Welcome back. In our last couple lectures, we talked about one of the most iconic courts in American history, the, the Warren court. Which sat in the mid 50s and through out the 1960s. Today we are going to talk and in our next lecture, we are going to talk about the role of the judiciary more generally because, of course, when lot of people think about the Constitution they think about The court, the case line. Not just the war in court, but courts generally. And the Constitution says a little bit about courts, the written Constitution. It talks about the judicial power of the United States, but it doesn't give us a full account of all the different components of that judicial power and what judicial power is really all about. To some extent, if these unspecified, unwritten, if you will, all the components of judicial power, so we're going to talk in today's lecture and the next one about the components of judicial power. and, in particular, we're going to end with a discussion about how to think about judicial precedent. What happens when the precedent seems to say x, but the written Constitution seems to say y? Which should trump, and why? What does the written Constitution say about precedent? What does precedent say about the written Constitution, and that's what we're, we're going to end with. We're going to try to bring these two into some harmony some alignment in the spirit of, of these lectures, which is to try to have an account of the unwritten Constitution and, and precedent is part of that unwritten Constition. It exists outside the terse text of the written Constitution. How to bring that body of precedent into that aspect of the unwritten Constitution into some proper alignment with the written Constitution. How to have an unwritten Constitution that adheres with that fits with, that serves rather than subverts the written Constitution. So, and I'm going to tell you at the end about these two interesting characters. Do you recognize either one? They're, they're maybe not, household names or or icons, but at the end of our next lecture, I'll tell you a little bit about these two. So, one of the most interesting aspects of the Constitution is that it features multiple references to itself, and sentences that refer to themselves can often be very interesting sometimes paradoxical, the sentence, you know, you know, this sentence is a lie. [INAUDIBLE] if it were a lie, it would be true, but if it were true, it would be a lie. So, self-referential sentences are very interesting, the Constitution refers to itself in a whole bunch of ways. The Preamble talks about this Constitution being ordained and established. This constitution, it's referring to itself. And that's why we've talked about, for example, how to take seriously the active ordainment to self and what we could deduce from it. Other provisions of the Constitution talk about how all the amendments are parts of the Constitution and that, and parts of a larger whole, parts of this Constitution, valid as parts of this constitution. And, and we've talked about how that means that we should have to read the Constitution holistically and, and and in Article Three, the Constitution also refers to itself in connection with the judiciary. And in Article Six, it refers to judges in connection with this Constitution. The Constitution is Supreme law and judges are supposed to enforce that Supreme law and take oaths of office to it. And Article Three says the judicial power of the United States shall extend to all cases arising under this constitution. So there's some linkages between the judicial power and this Constitution. So, let's, let's talk about a couple of those linkages, and in particular, let's focus on this idea of judicial power which it, the Constitution itself is basically setting up a judiciary and giving it a certain role not fully specifying all the components of that role, to some extent leaving them unwritten. I want to suggest that there are at least five different components of judicial power. And today I'll give you the five components and I'll apply those five components to some of the case studies, the war in court case studies that we briefly discussed in our previous lectures. And then in the next lecture, I'll talk more about one specific component, the component of precedent. So, judicial power. Well, one aspect of judicial power is simply the power to interpret the Constitution, to say what the law means. This is even implicit in the, the word's jurisdiction, that Article Three talks about jurisdiction of courts. And what is jurisdiction? Etymologically it's two words. Juris law. Juris doctors. There are doctors of law JDs. And diction speaking. So jurisdiction is a speaking of the law. And John Marshall phrased the power to say what the law is. And that is just a pure interpretive power. Now, a second and distinct idea is not merely the power to interpret the words but to implement them. To make them real in the world. To go beyond the text of the Constitution and to make it work in court. So we, we've got a case. Smith against Jones. And it's about two parties, and they're haggling over a piece of property, but wherein courts are going to need to come up with judicial tests for, doctrine. It's what we call them, formula's for who has the burden of proving what, and what's, what's the three prong test for implementing this provision of the Constitution? And what evidence would count in favor of certain propositions? And what is the rule that lower courts, and lawyers should sort of understand growing out of this area of law? So not just the power to interpret. Second component, the power to implement