This would seem to be an easy one for textualists (particularly those who would be
inclined to be sympathetic to congressional efforts to strip the federal courts of
certain classes of cases defined by subject matter).
"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 exclusive jurisdiction of the Supreme Court is limited to a few cases of no
relevance here.
Hence, if Congress were to create a federal court of specialized jurisdiction to
hear all attacks on state violations of the federal constitution, and then provide
that there would be no appeals to the U.S. S.Ct., this would not only be well within
its power, but, as a federalism matter, an unremarkable implementation of the mandate
that "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."
Any attack on this straightforward chain of reasoning would seem to require the most
liberal use of penumbras, emanations, and background assumptions.
Less polemically, as a policy matter, deciding the nature of the caseload of a court
of limited size in a growing country would seem to be a matter appropriately left to
Congressional judgment over time, and to invent new mandatory requirements that only
the Supreme Court hear constitutional attacks on rulings of State Supreme Courts would
create a logistical nightmare with no logical stopping point. After all, since the
Supremacy Clause applies to statutes as well as to the constitution, one could assert
with equal force that once the state courts had ruled that a certain state practice
(whether it be in pollution regulation, or provision of educational aid to handicapped
children, or any other field) did not constitute a federal statutory violation, only
the Supreme Court could declare otherwise. This is just why the constitution sets up
a system in which Congress can provide needed judicial capacity by creating inferior
federal courts. -E.
***************
Prof. Eric M. Freedman
Hofstra University School of Law
Hempstead, N.Y. 11550
Tel. 516-463-5167
Fax 516-463-5129
Home Office: Tel. 212-665-2713
Fax 212-665-2714
[EMAIL PROTECTED]
****************
>>> [EMAIL PROTECTED] 08/16/03 02:15AM >>>
Let's make the Alabama case a more appropriate hypothetical. Suppose
that the Alabama Supreme Court had ruled (rather than Chief Justice
Moore simply asserting) that the monument was not a violation of the
Establishment Clause. Marbury simply holds that it is the province of
the courts to say what the law is, but that applies as much to state
courts as to federal courts. Cooper v. Aaron stands only for the added
proposition that federal courts can so say to state executive officials.
But can a lower federal court tell a state supreme court what the law
is, or is that privilege reserved to the U.S. Supreme Court? I am
mindful, of course, of my own recent argument to the contrary (perhaps)
in the Nevada cases (Angle v. Legislature), but I am very interested in
what others on this list think about the federalism issues here, wholly
apart from the merits of the Establishment Clause claim.
John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional
Jurisprudence
-----Original Message-----
From: Parry, John [mailto:[EMAIL PROTECTED]
Sent: Friday, August 15, 2003 9:23 AM
To: [EMAIL PROTECTED]
Subject: Cooper Redux? (Re: Marshall & Upholding Federal Statutes)
With all of this discussion of the difference between nullifying a
statute and refusing to give effect to it, I wonder how list members
analyze Alabama Chief Justice Moore's announcement that he will not obey
a federal court order requiring removal of a ten commandments monument?
The federal courts have engaged in judicial review (of an essentially
administrative order or regulation, not a statute) but are unable to
"nullify" Judge Moore's conduct on their own. (Anyone expect President
Bush to offer assistance?)
John T. Parry
Associate Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA 15260
412-648-7006
