NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - PUBLIUS: Why is the judicial power difficult to describe in precise terms? We’re here today with Professor Gary Lawson who explains why the very concept of a separate judicial power was novel in the Constitution of the United States. What is the primary job of a judge? What do we mean by the term “judicial review”? GARY LAWSON: Article Three of the constitution takes one of the three categories, boxes, of governmental power, the judicial power, and it vests it in the federal courts, judges who hold tenure during good behavior and have guarantees against diminishment of salary while in office. What is the judicial power? That turns out to be a surprisingly difficult question. If you go to the founding era and you start looking for sources describing what the judicial power is, in crisp, clear terms, you will be sorely disappointed. I know this because I've tried. It's not out there. And once you reflect on it, it becomes clear why you weren't going to find that crisp, clear understanding of judicial power. Until just a few decades before the constitution, the judicial power was not thought of as a separate box of power. It was part of the executive box of power. People who are fans of John Locke will remember that Locke identified three great heads of governmental power, the legislative power, the executive power, his third was not the judicial power, his third was the federative power, essentially power over foreign affairs, right? So as late as the 17th century, judicial power was just considered part of the executive power. The judges were agents of the crown. Not until the middle of the 18th century did people really start thinking of judicial power as something distinctive, but that means that when article three of the constitution is ratified, there isn't a big, long, centuries old tradition of understanding what the judicial power as distinct from the executive power or even as distinct from the legislative power entails. Probably the best that we can glean from those materials is the judicial power involves the determination of disputes within the jurisdiction of the courts in accordance with governing law. Now, there are certain things that are perhaps incidental to that power. If you have the power to decide disputes in accordance with governing law, that carries with it the power to ascertain what the governing law is. It might also carry with it power to prescribe rules of procedure and decorum and proof, to figure out how things are going to be presented as part of that decision process, though there is at least a plausible argument that that's not really incidental to the judicial power. That's really a legislative power. This just shows how difficult drawing those boundaries can be. And people today still argue about what sets of powers might be incidental to the central case deciding power that the courts have. So articulating exactly what the judicial power is, not an easy task. It's easier. Not easy, but easier, to look at legislative power, executive power and give at least a rough outline of what those look like, though drawing the line between them is not easy as well. Figuring out the line between, let's say, executive and judicial power may be the most difficult line that the constitution asks us to draw. The thing to keep in mind is it does ask us to draw that line. The entire structure of the constitution is built around legislative power here, executive power here, judicial power here. It assumes we're going to give it the old college try, and then at least in most cases, we'll be able to come up with something plausible as an answer. PUBLIUS: Can you be more specific in how we define judicial power? How does it operate? GARY LAWSON: Let's take as given that the essence of the judicial power, the core of the judicial power, is the power and responsibility to decide cases within the court's jurisdiction in accordance with governing law. Well, to do that, a court deciding a case has to figure out what the governing law is. It has to ascertain the sources of law, figure out what those sources say. And there are lots of sources of things that can plausibly be called law. Constitution is a plausible source of law. Legislation, plausible source of law. Common law norms, a plausible source of law. Past judicial decisions might be a plausible source of law. Administrative regulations. There are lots of different things that you can look out there, identify, and plausibly attach the label "law" onto. So imagine that you're a court and you're trying to decide a case. You look out at all of these different sources. You gather them up. There's law number one and law number two, law number three, law number four. All these different sources, all of them come claiming to be law. It turns out that they don't all point in the same direction. If they do, if they all point in the same direction, this is gonna be an easy case. What if law one and law two sources say X, and law three and law four sources Y, or non-X? What do you do then? Well, this is a very common kind of occurrence any time there's more than one source that can plausibly claim to be a source of law, and there's an entire body of doctrine, an entire law school course called "Conflict of Laws" and all that that deals with is, what do you do when different sources of law come into conflict? Which one prevails? You could have a situation where the law of Maine conflicts with the law of Nebraska, and the case is being heard by a court in Texas and it has to decide which state's law is going to govern. It could happen when a case is heard in the United States and one of the parties claims it's governed by the law of Norway. Another party claims it's governed by the law of the United States. Well, court has to decide which is the body of law that's going to govern. And sometimes when those sources come into conflict, you have to make a hierarchy. You have to