to make the Constitution work as in court law, as justiciable law. A third idea of judicial power is the the power to decide the case. Smith against Jones, well does Smith win, or Jones win? Sent to a issue of binding judgment. And even if other people think the court is wrong, they don't go beyond the judgment. The judgment of the case settles the issue definitively between the parties. If the court rules for Smith, Smith wins even if you think that Smith got a raw deal, you're a President or, or some other government actor, it's not that the court decided it, it is Res judicata. Res is R-E-S. It means, a thing. Judicata, adjudicated. An adjudicated thing. A done deal. Res judicata is the power to decide definitively the judicial case as between the parties. It, too, is a component of judicial power. The power to interpret, power to implement, power to issue a binding judgment, binding on the parties. The judgement power one scholar has refereed to it as Res judicata. Relatedly a court in the course of ruling, they give reasons. And those reasons can be appealed to by later courts. Those reasons have certain precedential weight. This is sometimes called by judges Stare decisis. It's about standing by a previous decison. Letting an eariler logic stand in in subsequent cases. So the question that, and this is much less absolute than Res judicata. The power to lay down a precedent of a certain weight but the question is, how much weight, and what kind of weight, and what would outweigh a precedent? The logic of a precedent when it’s decided when it comes to a later case, not involving Smith versus Jones but involving White versus Green. so, power to interpret, the power to implement. The power to decide the case in a, in a judgement, Res judicata, to lay down precedent of a certain weight. Finally, the power to remedy a violation of rights. Sometimes the Constitution, often the Constitution will say you may not do this, but it doesn't say what happens if government does do what its not supposed to do. John Marshall, building on Blackstone, basically said it's a, you know, ours is a system of, a rule of law, and the rule of law means that of every right there should be a remedy. And Blackstone had said this as well, and for him, it was like obvious, in the first principle in the same way, that it was obvious to him that a person couldn't be a judge in his own case. These are basic albeit, unwritten principles that that framed the entire Constitutional project. We, we encountered earlier, Blackstone saying judges, peo, persons can't be judges in their own case. Now, we're talking about another Blackstonian precept that John Marshall in a case called Marbury versus Madison, featured front and center, that for every right, there should be a legal remedy in a court. That the power of, the judicial power, encompasses not merely the power to say what the law is, but to remedy violations of law. So now, let's take those five components and apply them to a couple of a few of the case studies that we, we just canvassed involving the Warren court. The power, remember, these components of interpretation and implementation and Res judicata and Stare decisis and remediation. So let's take Brown versus Board of Education. As a case about the meaning of the Constitution, you might think Brown is just crystal clear. The Constitution says equal, segregation wasn't really. in fact. equal. Equal means equal, there's no textual exceptions saying equal means equal except when it comes to segregation, or except when it comes to schools or whatever, or buses. Equal means equal, this ain't equal, next case, pure interpretation. Okay, so far that's um; uh; um; good, but here's where Brown, Brown said two other things. It said that um; it implied in the field of education. And so it said, equality, equality, equality, but it also said education, education, education, and apparently didn't, it, we did that Brown over-ruled Plessy, it actually didn't say so. It said, Plessy was a transportation case; this is a case involving education. We hold that in the field of education. Separate but equal has no place, so what's up with that? If equal means equal, why did they somehow say in the field of education? And why did they say separate is inherently unequal? because, I mean, the word separate doesn't mean unequal, and it's not logically and obviously unequal. The framers of the 14th Amendment didn't think that separation always everywhere be unequal. And in fact, we believe in separate but equal. We believe that separate can be equal in certain areas. When it comes, for example, to certain kinds of sex discrimination. We can say the boys have their hardball team, and the girls have their softball team. And boy's gymnastics, it's separate and has slightly different rules. And girl's gymnastics, you know, different, uneven parallel bars versus even parallel bars and the rest. It separates boy's restrooms and, and, and locker rooms and girl's restrooms and locker rooms. So separate can be unequal. So what's going on here? If you think that Brown was saying separate was unequal as matter of interpretation. It's kind of confused. If you think instead Brown is saying as a matter of implementation. Look here's, here's the thing. Separate can be equal; it can be unequal. Who has the burden of proof? Before Brown was aside and the fact, plaintiffs every time had to prove that the separation and the segregation, the formal race classification was unequal. And that put a lot of because, because courts have to come up with rules of proof for court. Who has to prove what, how what, what are sort of the prongs of the doctrine? What