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LAW WISEGreetings from the Kansas Bar Association (KBA).

Welcome to this first edition of Law Wise for the 2018-2019 school year.

Coordinators: Honorable Bethany J. Roberts, Chair, LRE Committee; Anne Woods, Public Services Director; Nicolas Shump, Law Wise Editor; & Patti Van Slyke, Journal Editor

SEPTEMBER 2018 • ISSUE 1PUBLISHED BY

Calendar of events

IN THIS ISSUEJudicial Review & the Supreme Court...............1

The Role of the Senate in the Supreme Court Justice Confirmation Process ......................... 2

The Origins and History of the Senate Filibuster ................................. 3

A Closer Look at Brett Kavanaugh .................. 3

The Legal Philosophy of Brett Kavanaugh ....... 4

Lesson Plan 1: Supreme Court ........................ 6

Supreme Court Handout ................................. 7

Lesson Plan 2: Judicial Review ....................... 8

Lesson Activities ............................................. 9

iCivics & Terrific Technology for Teachers ..... 10

Judicial Review andthe Supreme Court

Judicial review, the ability of the Supreme Court to rule on the consti-tutionality of laws and actions by the other branches of the United States government, undoubtedly remains one of the most important checks on the legislative and executive branches. However, this power is not one expressly given to the judicial branch in the U.S. Constitution. Article III, Section 1 simply states, “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.” Section 2 lays out the original and appellate jurisdiction for the Supreme Court. Article VI of the Constitution establishes the Constitution and subsequent laws as the “supreme Law of the Land.”

In Federal-ist Paper 78, A l e x a n d e r H a m i l t o n supported the role of the Su-preme Court in determin-ing the con-stitutionality of laws. “The interpretation of the laws is the proper and peculiar prov-ince of the courts. A con-

stitution is in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course; to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Still, the Supreme Court did not have the authority to determine the ad-

Alexander Hamilton

September 16-22 . Celebrate Freedom Week

September 17 ....................Constitution Day

October 8 ............................Columbus Day

November 6 .......... Kansas General Election

November 12 ......................... Veterans Day



2 LAW WISE | SEPTEMBER 2018

herence of new laws to the Constitution nor what to do if the Court determined a law to be unconstitutional.

One of the many reasons the Founders decided to revise the Articles of Confederation was the lack of a federal and supreme judiciary power. Not only did the new document establish the Supreme Court, it also gave the Court authority to settle disputes between the states. Judicial re-view emerged during the tenure of the fourth Chief Justice of the Supreme Court, John Marshall. A native Virginian, Marshall joined the Court after notable experience and involvement in the early Republic. Marshall served under General George Washington in the Revolution-ary War. After returning to Virginia, Marshall studied law at William and Mary before gaining admission to the bar. In fact, Marshall initially turned down an appointment to the Supreme Court and won election to the U.S. House of Rep-resentatives in 1800. Marshall barely served in Congress prior to accepting appointment as secretary of state under President John Adams.

John Marshall’s time as secretary of state factored into the decision which established the power of judicial review for the Supreme Court. In 1801, the Federalist Party-controlled con-

gress passed the Judiciary Act of 1801. This act created 16 new circuit judgeships and other lesser judgeships too. To continue the influence of the Federalist Party and frustrate the oppo-sition Democratic-Republican Party, President Adams filled these judgeships. As one of the final appointments—known as a “midnight appointment”—William Marbury did not re-ceive his commission from outgoing Secretary of State John Marshall. Upon assuming the presidency, Thomas Jefferson instructed his new Secretary of State James Madison to with-hold the Marbury nomination. William Marbury petitioned the Supreme Court to issue a writ of mandamus to compel James Madison to honor his commission.

Under today’s standards, Justice Marshall would recuse himself from this case, as he had succeeded James Madison as secretary of state. With no such standards in 1803, Marshall ruled on the case. Marshall declared Marbury had the right to his commission. Marshall chastised Jefferson and Madison for denying Marbury his right to this commission. Regarding the writ of mandamus, Marshall ruled the law giving the Supreme Court this authority, the Judicial Act of 1789, was unconstitu-tional. In this ruling, Marshall avoided a showdown with the executive branch regarding which branch had authority over the other. At the same time, this case established the authority of the Supreme Court to rule on the constitutionality of laws as envisioned by Alexander Hamilton in the Federalist Papers. It is likely the power and influence of judicial review will im-pact the upcoming confirmation hearings of Judge Brett Kava-naugh to the Supreme Court.

