Lesson 5 of 5
The Courts and Judicial Review
The least dangerous branch, Marbury v. Madison, and reading the Constitution as written.
The text
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The Supreme Court shall consist of five Judges, of whom not more than two shall reside in any one of the grand divisions of the State. The Judges shall designate one of their own number who shall preside as Chief Justice. The concurrence of three of the Judges shall in every case be necessary to a decision. The jurisdiction of this Court shall be appellate only, under such restrictions and regulations as may from time to time be prescribed by law; but it may possess such other jurisdiction as is now conferred by law on the present Supreme Court. Said Court shall be held at Knoxville, Nashville and Jackson.
Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article. Every judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the state for five years. His term of service shall be eight years.
(1) A vacancy in any judicial office in any court of record shall be filled by appointment of the governor, from a list of three nominees for the supreme court and any intermediate appellate court, and from a list of two or three nominees for all other courts of record, such list to be certified to him by the supreme court nominating commission for a vacancy in the supreme court or a vacancy in any intermediate appellate court, and by the judicial district nominating commission for a vacancy in any other court in that district. In case of more than one vacancy in any such court, the list shall contain not less than two more nominees than there are vacancies to be filled. The list shall be submitted by the nominating commission not later than thirty days after the death, retirement, tender of resignation, removal under section 23, failure of an incumbent to file a declaration under section 25, or certification of a negative majority vote on the question of retention in office under section 25 hereof. If the governor shall fail to make the appointment (or all of the appointments in case of multiple vacancies) from such list within fifteen days from the day it is submitted to him, the appointment (or the remaining appointments in case of multiple vacancies) shall be made by the chief justice of the supreme court from the same list within the next fifteen days. A justice or judge appointed under the provisions of this section shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election. A nominee shall be under the age of seventy-two years at the time his name is submitted to the governor.
(2) Repealed. (3) Other vacancies occurring in judicial offices shall be filled as now or hereafter provided by law. (4) Vacancies occurring in the office of district attorney shall be filled by appointment of the governor. District attorneys appointed under the provisions of this section shall hold office until the next general election and until their successors elected thereat shall be duly qualified. Such successors shall be elected for the remainder of the unexpired term in which the vacancy was created.
A justice of the supreme court or a judge of any other court of record, who shall desire to retain his judicial office for another term after the expiration of his then term of office shall file with the secretary of state, not more than six months nor less than three months prior to the general election next prior to the expiration of his then term of office, a declaration of his intent to run for another term. Failure to file such a declaration within the time specified shall create a vacancy in that office at the end of his then term of office. Upon the filing of such a declaration, a question shall be placed on the appropriate ballot at such general election, as follows:
"Shall Justice (Judge) . . . . of the Supreme (or other) Court be retained in office? YES/. . . . /NO/. . . . /. " If a majority of those voting on the question vote "Yes", the justice or judge is thereupon elected to a succeeding full term. If a majority of those voting on the question vote "No", this will cause a vacancy to exist in that office at the end of his then present term of office.
In the case of a justice of the supreme court or any intermediate appellate court, the electors of the state at large; in the case of a judge of a district court, the electors of that judicial district; and in the case of a judge of the county court or other court of record, the electors of that county; shall vote on the question of retention in office of the justice or judge.
The judicial power
Article III vests "the judicial Power" in one Supreme Court and the lower courts Congress creates. Judges serve "during good Behaviour" and their pay cannot be cut, so they can rule without fear of the other branches. Article III, Section 2 extends that power to "Cases" and "Controversies," so courts decide real disputes between parties rather than giving advice or making policy.
Judicial review
In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall reasoned that the Constitution is the supreme law (Article VI), that judges swear to support it ("Why otherwise does it direct the judges to take an oath to support it?"), and therefore that a court deciding a case must apply the Constitution over a conflicting statute: "It is emphatically the province and duty of the judicial department to say what the law is."
Hamilton had made the same argument in The Federalist No. 78, and explained why it was safe: the judiciary "will always be the least dangerous to the political rights of the Constitution" because it has "no influence over either the sword or the purse" and "may truly be said to have neither FORCE nor WILL, but merely judgment."
How judges should read the Constitution
The Framers' safeguard works only if judges apply the law as written. Originalism asks what the words meant to the public that ratified them; textualism applies the same discipline to statutes. If the meaning should change, Article V lets the people amend the Constitution, as they have done 27 times. In the originalist view, judges who instead read their own preferences into broad phrases take decisions away from the people and their elected representatives. In 2022 the Court leaned on text, history and tradition rather than judge-made balancing tests in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (Second Amendment); Kennedy v. Bremerton School District, 597 U.S. 507 (Establishment Clause); and Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (abortion).
Courts have also erred badly. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), held that black Americans whose ancestors had been brought to this country as slaves could not be citizens of the United States, and Plessy v. Ferguson, 163 U.S. 537 (1896), upheld "separate but equal." Justice John Marshall Harlan's lone dissent in Plessy answered from the text and principle of the Thirteenth and Fourteenth Amendments: "Our constitution is color-blind, and neither knows nor tolerates classes among citizens." Brown v. Board of Education, 347 U.S. 483 (1954), rejected Plessy in public education: "in the field of public education, the doctrine of 'separate but equal' has no place."
State courts
Tennessee and Colorado courts interpret their own constitutions, and state constitutions can protect liberty more than the federal one does. The Tennessee Supreme Court's five justices (Article VI, Section 2) and the Colorado Supreme Court's seven are chosen differently from federal judges. In Tennessee the governor appoints and the legislature confirms (Article VI, Section 3); in Colorado the governor picks from a list of three nominees certified by the supreme court nominating commission (Article VI, Section 20). In both states the justices then face yes-or-no retention elections (Tennessee Article VI, Section 3; Colorado Article VI, Section 25), so voters have a say when their names appear on the ballot.
Check your understanding
This lesson is educational and is not legal advice. Laws and procedures change; confirm current rules with the official sources linked above.