decide which one prevails over another. You've got a statute that says X. You've got an administrative regulation pursuant to that statute, that says Y. Can the administrative regulation beat the statute? Well, your intuitive answer I think is, "No. The statute is higher on the rung of supremacy than the administrative regulation." And that's correct. And one of the things a court in that kind of case would have to decide is, "Okay, I've got the statute. I've got the administrative regulation. They point in different directions. The statute wins." So this conflict of laws idea is quite universal. Now suppose a court gets a case, somebody comes in claiming there's a statute that says that they win. Another side comes in and says, "Well, wait a minute. That statute conflicts with the Constitution of the United States, therefore, court, don't pay attention to what that statute says. It doesn't actually count in this case, not because it isn't law, but because it's been trumped by something that's also law, the Constitution, but that is hierarchically higher and so wins in a conflict." That is the essence of what we call "judicial review." Judicial review is simply a recognition by courts that if there is a conflict between the Constitution and any of the other sources of law: statutes, regulations, common law, whatever they may be, the Constitution is supposed to win that conflict. It's higher up in the hierarchy of values, right? And put that way, the source of the power of judicial review is the grant of the judicial power, so the power to decide cases in accordance with governing law. Well, what's the governing law? You gotta figure out what the governing law is. Part of the process of figuring out the governing law is figuring out which of different sources pointing in different directions trump each other. What's the highest trump? What's the ace of trumps? What's the thing that beats everything else? That happens to be the Constitution. Hence, judicial review. Right? So it's not that mysterious or complicated a thing. You don't need a specific clause in the Constitution that's a judicial review clause, because the grant of the judicial power already includes it. Notice the consequences of judicial review. We often say that when courts prefer the Constitution to statutes, they're striking down the statute. Well, no. We don't, in those cases, take all of our copies of the United States code and rip out the pages that have the statute and burn them. No, the statute stays there. It's just not being given effect in this particular case. It's still law, counts as law, went through the Article 1 Section 7 process. The Constitution defines it as law. Just happens to have been beaten by something else that is also law: the Constitution, that wins out in that conflict. That's the essence and source of judicial review. PUBLIUS: Can you say more about judicial review? When was it first understood as a part of the legitimate judicial power? GARY LAWSON: The idea that what we call judicial review is really just conflict of laws. Courts deciding what the applicable sources of law are, and which one prevail. In the case of conflict it's beautifully illustrated by Marbury vs Madison, decided in 1803. William Marbury gets appointed as a justice of the peace. The incoming president that doesn't like all of John Adams last minutes appointments tries to figure a way to get rid of these people. Well, James Madison, the Secretary of State for the incoming President says "I got this piece of paper saying that Marbury's the Justice of the Peace. I'm just not gonna deliver it to him." Marbury comes into court saying "Order the Secretary of State to hand me my damn piece of paper that says I'm the Justice of the Peace." That's how the case begins. At that point the Supreme Court concludes, probably wrongly but nevermind, that Congress had actually passed a statute saying that the court could hear and decide that kind of case. The court also concludes, probably wrongly but nevermind for now, that the constitution of the United States did not authorize congress to pass that statute. So we have a statute enacted by Congress, signed by the President, that says to the court "Decide this case." And we have a constitutional provision that the court says, instructs it not to decide that case. What to do? That's the question in Marbury vs Madison. And more specifically than that, the question in Marbury vs Madison was not whether there was a conflict of laws problem to resolve. Of course there was. It wasn't even what's the correct resolution. The real question in Marbury vs Madison was whether the Supreme Court, in trying to figure that out, was conclusively bound by the prior determination of congress and the President. After all, by the time this case gets to the Supreme Court, Congress and the President have already decided, at least implicitly, if not explicitly, that the statute they enacted is constitutional. If they thought it was unconstitutional, presumably they wouldn't have enacted it. So the case comes into court with this statute claiming a pedigree from the Congress and the President, judging it to be constitutional. Are the courts bound by that? Can they reconsider that or do they just have to go with what the prior decision maker has already said? That's the question in Marbury vs Madison. And what Marbury vs Madison says, quite understandably, is "You know, thanks Congress, thanks the President. We appreciate your thoughts on this but we kinda have to figure this out on our own. Our job in exercising the judicial power is to ascertain the applicable law and then decide the case in accordance with governing applicable law. And we're going to figure that out and we're grateful for your efforts. We take note of what you said but we have to decide this on our own." So Marbury vs Madison stands for the, I think not startling but not blindingly obvious proposition, that when courts are figuring out