Remedial Civics?

With the new term of my favorite branch of the federal government starting up on the traditional “First Monday” in October, I started thinking of a few court-related topics I could share, specific cases worth explanation, etc.

Unfortunately, as I test-drove a few ideas through subtle conversation with colleagues at lunch, I realized that some key points seemed to be missing from my co-workers knowledge of, well, government.  This led me to start wondering about what we really teach about government and civics to school kids.  I took a gander at the curriculum break-down and exam percentage for AP Government and Politics, and I was shocked to see how much focuses on the politics vs. the government.  It’s no wonder people feel like only lawyers can understand the court when even an AP course clearly isn’t giving much love to the third branch.  Honestly, I’m not completely convinced they’re really giving the right kind of love to the other two branches either.

I know Sandra Day O’Connor has spoken about the failings of government and civics education across the country, and she helped found to provide resources to address this gap. But how bad is it?  Do people understand the difference between a law and a regulation?  Do people really understand the difference between an appeals court and a trial court?  What a common law system means?  What really happens when a case makes it to the Supreme Court?  Or how cases make it there?  If I say “stare decisis” will they give me a blank look?

I’m more than a little afraid that the answer to most of those questions is pretty negative.  Which leaves me with another question:  am I being overly lawyer-y in my concern that a large portion of the population may not “get” this?


Coffee with Chief Justice John Marshall

Happy First-Monday!  Yes, it’s that time again.  It’s opening day for another season of the Supreme Court.  In honor of that, let’s address the following:

Would we have coffee with Chief Justice John Marshall?

Cammy:  But of course.  Even though I tend to err on a political side away from Marshall (I align more with the likes of Jefferson), there’s still plenty of reasons I’d have coffee with this fellow William and Mary Alum.  Start with the fact that this guy–who I have an irrepressible urge to refer to as “homeboy” for no real reason– gave the Supreme Court teeth.  Seriously, if not for his brilliance in Marbury vs. Madison, even I wouldn’t care that the first Monday in October is the start of the new term of the SCOTUS.  I’d like to hear his take on how the court functions today.  For him to have worked so hard to bring the court  up from the governmental equivalent of the kid eating paste in the back of the room, would he be content with the low-key influence the court exerts now, or would he be ticked that we STILL can’t watch the 9 on C-SPAN?  How about the way some of his big decisions have played into more recent constitutional jurispridence?  I’ve got my heart kind of set on getting his feelings on the way his Gibbons v. Ogden decision plays into the New-Deal-Era travesty Wickard v. Filburn (one of my top-5 least favorite SCOTUS cases ever).  By most accounts, his court was fairly free from bickering, but I have to wonder if this was because he was a little overbearing–I’m pretty sure I could suss this out over coffee.

Kristy:  This is one of those cases Cammy’s always talking about where I kind of feel like I’d be intruding.  I’m not nearly the Supreme Court geek that Cammy is, but there’s plenty I’d still like to hear him talk about.  This guy was there at the beginning, so I’d love to know what he has to say about where we’ve ended up.  But on the other hand, I’d kind of feel like the third wheel while he and Cammy have intelligent conversations about jurisprudence, etc.  So maybe I’ll come, but arrange for Mary to call me half an hour in so I can make an emergency exit if I need to.

How The Supreme Court Got Huevos

24 February 1803.  The United States Supreme Court hands down a decision that turned their branch from the governmental equivalent of a kid in the back of the room eating paste to the all-star-football player/valedictorian.

The case was Marbury v. Madison.  The situation was this:  On the eve of his departure from office, President John Adams rushed through a lot of judiciary appointments, mostly to his buddies in the greater DC metro area (just in case you thought politicians favoring their cronies was something new).  They were all legitimate appointments, but the shear volume made it impossible for all the papers to be delivered in one night.  Some of the appointments didn’t get handed out, but it was assumed since the paperwork was all documented, signed and sealed, the incoming administration of Thomas Jefferson would do the delivering.

But the new staff didn’t deliver those documents.  A gentlemen named Marbury who was to have received one of those appointments, well, he was ticked.  And like anyone in the legal field, he decided to sue (see, suing people isn’t new either).  So, he took his suit against Madison (who, on orders of Jefferson, had not delivered that the appointments) for a writ of mandamus (which, is just a fancy term for a command to do something–in this instance the demand would be to give Marbury his judicial appointment).  Why not go straight to the highest court?  The US Constitution didn’t really allow for this, but the Judicial Act of 1789 did.

So, here sits the Supreme Court with what’s as much a conflict between two political parties as anything (really, there’s nothing new under the moon in Washington).  What to do?

How about nothing?

Well, not nothing really, but sort-of nothing.

In its opinion, the court said that, yes, Marbury had a right to his appointment, and yes by law he could get legal recourse….but–and this is the part that gets people–the court then said, “We can’t give you your legal recourse.”

See, the Judicial Act of 1789 is what Marbury used to justify his going straight to the Supremes for his justice, but where the Judicial Act said, “Yes, the Supreme Court is the Place For You” the CONSTITUTION told another story.  Under the Constitution, the Supreme Court was not the place to go for this type of justice.  And the Supreme Court–Justice Marshall in particular–recognized that the big issue here was nothing at all to do with whether or not Marbury got his piece of paper: it was about whether Congress had the right to pass an Act that changed the jurisdiction of the Court, contradicting the Constitution itself.

It was a stroke of brilliance, by saying that they did not have the right to decide Marbury’s case, they picked up a much bigger gun for their arsenal:  the right to review Congress’s laws in light of the Constitution.  The instant power gratification the Court could have gone for by exercising jurisdiction over this case and issuing a decision to force delivery of the appointment to Madison would ultimately have rendered the Supreme Court a far weaker branch of the government.  Just another court deciding whatever petty little cases that Congress tossed into their jurisdiction.  Instead, they are a powerful branch offering a legitimate amount of power balance to the other two.

It’s one of those instances where giving up a little power resulted in much greater power in the end.