The Role of the Senate in the Supreme Court Justice Confirmation Process

In a fitting example of the system of checks and balances, the authority of the U.S. Senate to confirm Supreme Court nominees resides in Article II of the U.S. Constitution, which focuses on the Executive Branch. In a long list of powers re-served for the President, the text states, “He shall have Power, by and with the Advice and Consent of the Senate, to make Trea-ties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein other-wise provided for, and which shall be established by Law.” In its typically succinct manner, the Constitution requires the “Advice and Consent of the Senate” but provides no further elaboration regarding how this process shall unfold.

In fact, there is no mention of confirmation hearings or a re-quirement for the senate to take action on a presidential nomi-nee to the U.S. Supreme Court. Since 1789, 163 judges have been nominated to the Court. Approximately 77% of these judges were confirmed. Of that number (125), seven judges de-

clined to serve after receiving confirmation. The senate took no action on ten nominations, three were postponed, twelve were withdrawn and twelve were rejected. When the senate refused to conduct hearings on the nomination of Judge Merrick Gar-land, it was the first time in over 60 years the senate had not acted on a nomination. However, most of these nominations were taken up by the next senate. The last nomination prior to Garland’s to not receive a vote was Judge Henry Stanberry who President Andrew Johnson nominated in 1866—nearly 150 years prior to Judge Garland’s nomination.

Given the relatively informal process behind the “advise and consent” authority, most nominees received nearly automatic confirmation. Harlan Fiske Stone became the first nominee to appear before the U.S. Senate Judiciary Committee, and it was 14 years before another nominee appeared. Even for those nominees who did appear, the hearings were relatively uneventful. Justice Byron White, a Kennedy appointee, spent a mere 11 minutes answering questions. Through the admin-istration of Lyndon Johnson, many nominees received voice votes before the full senate.



SEPTEMBER 2018 | LAW WISE 3

This relatively informal and nonpartisan process changed nearly 30 years ago with the nomination by President Ronald Reagan of Judge Robert Bork. Judge Bork possessed impres-sive credentials for the nation’s highest court. Bork graduated from the University of Chicago Law School, taught at Yale Law School, had served in the Justice Department during the Nixon administration, and spent over three years as the Solici-tor General. At the time of his nomination, Judge Bork served as a Judge on the Circuit Court for the District of Colum-bia. There are parallels to the qualifications of Judge Bork and current Trump nominee Judge Brett Kavanaugh. Ultimately, concerns with Judge Bork’s views on the right to privacy, ex-ecutive power and judicial activism led to his rejection by the Senate Judiciary Committee on a 9-5 vote. In the full senate, his nomination was defeated by a 58-42 vote.

In 2013, Senate Majority Leader Harry Reid initiated chang-es to long-standing senate rules requiring a 60-vote majority to prevent the filibuster on Supreme Court nominees and cabinet and executive agency leadership positions. After the party-line vote, only 51 votes are needed to stop a filibuster from taking place. Without these changes, it is likely Justice Neil Gorsuch might not have received senate confirmation as he received only 54 votes. With a Republican majority in the senate, it is unlikely Senate Democrats will be able to stop the nomination of Judge Brett Kavanaugh. Senate Majority Leader Mitch Mc-Connell has indicated confirmation hearings for Judge Kava-naugh will likely take place in September.

The Origins and History of the Senate Filibuster

One of the more distinctive features of the United States Senate is the filibuster. The etymology of the word provides insight into this senate procedure. It derives from a Dutch term meaning “free booter.” The term referred to pirates who plundered West Indian colonies. In its application for the U.S. Senate, the term describes the intent to sabotage proceedings of the senate. The use of the filibuster in the senate has the

practical effect of keeping the full body from voting on legisla-tion or taking action on a presidential nominee. Supporters of the measure point to the preservation of minority rights with this tool. Detractors claim it obstructs the senate from its leg-islative responsibilities.