the content of governing law, including resolving conflict of laws problems, they have to rely on their own judgment. They're not conclusively bound by the prior determination of political actors like Congress and the President. When you put it that way it seems like a perfectly sensible notion and it is. PUBLIUS: You said that Marbury stands for an obvious proposition. Then why is it considered a controversial or at least a landmark case? Isn’t it used to justify judicial supremacy? GARY LAWSON: The problem with Marbury v Madison the problem is with what people have said wrongly about Marbury v Madison for two centuries now. Marbury v Madison is often presented as meaning that the courts have the final dispositive word on the meaning of the Constitution, so that Congress, and the President and everybody else is conclusively bound to read the Constitution the same way the courts read them That is exactly the opposite of what Marbury v Madison says. The Supreme Court doesn't actually say everybody has to listen to it until 1958. And then of course its a self referential point. We have to listen to it, because it says we have to listen to it, because is says we have to. Marbury says nothing of the kind. Marbury stands for a principle of interpretative equality. The courts are just as good as Congress and the President. They're not bound by what Congress & the President says. Very hard to see why exactly the same reasoning doesn't mean that the President & Congress aren't bound by what the court says. That they have to exercise their own independent judgment in figuring out what the Constitution means. The most you can get out of Marbury v Madison, would be that Congress and the President are bound maybe by specific judgments entered in particular cases. But interpretations of the Constitution? Sauce for the goose, sauce for the gander. If the courts have the independent power, don't have to listen to anybody else, why don't President and Congress have their own power and not have to listen to anybody else? As I said, that's been transmuted primarily in the last 60 years into an understanding of judicial supremacy. And political scientists have studied why it is that Congress and Presidents are actually quite happy to go along with this. It relieves them of a lot of responsibility, they can go to their voters and say "Well it's not our fault. It's those idiots over there, so blame them." So Congress and Presidents are generally quite happy with this tradition and custom of deferring everything to the views of the court. It does not come from Marbury v Madison, and it absolutely does not come from the Constitution of The United States. PUBLIUS: Speaking of the Constitution, only the Supreme Court is mentioned in the Constitution, along with a list of specific issues that federal courts can arbitrate. Can you talk a little about the job of federal courts and their proper jurisdiction? GARY LAWSON: Remember the essential scheme of the Constitution is to define by enumeration, the powers of all of the institutions of the national government. That includes the Federal Courts, defined by Article Three. Part of the definition of the powers of the Federal Courts in Article Three, is a list of the kinds of cases they can here. Federal courts can't just hear any kind of case that anybody wants to bring. Why not? Because Article Three of the Constitution says so. It says, that they have power to hear, jurisdiction over, a specified list of nine kinds of cases. We call those heads of jurisdiction. So for any case to get into a Federal court, it's gotta fit within those nine heads of jurisdiction. That's only half the story. Article Three doesn't actually create Federal courts. The Constitution only creates one Federal court, a Supreme Court that has to have at least one person in it, a Chief Justice. Everything else, it authorizes Congress to create other Federal courts, to create other Justices of the Supreme Court besides the Chief Justice if it wants to. But all of that has to be done by Congress. If Congress doesn't want to create any other Federal courts, well then the state courts will be there to hear whatever cases their own state law permits them to hear. In the course of creating Federal courts if it wants to, Congress can't go beyond the heads of jurisdiction in Article Three. It can't authorize them to hear cases that the Constitution doesn't recognize as within their power. But it can authorize them to hear fewer, some subsets, some portion of the cases that in theory could be brought within the Federal courts. That's how Congress controls the jurisdiction of the lower Federal courts. When it creates them, it defines also what kinds of cases it can hear. The much more interesting and different question, and I'm not going to go into it here, for reasons that I'll explain in a moment. Is whether Congress has control over the kinds of cases that the Supreme Court can hear. To explain why that is a problem, and why I'm not going to get into it, we would have to parse very carefully the language of Article Three of the Constitution which defines certain classes of cases that can be brought initially through the Supreme Court without going through any other tribunal. And certain cases where the Supreme Court can hear an appeal from some other tribunal. Along with a clause in the Constitution that talks about exceptions to that appellate jurisdiction that Congress may make if it wishes. This is something that scholars of Federal jurisdiction, Federal courts have argued about for decades. I have my own, I will put this delicately, idiosyncratic views on that question and I'm not going to inflict them on you. I'm going to refer you to your Federal jurisdiction, or Federal courts class, for that one. With a warning, that it's going to be a mess. PUBLIUS: The Supreme Court, for obvious reasons, is the more visible federal court. People watch it closely for decisions on important policy issues. Do