Judicial Supremacy

Question 1

How is judicial interpretation different from exec/leg?

Answer 1

only judges have an office (duty) to exercise judgment in accord w/ land of land.

Question 2

Judicial understanding of the law should be more ___ than exec/leg

Answer 2

moral/legal authoritative

Question 3

Locke says when people cannot find an indifferent judge on earth, they will ____

Answer 3

make an appeal to heaven (i.e., revolution)

Question 4

According to Locke, For society to work, there must be ___ system of unbiased adjudicators.

Answer 4

public confidence in

Question 5

According to Locke, judges should simply follow __

Answer 5

the law wherever it leads

Question 6

What is old common law view of precedent?

Answer 6

evidentiary, when law not clear turn to line of precedent as authoritative

Question 7

What was 20th century view of precedent?

Answer 7

binding, like a court order

Question 8

Problem with 20th century view of precedent

Answer 8

errors compound over time

Question 9

What is first value of precedent?

Answer 9

establish credability, certainty and predicatability

Question 10

What is second value of precedent?

Answer 10

hierarchy of courts, trust in judicial system/reputation of the Court

Question 11

Everyone has to interpret the law, but only judges ___, so their interpretation is more authoritative than that of others

Answer 11

have office of judgment

Question 12

What is problem of precedent value in trust in system/reputation?

Answer 12

Perquimans County, risks deferring to majority opinion over minority rights

Question 13

According to Frankfurter in Youngstown, precedent may come from ___

Answer 13

practice, historical gloss on Executive power

Question 14

Why not want precedent binding?

Answer 14

we substantively disagree with the law

Question 15

Why want binding precedent?

Answer 15

Hierarchy of courts won’t work unless there’s close deference to higher courts

Question 16

Four options if lower court and higher court precedent clearly wrong

Answer 16

1) follow anyways 2) construe narrowly and distinguish case 3) follow it but note wrong 4) refuse to apply it unless overturned (force higher court to reevaluate)

Question 17

What approach to wrong precedent does Hamburger endorse?

Answer 17

duty to follow it but also duty to criticize

Question 18

Duty of a court to follow its own precedent is ___ and they maybe __

Answer 18

much weaker, have a duty to correct itself

Question 19

Dred Scott holding

Answer 19

Congress was constitutionally forbidden from banning slavery in federal territories

Question 20

Lincoln argued that we should not try to ___ Dred Scott but instead ___

Answer 20

resist the ruling, seek to have it overturned

Question 21

Lincoln also argued Dred Scott paved the way for ___

Answer 21

decision banning states from banning slavery in their borders

Question 22

What ideology does Lincoln argument in debate subscribe to?

Answer 22

Departmentalism

Question 23

Departmentalism means each of the three departments of government can___

Answer 23

independently interpret and enforce Constitution as it applies to its own distinct functions

Question 24

Douglas said irregardless of merits, that Dred Scott is from ___ so it is ___

Answer 24

highest judicial tribunal on Earth established by Constitution, law of the land binding on every citizen

Question 25

Douglas subscribes to ideology of __

Answer 25

judicial supremacy

Question 26

Douglas argues that Lincoln is undermining ___ so that people will __

Answer 26

undermine public confidence in the court, not respect its decisions (mob)

Question 27

Judicial supremacy: “The position that all other government officials (or perhaps all citizens) must __________.”

Answer 27

treat judicial opinions about the Constitution as if they were the Constitution itself.”

Question 28

Cooper v. Aaron Facts

Answer 28

Arkansas claim not to be bound by Brown, seeking postponement of integration

Question 29

Cooper Holding

Answer 29

(extreme) judicial supremacy - the Court’s constitutional rulings have the binding force of the Constitution, and the governor & legislature are bound by it

Question 30

Cooper is the Sole example in Supreme Court opinions in which Court says

Answer 30

its interpretations are supreme

Question 31

There is ___ to accept Cooper as correct

Answer 31

great hesitancy

Question 32

Problem 1 with Cooper

Answer 32

does that mean they could not overturn their own precedent later?

Question 33

Problem 2 with Cooper

Answer 33

supreme interpretation ≠ supreme law of land

Question 34

What does Hamburger think Cooper court should have said?

Answer 34

we’re final interpreters and our interpretation prevails

Question 35

Which side of Lincoln-Douglas is Cooper?

Answer 35

Douglas

Question 36

Hamburger: Distinction between law and interpretation of the law – law is more than ____, there are ___

Answer 36

dicta of the court, principles that are independent of what any judge says

Question 37

Hamburger says that the Cooper court declares itself a __

Answer 37

constitution-maker

Question 38

Cooper reasoning 1

Answer 38

Article VI- Constitution supreme law of the land

Question 39

Cooper reasoning 2

Answer 39

Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution,

Question 40

Cooper reasoning 3

Answer 40

It follows that the interpretation in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States