Constitutional Origins of the Federal Judiciary (original) (raw)

Toward a Revisionist History of the Supreme Court

Cleveland State Law Review, 1988

I. INTRODUCTION T he bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. 1 At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. 2 It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the Supreme Court. It is extremely abstract, eliminates a lot of detail and

Reforming Federal Judiciary in the USA

Cleveland-Marshall College of Law , 2021

This paper examines the need for potential reforms within the federal judiciary of the United States. It explores arguments for and against changes to the current system, focusing on areas such as the structure of the Supreme Court, the selection and accountability of judges, and ensuring access to justice for all. The paper analyzes the potential impact of various reform proposals and aims to contribute to a productive discussion about strengthening the federal judiciary in the USA.

Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court

2013

It is a widely acknowledged reality that the Supreme Court today faces a crisis in the form of a severely over-burdened docket. This paper argues that, while the existence of the problem is well known, its genesis, underlying causes and broader impact are significantly misunderstood. It is in that sense that the crisis remains an unseen one. A core claim of the paper is that the burden on the Court is neither a historical inevitability nor primarily a resource-centric problem. Rather, it is the product of conscious choices made over a period of time by judges of the Court, choices which were shaped and constrained in significant ways by other important factors, but which nonetheless remained conscious choices. This trend is deeply troubling for many reasons, and calls for an urgent exploration of possible models for reform.

The People's Court: On the Intellectual Origins of American Judicial Power

Social Science Research Network, 2020

This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp. This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we must expand the traditional conception of the "separation of powers" to include not just distinct institutional functions, but also the structured division of the sovereign pre

The Roots of American Judicial Federalism

This paper demonstrates that the Founders' constitutional design contemplated tort law and most other areas of civil justice remaining within the exclusive province of the states. Widespread congressional intrusion into that area, as contemplated by some federal tort reform measures, is thereby found to violate the constitutional system of federalism.

The Role of the Us Supreme Court in the Legal System

Journal of actual problems of jurisprudence, 2019

The purpose of the article on the topic of judicial law-making in the USA, which attempts to invade the educational process and intensify the study of the History of State and Law of Foreign Countries, is devoted to the US Supreme Court-the founder of constitutional justice and one of the pillars in the system of separation of powers. This is a unique judicial institution with an exceptional degree of influence, about which America's famous political writer Alexis do Tocqueville stated that "never before have any people had such a powerful judicial authority". For the reader, the phenomenon of the US Supreme Court is interesting in several ways. First, from the point of view of the evolution of American law and the judicial system in all its dynamics and contradictions. Secondly, in terms of implementation of judicial activity, complex thought processes of finding the right precedents and arguments in a particular case, reaching (if possible) a compromise between judges and colleagues. Judge activity should be interpreted not only as based on law, but also subject to ideological and political influences. Objective: to identify the features of the law-making activities of the US Supreme Court, since judicial law-making in science remains an unsolved problem. Finally, it is very important to look at the US Supreme Court in the eyes of American history as an institution that has the potential to come into conflict with both the legislature and the executive branch. On the other hand, it is important to understand the logic of filling vacancies in the Supreme Court by the executive branch. In the course of continuing in this country, the search for the causes of negative political and legal phenomena, attention is drawn to the interpretation of the federal Constitution by the US Supreme Court, in general, to the activities of this court, which performs the law-making function, is alien to it and is constitutionally unfounded. However, many issues remain insufficiently studied, among them the role of the US Supreme Court in constitutional lawmaking, the very phenomenon of judicial lawmaking.

American Constitutional Law and History

2012

Preface xv Articles of Confederation xvii The Constitution of the United States xxiii Timeline of Events in American Legal and Political History xxxvii Biographies of Selected Justices of the Supreme Court li Chapter One • The Constitution and Judicial Power 3 A. Background to the Creation of the Constitution 3 B. Judicial Review 6 1. Review of Federal Action 6 A Timeline of Events Leading to Marbury v. Madison 7 Marbury v. Madison 9 2. Judicial Review of State Actions Martin v. Hunter's Lessee C. Modes of Constitutional Interpretation 1. Historical Background Cohens v. Virginia Calder v. Bull 2. Sources of Constitutional Interpretation a. Text b. History c. Structure d. Precedent e. Consensus f. Purposes 3. The Modern Court and Constitutional Interpretation District of Columbia v. Heller D. The Limits of the Judicial Power 1. Justiciability a. Standing