the majority of SCOTUS cases fall into that category? Does the Court choose those deliberately? GARY LAWSON: Every few years the Supreme Court decides some case that makes the headlines in every newspaper in the country. Where it interjects itself into some hot button topic of social import whether its abortion, gay marriage, affirmative action, whatever it may be. In between those every three or four years, it decides hundreds of cases that don't get reported anywhere except the specialized legal press. Those hundreds of other cases are the centerpieces of the actual work product of the court. They're cases involving the interpretation of statutes. Things involving administrative agencies. Questions of Constitution law that don't make the headlines but involve things like the scope of the Fourth Amendment or the Sixth Amendment that affect the rights of small, but non trivial number of let's say, criminal defendants. So the vast bulk of the Supreme Court's work product, much less the work product of the lower Federal courts, can fairly be characterized as dull. Some of it has policy veilance that is, people with strong political views would look at those cases and line up on one side or another. Mostly just by thinking about who the parties to the case are rather than by thinking about the actual issues. But in terms of what a normal person would think of as a political hot, but a vast majority of their work product has nothing at all to do with that. So it's always important to keep perspective, answer, very little, of the Supreme Court's work product has that kind of policy impact. But of course, those few cases are the one's that make headlines. How have they gotten themselves in that business? Well, courts can't make up cases that they want to hear. There are legal systems where courts have a roving power where courts can go around looking for problems and then announce their resolution of those problems. Even, when no one brings them to their attention. The Anglo American tradition doesn't work that way. Courts are reactive institutions. They hear the cases that come before them. They can't go out and find a case if no one chooses to bring it. Having said that, if there's an issue that a court really, really, really, wants to hear, it can probably find the case out there that raises it. That is particularly true of the Supreme Court which gets to choose which cases it hears. Wasn't always true by the way. The Supreme Court did not always have complete freedom about what cases it heard. That's a relatively recent development. But it does. So, if it really wants to stick it's nose into something it can find a case in which to do it. But just keep in mind that, that's something that's a relatively, relatively, as these things go, unusual event. Doesn't mean it doesn't have an impact when it happens. Doesn't mean you can't rail about it one way or the other but try to keep perspective of how much of what it does actually has that kind of content. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! - Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - Why is the judicial power difficult to describe in precise terms? We’re here today with Professor Gary Lawson who explains why the very concept of a separate judicial power was novel in the Constitution of the United States. What is the primary job of a judge? What do we mean by the term “judicial review”? Article Three of the constitution takes one of the three categories, boxes, of governmental power, the judicial power, and it vests it in the federal courts, judges who hold tenure during good behavior and have guarantees against diminishment of salary while in office. What is the judicial power? That turns out to be a surprisingly difficult question. If you go to the founding era and you start looking for sources describing what the judicial power is, in crisp, clear terms, you will be sorely disappointed. I know this because I've tried. It's not out there. And once you reflect on it, it becomes clear why you weren't going to find that crisp, clear understanding of judicial power. Until just a few decades before the constitution, the judicial power was not thought of as a separate box of power. It was part of the executive box of power. People who are fans of John Locke will remember that Locke identified three great heads of governmental power, the legislative power, the executive power, his third was not the judicial power, his third was the federative power, essentially power over foreign affairs, right? So as late as the 17th century, judicial power was just considered part of the executive power. The judges were agents of the crown. Not until the middle of the 18th century did people really start thinking of judicial power as something distinctive, but that means that when article three of the constitution is ratified, there isn't a big, long, centuries old tradition of understanding what the judicial power as distinct from the executive power or even as distinct from the legislative power entails. Probably the best that we can glean from those materials is the judicial power involves the determination of disputes within the jurisdiction of the courts in accordance with governing law. Now, there are certain things that are perhaps incidental to that power. If you have the power to decide disputes in accordance with governing law, that carries with it the power to ascertain what the governing law is. It might also carry with it power to prescribe rules of procedure and decorum and proof, to figure out how things are going to be presented as part of that decision process, though there is at least a plausible argument that that's not really incidental to the judicial power. That's really a legislative power. This just shows how difficult drawing those boundaries can be. And people today still argue about what sets of powers might be incidental to the central case deciding power that the courts have. So articulating