The Constitution allows both houses of congress to set their own rules. The idea for the filibuster originated not from the senate itself, but from a suggestion by Vice President Aaron Burr as he presided over the senate in 1805. On Burr’s advice, the senate did away with the rule calling for a simple majority to stop debate on an issue. Though this rule change allowed for the practicing of filibustering, the first filibuster did not occur until 1837. Use of the filibuster increased after the Civil War, though opponents did try to revert to the previous rules. Natu-rally, the proponents of the filibuster used this tool to prevent these reforms from taking place.

It took World War I and the strident urging of President Woodrow Wilson for the senate to adopt the cloture rule. By a 76-3 vote, the senate adopted Rule 22, the super-majority cloture rule that required two-thirds of senators voting to in-voke cloture. When Rule 22 is initiated, debate is limited to no more than 30 additional hours. The longest group filibuster lasted for 57 days as a group of senators held up voting on the Civil Rights Act of 1957. Longtime Senator Strom Thurmond of South Carolina conducted the longest individual filibuster also in 1957; the filibuster lasted for 24 hours and 18 minutes.

In 2013, the Democrat-controlled senate voted to amend the filibuster rules requiring only a simple majority to block votes on cabinet appointees and Supreme Court justices. Though Republican senators objected to this change, when the Repub-lican Party gained control of the senate in 2014, they did not vote to resume the former rules requiring 60 votes. For the time being, the filibuster does not look to be a prominent tool for the United States Senate.

A Closer Look at Brett KavanaughCurrently, Judge Brett Kavanaugh has stopped hearing cases

before the U.S. Court of Appeals for the District of Columbia as he awaits the next step in his nomination process to succeed retiring Justice Anthony Kennedy on the United States Supreme Court.

Brett Michael Kavanaugh is the only child of Edward and Martha Kavanaugh. Both his parents earned law degrees in 1978. His father attended night school for law while working full time. His mother went from being a public school history teacher to working as a prosecutor in Montgomery County, Maryland, to eventually serving as a Montgomery County Circuit Court Judge.

Brett Kavanaugh, 53, attended Georgetown Preparatory




In terms of his legal philosophy, Judge Brett Kavanaugh re-sembles the late Supreme Court Justice Antonin Scalia in being known as an originalist in terms of legal theory. According to Professor Steven G. Calabresi, Northwestern Pritzker School of Law, “Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of con-stitutional texts can be discerned from dictionaries, grammar books, and other legal documents from which the text might be borrowed. It can also be inferred from the background le-gal events and public debate that gave rise to a constitutional provision.” Judge Kavanaugh and other originalists believe the text of the Constitution should be interpreted through this lens. Kavanaugh identifies with the method of textualism also favored by Justice Scalia. According to BallotPedia, “Textual-ism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legisla-tion. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text. Textualism may also refer to a set of practical techniques used by jurists to determine the application of a statute through close consideration of its text. Judge Kavana-ugh has used these standards and methods to write over 300 opinions since his 2006 appointment to the U.S. Court of Ap-peals for the District of Columbia Circuit.

As a nominee for the Supreme Court, Judge Kavanaugh’s legal philosophy and rulings have come under scrutiny. Fol-lowing is a brief overview of some of Judge Kavanaugh’s more notable writings and rulings.

Abortion

With the retirement of Justice Kennedy, there is consider-able interest in Judge Kavanaugh’s opinion of issues such as abortion. During his confirmation hearings to the DC Circuit Court, when asked about Roe v. Wade, he said the following, “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It has been decided by the Supreme Court.” However in the 2017 Garza v. Hagan case involving an undocumented immigrant teenager requesting an abortion, Kavanaugh dis-sented in the 6-3 ruling on the case. Kavanaugh wrote, “The Supreme Court has repeatedly held that the government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion. Today’s majority de-cision, by contrast, ‘substantially’ adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on de-mand, thereby barring any government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.”

School, a boarding school run by the Jesuits. Justice Neal Gor-such is a fellow alumnus. Kavanaugh is a practicing Roman Catholic and is active in his local parish. Kavanaugh subse-quently attended Yale University (Class of 87) and Yale Law School (Class of 90). He clerked for several judges including Justice Anthony Kennedy.

Kavanaugh worked on the Kenneth Starr investigation into President Bill Clinton. Kavanaugh investigated the suicide of White House Counsel Vince Foster. He appeared before the Supreme Court to ask to gain access to the notes of one of Foster’s lawyers, but was unsuccessful in his quest. Kavanaugh authored much of the Starr Commission Report which led to the impeachment of President Clinton.