things do you have to prove in order to make that your ultimate case of Constitutional inequality? What are the little steps that you have to, to go through in the court? And, and before Brown, in effect, plaintiffs have to show the inequality. Well, here's the unequal drinking fountains, and here's, you know, the unequal class sizes, and here's the unequal funding. After Brown, the presumption is different. We're going to presume that separate is unequal. Separate is not so much that it's inherently unequal. It's that we think it's inevitably unequal as a matter of history. We've seen now enough Jim Crow cases to know that almost always when we look carefully we find inequality. So now, we're going to change the burden of proof. The burden of proof is not going to be in effect on the government to show that there's nothing unequal about this. We're going to presume inequality. That's in the domain of implementation. Because the Constitution can't in the nature of things, specify all the burdens of proof and all the rest, but if the court had done anything else. It really would to vindicated that the idea of equality. Made it real on the ground. It would put all sorts of burdens on discriminating against blacks and their lawyers to prove it case by case. That would have been very expensive, but it would have encouraged shaming and winking by state judges, who were under pressure by state legislatures to uphold Jim Crow. This was a nice clean rule, a clean implementation rule. Separate is basically inevitably unequal. Why though limit it to education? You know, if it's unequal in education isn't also unequal in public beaches and in golf courses and in marriage laws, that said blacks can only marry blacks and whites whites. Well, the court didn't say that in Brown. It said that in education we hold that separate is unequal, and Plessy has no place. So what's going on with that? Remember precedent plays a role here, and it would have been awkward for the court in the same day that it's invalidating all sorts of Jim Crow laws and the federal government in Washington D.C. and the states. At the same time is throwing out hundreds if not thousands of, of, of educational segregation policies. It also has to formally overrule Plessy, so it didn't quite. Today, we understand Plessy to have been overruled, but only in retrospect. At the time, the court said education, education, education. And only later said, oh by the way, that's true in transportation, too. And it didn't give a lot of reasons when it said oh by the way; it just cited Brown which had said education, but said oh, yeah, transportation too. Oh, in the 1967 said, oh yeah, marriage laws also. Marriage laws can't be segregative. The marriage laws in some states had said, whites can marry whites, and blacks can marry blacks, but blacks can't marry whites. And, and the deep logic of Brown, that separate is inherently unequal, suggests that that's unconstitutional. But they limited to education, why did they do that? because if they said in 1954 that, that they didn't in the end invalidate what we call miscegenation laws. It's usually segregation of marriage laws that, that people could marry peop, those only of their own race. They didn't hold, the Warren court didn't invalidate that until 1967. And Earl Warren was there, he's an important, he writes that opinion, but in 1954 he doesn't say that, and why not? Because he's not, judicial power is not to just merely say what equality means, but to make it real in the world and if he announces in 1954 that miscegenation laws are unconstitutional, he's going to make it harder to implement. Brown's going to create even more of a backlash. Because, the resistance to Brown versus the Board of Education, much of it, involved issues of interracial dating, socialization involved miscegenation. A lot of parents of fair skinned white girls were really traumatized by the prospect that their white girls would be in the same classrooms in school as black boys and might socialize with them and maybe become romantically involved with them and had the war in court said. Yes, actually. Miscegenation laws are unconstitutional too. In 1954, the same day it announced Brown versus Board of Education and Bowling versus Sharp, it would have made the implementation task of Brown and the remedial task of actually making these equality rights real on the ground, all the more difficult. And so maybe and, and by the, and it waited until 1967, and by 1967 the world had caught up to the Warren court to some extent summer of love lots blacks are now voting thanks to the Voting Rights Act of 1965. They're Congress has weighed in in support of Brown with the Civil Rights Act of 1964. So the President is on board enthusiastically, Lyndon Johnson. And, and so was the Congress, with its iconic statutes. Dr. King has given his, his speech talking about people holding hands together, and singing together the words of the Negro Spiritual, free at last, free at last. Thank God almighty we're free at last. That was an integrationist moment that had, had, hadn't happened in 1954. It had happened by 1967, so when the court announces that in Loving verses Virginia, that's the case in 1967. It has a much better prospect of making that, that stick. And only few, a few states really were trying to very emphatically prohibit miscegenation by 1967. 