exactly what the judicial power is, not an easy task. It's easier. Not easy, but easier, to look at legislative power, executive power and give at least a rough outline of what those look like, though drawing the line between them is not easy as well. Figuring out the line between, let's say, executive and judicial power may be the most difficult line that the constitution asks us to draw. The thing to keep in mind is it does ask us to draw that line. The entire structure of the constitution is built around legislative power here, executive power here, judicial power here. It assumes we're going to give it the old college try, and then at least in most cases, we'll be able to come up with something plausible as an answer. Can you be more specific in how we define judicial power? How does it operate? Let's take as given that the essence of the judicial power, the core of the judicial power, is the power and responsibility to decide cases within the court's jurisdiction in accordance with governing law. Well, to do that, a court deciding a case has to figure out what the governing law is. It has to ascertain the sources of law, figure out what those sources say. And there are lots of sources of things that can plausibly be called law. Constitution is a plausible source of law. Legislation, plausible source of law. Common law norms, a plausible source of law. Past judicial decisions might be a plausible source of law. Administrative regulations. There are lots of different things that you can look out there, identify, and plausibly attach the label "law" onto. So imagine that you're a court and you're trying to decide a case. You look out at all of these different sources. You gather them up. There's law number one and law number two, law number three, law number four. All these different sources, all of them come claiming to be law. It turns out that they don't all point in the same direction. If they do, if they all point in the same direction, this is gonna be an easy case. What if law one and law two sources say X, and law three and law four sources Y, or non-X? What do you do then? Well, this is a very common kind of occurrence any time there's more than one source that can plausibly claim to be a source of law, and there's an entire body of doctrine, an entire law school course called "Conflict of Laws" and all that that deals with is, what do you do when different sources of law come into conflict? Which one prevails? You could have a situation where the law of Maine conflicts with the law of Nebraska, and the case is being heard by a court in Texas and it has to decide which state's law is going to govern. It could happen when a case is heard in the United States and one of the parties claims it's governed by the law of Norway. Another party claims it's governed by the law of the United States. Well, court has to decide which is the body of law that's going to govern. And sometimes when those sources come into conflict, you have to make a hierarchy. You have to decide which one prevails over another. You've got a statute that says X. You've got an administrative regulation pursuant to that statute, that says Y. Can the administrative regulation beat the statute? Well, your intuitive answer I think is, "No. The statute is higher on the rung of supremacy than the administrative regulation." And that's correct. And one of the things a court in that kind of case would have to decide is, "Okay, I've got the statute. I've got the administrative regulation. They point in different directions. The statute wins." So this conflict of laws idea is quite universal. Now suppose a court gets a case, somebody comes in claiming there's a statute that says that they win. Another side comes in and says, "Well, wait a minute. That statute conflicts with the Constitution of the United States, therefore, court, don't pay attention to what that statute says. It doesn't actually count in this case, not because it isn't law, but because it's been trumped by something that's also law, the Constitution, but that is hierarchically higher and so wins in a conflict." That is the essence of what we call "judicial review." Judicial review is simply a recognition by courts that if there is a conflict between the Constitution and any of the other sources of law: statutes, regulations, common law, whatever they may be, the Constitution is supposed to win that conflict. It's higher up in the hierarchy of values, right? And put that way, the source of the power of judicial review is the grant of the judicial power, so the power to decide cases in accordance with governing law. Well, what's the governing law? You gotta figure out what the governing law is. Part of the process of figuring out the governing law is figuring out which of different sources pointing in different directions trump each other. What's the highest trump? What's the ace of trumps? What's the thing that beats everything else? That happens to be the Constitution. Hence, judicial review. Right? So it's not that mysterious or complicated a thing. You don't need a specific clause in the Constitution that's a judicial review clause, because the grant of the judicial power already includes it. Notice the consequences of judicial review. We often say that when courts prefer the Constitution to statutes, they're striking down the statute. Well, no. We don't, in those cases, take all of our copies of the United States code and rip out the pages that have the statute and burn them. No, the statute stays there. It's just not being given effect in this particular case. It's still law, counts as law, went through the Article 1 Section 7 process. The Constitution defines it as law. Just happens to have been beaten by something else that is also law: the Constitution, that wins out in that conflict. That's the essence and source of judicial review. Can you say more about judicial review? When was it first understood as a part of the legitimate judicial