During the 2000 presidential campaign, Kavanaugh served with the Lawyers for Bush-Cheney. After the election of Presi-dent George W. Bush, Kavanaugh served as a staff secretary for President Bush from 2001-2003. Currently, several Demo-cratic Senators have requested access through the Freedom of Information Act to documents from Kavanaugh’s tenure in the White House.

In 2003, President Bush nominated Brett Kavanaugh to the Court of Appeals for the District of Columbia. Due to

partisan concerns, Kavanaugh did not receive confirma-tion until 2006. In 2008, Kavanaugh joined the faculty of Harvard Law School as a lecturer. Justice Elena Kagan hired Kavanaugh for this position. Kavanaugh serves as the Director of the D.C. Circuit Historical Society and as an advisor to the American Law Institute.

Brett Kavanaugh met his future wife, Ashley Estes, while both worked for the Bush Administration. Their first date was on September 10, 2001. They married in 2004 and have two daughters, Margaret and Elizabeth. Kavanaugh has coached his daughters in youth basketball.

If confirmed, Brett Kavanaugh would be the second young-est justice on the Court at 53. Only Neil Gorsuch, age 51, is younger.

The Legal Philosophy of Judge Brett Kavanaugh




Religious Freedom

In a 2015 case, Priests for Life v. HHS, Kavanaugh dissented from the majority who argued that the Affordable Care Act’s mandate for employers to provide coverage for birth control in their insurance plans did not violate the religious freedom of the employers. Kavanaugh noted, “the regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action con-trary to their sincere religious beliefs.” However, in the same opinion, Judge Kavanaugh acknowledged, “that the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”

The Right to Bear Arms

In 2011, in the District of Columbia v. Heller, the Supreme Court ruled that a ban on handgun possession in the home was unconstitutional. Gun rights advocates asked for the ban to extend to assault rifles as well. In the case known as Heller II, the district court upheld the ban on assault rifles. Judge Kavanaugh dissented arguing, “A ban on a class of arms is not an ‘incidental’ regulation.” “It is equivalent to a ban on a category of speech.” Kavanaugh continued with his appeal to the original Heller ruling. “In Heller, the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.” “There is no meaningful or persuasive con-stitutional distinction between semiautomatic handguns and semiautomatic rifles.”

Environmental Regulation

In 2012, in the EPA v. EME Homer City Generation, Judge Kavanaugh and the D.C. District Court ruled that the EPA had exceeded its authority with provisions of the Clean Air Act. The Supreme Court overturned this decision on a 6-1 vote. In 2014, in the White Stallion Energy v. EPA, Kavana-ugh dissented from his colleagues arguing the EPA had once again exceeded its authority. The Supreme Court overturned this decision with Justice Scalia noting Kavanaugh’s dissent in the ruling.

Opponents of Kavanaugh feel he is pro-business, and they have concerns regarding environmental and regulatory cases if he is confirmed.

Federal Bureaucracy and Government Oversight

In addition to environmental cases, one of Kavanaugh’s more controversial decisions involves the Consumer Financial Protection Bureau (CFPB). In the 2016 case, PHH v. CFPB, PHH, a mortgage lender challenged the authority of the direc-tor of the CFPB to assess additional fines to an administrative ruling fining the company $6.4 million. The additional fines levied by CFPB Director Richard Cordray amounted to $103 million for a total of $109 million.

Writing for the three-judge panel that had ruled against the CFPB and declared the leadership structure unconstitutional, Judge Kavanaugh stated, “The director of the CFPB possesses more unilateral authority—that is, authority to take action on one’s own, subject to no check— than any single commission-er or board member in any other independent agency in the U.S. government.” The panel claimed the CFPB was unconsti-tutional. The full court of appeals overturned the ruling on the constitutionality of the CFPB. In a dissent from this ruling, Kavanaugh claimed, “The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Gov-ernment. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, in-dependent agencies pose a significant threat to individual lib-erty and to the constitutional system of separation of powers and checks and balances. To mitigate the risk to individual liberty, the independent agencies historically have been headed by multiple commissioners or board members.”