1954, a different world. And if you think the Judicial task is merely one of interpretation, you'll miss some of those elements of Brown, how it has to deal with the precedent of Pleissy, how it had to deal with implementation and remedial issues as well. Well, let's take a couple more examples and then we'll start talking about precedence and in the next lecture. Let's take the example of prayer in the public schools. The court announces these precept that there have to be religious liberty and equality. And there's massive backlash. States are still trying to sneak organized prayer into the schools, and the court reacts to that by pushing back and maybe overreacting. A later case, after the Warren court, said a state can't have a law in it's schools simply allowing a moment of silence. And what's wrong with a moment of silence? The, the government isn't composing the prayer. People are free to think what they want in that moment. Some people are free to pray; other people are free to think about baseball. Atheists are think, are free to think, atheist students, heretical thoughts. The court after the Warren started to move away from equality as the idea toward this idea of separation of church and state, and that phrase doesn't appear in the Constitution. That doesn't mean it's wrong, all sorts of other phrases don't appear, like the rule of law. But separation, I think, was not, so separation could be permissible if it's a sensible implementation of, of the idea of equality, but was it a sensible implementation? Because separation can sometimes actually work to undercut religious equality. Let's take a system, for example, where everyone gets a computer. Every kid in public school and in private school, that doesn't have religion gets a computer to do work. Now, what happens if a kid wants to use the computer at a religious school? If you think the idea of equality is the key, well, you say, well everyone gets a computer. It doesn't matter whether you pray or not, whether you're a religious school or not. If the schools teach reading, writing, arithmetic, you get the computer. We don't discriminate in favor of religion; we don't discriminate against it. That's the apogee of the idea. If you can think, it's the separation idea, you say, oh, no, we can't allow that. We can't have kids in religious schools using computers, because then, the government wouldn't be completely separate from the religious schools. Separation taken to the extreme can actually to discrimination against religion, and the core idea is equality for all faiths and the absence of faiths. The core idea is not separate but equal. So, getting in our minds what the key Constitution concept is and when implementation actually starts to undercut that concept, religion cases are, I think, a useful reminder. And in recent years, the court has moved away from separation as the metaphor and focused more on equality. Give you one final example, of how these concepts, let's think about voting, So if the equal protection clause were the basis of voting rights, well then of course, all votes have to count equally because the word says equal. It says equal protection. But the equal protection clause probably isn't the proper basis; that's about persons not citizens, it wasn't about voting. The proper basis is probably the republican government clause. and, and the idea that that and, and the 14th Amendment, Section Two that says the right to vote shall not be abridged. And maybe it's possible to imagine a certain societies that are tolerably Republican that have some unequal weighting of votes. So maybe in the domain purely of interpretation, Republican government doesn't mean that every vote has to be counted exactly the same, that every district has to be exactly the same size. Maybe you could have some inequality of district size and still be a genuinely republican government, okay. So, the domain of interpretation, republican government doesn't equal, automatically equal districts, you know. Unequal districts are not inherently unrepublican as a matter of, of interpretation. But now think about implementation. Okay, so some inequalities are permissible but how much? Is 10% variation between the districts okay? What about 20%, 30%? At some point, let's go back to the earlier hypothetical, suppose legislator the fifty-one most senior members of legislature, their household are themselves districts. So they in their households vote in these fifty-one districts, the rest of the state, forty-nine other districts. And that means that these fifty-one people have a permanent lock on power. Well that goes too far, obviously. That's not republican, that's an aristocracy. That's an oligarchy. That's, that's, that's ridiculous. But if that goes too far, how do you implement, you know, in a judicially enforceable, clean way the principle, and here's one thing that equality has going for it. It's a nice, clean, bright line rule as a matter of implementation. And when you understand that judicial power involves, not just interpretation, but implementing things in the real world in a way that judges can, can enforce, and lower courts can understand. Appellate judges can enforce. Lower course can understand, attorneys can understand, the rest of the government can understand. One person, one vote has a certain implementational cleanness that's really quite striking. Okay we've talked about some of these aspects of, of judicial power. Interpretation, implementation. I'm actually in the next lecture going to talk a little about the remedy component, say a little bit more about the exclusionary rule, maybe that will illustrate the remedy component. But we're mainly going to focus on the role of precedent on Stare decisis and try to figure out when we should go with precedent. And where we should go with the written Constitution or when precedent and in the written Constitution seemed to point in different directions. Stay tuned. [MUSIC]
