the two guys who engaged in the national lottery in Virginia, which had banned
participation in national lotteries. The precedent this case set is the important aspect.
Scott v. Sandford (1857) (the slide is wrong, the slide says 1957, it was in fact 1857)
You only need to know the background facts of the Dred Scott decision. Namely, be aware of the
different ordinances and what they were doing, as well as the concepts of a master and a slave
going into what would be a free territory and then whether a slave is free because of that and can
return to a slave territory/state and still be free. See the slides for better info. It is the Class 5
slides.

Best of luck!