Presidential Power and Executive Privilege

Brett Kavanaugh rose to prominence as a member of Ken-neth’s Starr investigation of President Bill Clinton where he led the investigation into the death of White House Counsel Vince Foster. Kavanaugh served as a primary author of the Starr Report that resulted in the impeachment of President Clinton by the U.S. House of Representatives. However, in 2009, in an article in the Minnesota Law Review, Kavanaugh reconsidered whether or not a sitting president should be the subject of criminal investigations. “Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distract-ing. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal inves-tigation is almost inevitably going to do a worse job as Presi-dent.”

Kavanaugh offered the following solution; “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from ques-tioning by criminal prosecutors or defense counsel.” Kavana-ugh claimed there is recourse for Presidential misconduct. “If the President does something dastardly, the impeachment pro-cess is available.”

With the decision not to hold confirmation hearings on President Obama’s nomination of Merrick Garland to fill the vacancy on the Supreme Court after the death of Justice Scalia, the confirmation process of Judge Brett Kavanaugh will likely be controversial. In July of 2018, Kavanaugh made the follow-ing comments at the swearing-in ceremonies for a former law clerk. “In our constitutional system, a judge must be indepen-dent, must keep an open mind in every case, and must decide cases based on the facts and the law, not based on personal or policy views.” It remains to be seen if Judge Kavanaugh has the opportunity to put these words into practice.




Lesson Plan 1: Supreme Court(adapted from USA.gov)

Use the handout (included) to help students understand how the Supreme Court works.https://app_usa_prod_eqffnyamdzrb.s3.amazonaws.com/HowTheSupremeCourtWorks.pdf

How the Supreme Court Decides Cases?

• Typically, the Supreme Court selects a case that usually involves interpretations of the Constitution or federal law. At least four justices have selected the case as be-ing of such importance that the Supreme Court must resolve the legal issues.

• An attorney for each side of a case will have an oppor-tunity to make a presentation to the Court and answer questions posed by the justices. Prior to the argument, each side has submitted a legal brief—a written legal argument outlining each party’s points of law. Other groups who support a particular side on this issue may also write briefs for the case under consideration.

• The justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions advocated by each party.

• Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mon-days, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during Decem-ber and February).

• In the recesses between argument sessions, the justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argu-ment session. They grant review in approximately 80 of the more than 7,000-8,000 petitions filed with the Court each term.

• No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.

• During an argument week, the justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case.

• If the chief justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other justice in the majority. If the chief justice is in the minority, the justice in the majority who has the most seniority assumes the assignment duty.

Characteristics of the Persuasive Essay/Brief

• Purpose H To get the reader to accept the writer’s point of view

on the issue posed by the writing prompt. H To adopt the writer’s way of thinking about the issue

posed by the writing prompt.• Organizational Pattern H Introduction – May have a hook or grabber to get the reader’s at-

tention. – Clearly conveys the writer’s opinion/position on the

topic/thesis statement. H Body – Provides evidence to support the writer’s opinion/

purpose. – Evidence will be in the form of facts, reasons, ex-

amples, details, etc. – Effective transitions show how ideas connect. – May present pros and cons of an argument. – Anticipates the reader’s questions. H Conclusion – Restates the writer’s opinion/position, thesis state-

ment, or focus. – May summarize the main point included in the

body. – May include a personal comment or call for action.

Nebraska Department of Education




Supreme Court Lesson Plan Activities

1. Brainstorm a possible case to argue • Changing the voting age from 18 to 21 • Paying college athletes • Outlawing homework • Why a college education should be free • Local issues • Other controversies or conflicts

2. Select three cases and assign roles for the students • 9 students for the court • Attorneys for both sides • Court officers • Stenographer/note-taker • Additional roles as needed

3. Court is in session • A marshall calls the court to order and keeps the courtroom in order • Allow attorneys to argue their case • Justices ask questions • Judges review and discuss arguments • Decisions are announced to the class • The Court provides basis for their judgement • If the decisions are not unanimous, each side can present rationale for decision

4. Homework Reflection • Students must summarize each of the cases argued. G What are the main issues of each case? G The arguments from each side G The Court’s decision and reasons for the decision

Supreme Court Handout




Lesson Plan 2: Judicial Review (Adapted from Edsitement!)

Overview Though today we take this power for granted, after ratifying the Constitution in 1789, the authority of the

Supreme Court to declare laws unconstitutional did not exist. It took until 1803 and the ruling of Chief Justice John Marshall to implement judicial review in the Marbury v. Madison case.