power? The idea that what we call judicial review is really just conflict of laws. Courts deciding what the applicable sources of law are, and which one prevail. In the case of conflict it's beautifully illustrated by Marbury vs Madison, decided in 1803. William Marbury gets appointed as a justice of the peace. The incoming president that doesn't like all of John Adams last minutes appointments tries to figure a way to get rid of these people. Well, James Madison, the Secretary of State for the incoming President says "I got this piece of paper saying that Marbury's the Justice of the Peace. I'm just not gonna deliver it to him." Marbury comes into court saying "Order the Secretary of State to hand me my damn piece of paper that says I'm the Justice of the Peace." That's how the case begins. At that point the Supreme Court concludes, probably wrongly but nevermind, that Congress had actually passed a statute saying that the court could hear and decide that kind of case. The court also concludes, probably wrongly but nevermind for now, that the constitution of the United States did not authorize congress to pass that statute. So we have a statute enacted by Congress, signed by the President, that says to the court "Decide this case." And we have a constitutional provision that the court says, instructs it not to decide that case. What to do? That's the question in Marbury vs Madison. And more specifically than that, the question in Marbury vs Madison was not whether there was a conflict of laws problem to resolve. Of course there was. It wasn't even what's the correct resolution. The real question in Marbury vs Madison was whether the Supreme Court, in trying to figure that out, was conclusively bound by the prior determination of congress and the President. After all, by the time this case gets to the Supreme Court, Congress and the President have already decided, at least implicitly, if not explicitly, that the statute they enacted is constitutional. If they thought it was unconstitutional, presumably they wouldn't have enacted it. So the case comes into court with this statute claiming a pedigree from the Congress and the President, judging it to be constitutional. Are the courts bound by that? Can they reconsider that or do they just have to go with what the prior decision maker has already said? That's the question in Marbury vs Madison. And what Marbury vs Madison says, quite understandably, is "You know, thanks Congress, thanks the President. We appreciate your thoughts on this but we kinda have to figure this out on our own. Our job in exercising the judicial power is to ascertain the applicable law and then decide the case in accordance with governing applicable law. And we're going to figure that out and we're grateful for your efforts. We take note of what you said but we have to decide this on our own." So Marbury vs Madison stands for the, I think not startling but not blindingly obvious proposition, that when courts are figuring out the content of governing law, including resolving conflict of laws problems, they have to rely on their own judgment. They're not conclusively bound by the prior determination of political actors like Congress and the President. When you put it that way it seems like a perfectly sensible notion and it is. You said that Marbury stands for an obvious proposition. Then why is it considered a controversial or at least a landmark case? Isn’t it used to justify judicial supremacy? The problem with Marbury v Madison the problem is with what people have said wrongly about Marbury v Madison for two centuries now. Marbury v Madison is often presented as meaning that the courts have the final dispositive word on the meaning of the Constitution, so that Congress, and the President and everybody else is conclusively bound to read the Constitution the same way the courts read them That is exactly the opposite of what Marbury v Madison says. The Supreme Court doesn't actually say everybody has to listen to it until 1958. And then of course its a self referential point. We have to listen to it, because it says we have to listen to it, because is says we have to. Marbury says nothing of the kind. Marbury stands for a principle of interpretative equality. The courts are just as good as Congress and the President. They're not bound by what Congress & the President says. Very hard to see why exactly the same reasoning doesn't mean that the President & Congress aren't bound by what the court says. That they have to exercise their own independent judgment in figuring out what the Constitution means. The most you can get out of Marbury v Madison, would be that Congress and the President are bound maybe by specific judgments entered in particular cases. But interpretations of the Constitution? Sauce for the goose, sauce for the gander. If the courts have the independent power, don't have to listen to anybody else, why don't President and Congress have their own power and not have to listen to anybody else? As I said, that's been transmuted primarily in the last 60 years into an understanding of judicial supremacy. And political scientists have studied why it is that Congress and Presidents are actually quite happy to go along with this. It relieves them of a lot of responsibility, they can go to their voters and say "Well it's not our fault. It's those idiots over there, so blame them." So Congress and Presidents are generally quite happy with this tradition and custom of deferring everything to the views of the court. It does not come from Marbury v Madison, and it absolutely does not come from the Constitution of The United States. Speaking of the Constitution, only the Supreme Court is mentioned in the Constitution, along with a list of specific issues that federal courts can arbitrate. Can you talk a little about the job of federal courts and their proper jurisdiction? Remember the essential scheme of the Constitution is to define by enumeration, the powers of