Guiding Questions

1. What is the role of the Supreme Court regarding laws passed by Congress and state legislatures, and how did John Marshall’s decision in the case of Marbury v. Madison help to underscore the Court’s pre-eminence?

2. Why was the establishment of the notion of judicial review so important for the future history of the Supreme Court and the United States?

Learning Objectives

1. the role of the Supreme Court in interpreting the Constitution 2. the significance of Marbury v. Madison 3. the concept of judicial review and how Marbury v. Madison solidified it 4. the relationship between the Supreme Court and laws passed by Congress and state legislatures

Key Players and Important Documents

• Supreme Court Chief Justice John Marshall • William Marbury, a Maryland citizen who in 1801 sought to become justice of the peace for the

District of Columbia • Secretary of State James Madison • President John Adams (outgoing Federalist in 1801) • Thomas Jefferson (incoming Democrat Republican in 1801) • Charles Lee, Marbury’s attorney • Judiciary Act of 1789 • Judiciary Act of 1801

Materials for Preparation

• Article III of the U.S. Constitution • https://constitutioncenter.org/interactive-constitution/articles/article-iii • Marbury v. Madison decision • https://www.law.cornell.edu/supct/search/display.html?terms=marbury%20v%20madison&url=/

supct/html/historics/USSC_CR_0005_0137_ZO.html • Judicial Act of 1789 • http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=196 • Judicial Act of 1801 • https://www.fjc.gov/history/legislation/landmark-judicial-legislation-back-historical-note-1




Lesson Activities

Part I:A. What does Article III say? Students will read Article III of the U.S. Constitution

to answer the following questions: • What is the job of the Supreme Court as described in

Article III? • Is there any indication in this section that the Su-

preme Court has the “right” or “responsibility” to de-termine whether laws are constitutional—meaning whether they violate or go against what is written in the Constitution?

• Is there any reference to the term “judicial review” in the Constitution?

• Does Article III establish the limits of the Court’s powers?

B. Marbury v. Madison Students should read the text of Marbury v. Madison.

The teacher should pose these questions to students to ensure understanding of major issues of the case:

• What was William Marbury’s complaint and how did it arise?

• What did Marbury hope to achieve by suing Secre-tary of State James Madison?

• Who “won” the case? • What did this decision say about the role of the Su-

preme Court? Why is it still relevant to us today?

C. John Marshall’s Opinion • What did John Marshall write about the power of the

Supreme Court in the actual decision?

• In groups, with partners, or alone, students will do a close textual analysis of the decision to understand Marshall’s argument.

• They may use class time or analyze the decision as homework

• A final discussion in class will check students’ under-standing

Part II: A. What is the job of the Supreme Court in cases where a

law passed by Congress contradicts/violates part of the Constitution?

Students will answer this question based on John Marshall’s ruling in Marbury v. Madison.

Part III: A. Student Comprehension Teacher will lead a class discussion to consider the fol-

lowing questions. • Which has supremacy: the Constitution or ordinary

laws? • How does the Constitution limit the power of legisla-

tive bodies? • Why is this limitation so important, in Marshall’s

view? • What would happen if the Constitution and “ordi-

nary legislative acts” were on equal footing?




The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

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www.icivics.org This site provides teachers with free resources that improve students’ civic knowledge, civic attitudes, and core literacy skills.

The Judicial Branch

Students will learn about the federal and state courts and what they do. They will explore the courts’ role in fairly settling disputes and administering justice, and the unique role of the U.S. Supreme Court in interpreting the U.S. Constitution.

Check out a quick video (https://www.youtube.com/watch?v=IkBkc2Fxe3I&feature=youtu.be) on the Judicial Branch on YouTube!

WEBSITESwww.supremecourt.govThe official site of the United States Supreme Court.www.scotusblog.comThe official blog of the Supreme Courtwww.oyez.orgAn archive of the Supreme Court with a variety of media sources.supreme.justia.comThe Justia US Supreme Court Center which includes opinions going back to the origins of the Court in the 18th century. scdb.wustl.eduThe Supreme Court Database run by Washington University.

APPS

Historic Supreme Court DecisionsMultieducational Inc. 1.99

U.S. Constitution AnnotatedLibrary of Congress

MyCongress-Your Guide to the US CongressContraXter, Inc.

Congressional LeadersArunkumar Chacko

Congressional RecordPressPad Sp


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