all of the institutions of the national government. That includes the Federal Courts, defined by Article Three. Part of the definition of the powers of the Federal Courts in Article Three, is a list of the kinds of cases they can here. Federal courts can't just hear any kind of case that anybody wants to bring. Why not? Because Article Three of the Constitution says so. It says, that they have power to hear, jurisdiction over, a specified list of nine kinds of cases. We call those heads of jurisdiction. So for any case to get into a Federal court, it's gotta fit within those nine heads of jurisdiction. That's only half the story. Article Three doesn't actually create Federal courts. The Constitution only creates one Federal court, a Supreme Court that has to have at least one person in it, a Chief Justice. Everything else, it authorizes Congress to create other Federal courts, to create other Justices of the Supreme Court besides the Chief Justice if it wants to. But all of that has to be done by Congress. If Congress doesn't want to create any other Federal courts, well then the state courts will be there to hear whatever cases their own state law permits them to hear. In the course of creating Federal courts if it wants to, Congress can't go beyond the heads of jurisdiction in Article Three. It can't authorize them to hear cases that the Constitution doesn't recognize as within their power. But it can authorize them to hear fewer, some subsets, some portion of the cases that in theory could be brought within the Federal courts. That's how Congress controls the jurisdiction of the lower Federal courts. When it creates them, it defines also what kinds of cases it can hear. The much more interesting and different question, and I'm not going to go into it here, for reasons that I'll explain in a moment. Is whether Congress has control over the kinds of cases that the Supreme Court can hear. To explain why that is a problem, and why I'm not going to get into it, we would have to parse very carefully the language of Article Three of the Constitution which defines certain classes of cases that can be brought initially through the Supreme Court without going through any other tribunal. And certain cases where the Supreme Court can hear an appeal from some other tribunal. Along with a clause in the Constitution that talks about exceptions to that appellate jurisdiction that Congress may make if it wishes. This is something that scholars of Federal jurisdiction, Federal courts have argued about for decades. I have my own, I will put this delicately, idiosyncratic views on that question and I'm not going to inflict them on you. I'm going to refer you to your Federal jurisdiction, or Federal courts class, for that one. With a warning, that it's going to be a mess. The Supreme Court, for obvious reasons, is the more visible federal court. People watch it closely for decisions on important policy issues. Do the majority of SCOTUS cases fall into that category? Does the Court choose those deliberately? Every few years the Supreme Court decides some case that makes the headlines in every newspaper in the country. Where it interjects itself into some hot button topic of social import whether its abortion, gay marriage, affirmative action, whatever it may be. In between those every three or four years, it decides hundreds of cases that don't get reported anywhere except the specialized legal press. Those hundreds of other cases are the centerpieces of the actual work product of the court. They're cases involving the interpretation of statutes. Things involving administrative agencies. Questions of Constitution law that don't make the headlines but involve things like the scope of the Fourth Amendment or the Sixth Amendment that affect the rights of small, but non trivial number of let's say, criminal defendants. So the vast bulk of the Supreme Court's work product, much less the work product of the lower Federal courts, can fairly be characterized as dull. Some of it has policy veilance that is, people with strong political views would look at those cases and line up on one side or another. Mostly just by thinking about who the parties to the case are rather than by thinking about the actual issues. But in terms of what a normal person would think of as a political hot, but a vast majority of their work product has nothing at all to do with that. So it's always important to keep perspective, answer, very little, of the Supreme Court's work product has that kind of policy impact. But of course, those few cases are the one's that make headlines. How have they gotten themselves in that business? Well, courts can't make up cases that they want to hear. There are legal systems where courts have a roving power where courts can go around looking for problems and then announce their resolution of those problems. Even, when no one brings them to their attention. The Anglo American tradition doesn't work that way. Courts are reactive institutions. They hear the cases that come before them. They can't go out and find a case if no one chooses to bring it. Having said that, if there's an issue that a court really, really, really, wants to hear, it can probably find the case out there that raises it. That is particularly true of the Supreme Court which gets to choose which cases it hears. Wasn't always true by the way. The Supreme Court did not always have complete freedom about what cases it heard. That's a relatively recent development. But it does. So, if it really wants to stick it's nose into something it can find a case in which to do it. But just keep in mind that, that's something that's a relatively, relatively, as these things go, unusual event. Doesn't mean it doesn't have an impact when it happens. Doesn't mean you can't rail about it one way or the other but try to keep perspective of how much of what it does actually has that kind of content. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!