INSTRUCTORSMANUAL - TEST BANK  FOR M ASON AND STEPHENSON, JR.  A

INSTRUCTOR’S MANUAL/

TEST BANK 

FOR M

ASON AND STEPHENSON, JR. 

A

MERICAN CONSTITUTIONAL 

LAW: 

INTRODUCTORY ESSAYS AND SELECTED 

CASES 

SIXTEENTH EDITION 

PREPARED BY

: 

DONALD

 GRIER STEPHENSON,  JR . 

i Copyright © 2012 Pearson Education, Inc.Answers At The End Of Each Chapter 1 / 4

INTRODUCTION: A POLITICAL SUPREME COURT

I.CHAPTER OUTLINE

Constitutional Interpretation and Political Choice A Changing Judiciary Beginnings The Court Comes of Age Judicial Business in the Nineteenth Century The Modern Court Appointment Politics, 1968–1984 From Warren to Burger Fortas Resigns Powell, Rehnquist, and Stevens The First Woman Justice Appointment Politics, 1984–1992 Whose Supreme Court Is It?The Bork Debacle End of the Brennan Era The Thomas Maelstrom Appointment Politics, 1992–2010 Ginsburg and Breyer A New Chief Justice The Obama Appointments

II.CHAPTER OVERVIEW AND OBJECTIVES

Understanding constitutional law today is helped by an awareness of the Court’s institutional developm ent. A summary of this development is presented early in the Introduction, where it is seen that the Court’s first decade was characterized by obscurity, weakness, and uncertainty as to what the institution would become.Detracting from the attractiveness of the high bench in the early years was the circuit riding Congress imposed on the justices, a duty not finally eliminated until 1891. In addition to sitting collectively as the Supreme Court, justices sat as judges of the circuit courts, one of the two types of lower federal courts established by the Judiciary Act of 1789. Although the act provided for three types of courts (district courts, circuit courts, and the Supreme Court), it authorized the appointment of judges only for the district courts and the Supreme Court. Except for a brief period in 1801–1802, no separate circuit judgeships existed until 1855 (for California) and then in 1869 for the rest of the nation. Each circuit court was at first staffed by two justices (a number soon reduced to one) and one district judge. As a result, the early justices spent far more time holding circuit court than they did sitting on the Supreme Court. Despite Marshall’s 8 Copyright © 2012 Pearson Education, Inc. 2 / 4

deserved reputation in constitutional law (as illustrated by Chapters Two, Six, and Eight especially), the bulk of the Court’s work in Marshall’s time and for years afterward was nonconstitutional. Private law cases vastly outnumbered public law cases.The federal judiciary underwent important structural changes beginning in the late nineteenth century that had major ramifications for the Supreme Court. First, in 1891 Congress authorized intermediate appellate courts called circuit courts of appeals. For the first time, the federal judiciary had appellate tribunals below the Supreme Court. For most cases, the old circuit courts had not been appellate tribunals; a case began in either the district or circuit court depending on the subject matter. The old circuit courts were soon merged into the district courts.Circuit riding by the justices, already reduced substantially in the latter half of the nineteenth century, came to an end (ironically just as interstate rail transportation had become faster, more reliable, and more comfortable).Second, the 1891 statute introduced some certiorari, or discretionary, jurisdiction. This meant that there were fewer categories of cases the justices were legally obliged to hear and that the new courts of appeals became the courts of last resort for many cases.Third, as a result of intense lobbying by Chief Justice William Howard Taft (the only president to have become chief justice), Congress in 1925 passed the Judges Bill, which expanded discretionary jurisdiction even further. Now, the Court was in control of most of its docket, not only in terms of the number of cases it would decide each year but also, for the most part, of the issues it would confront. Taft’s political talents left another institutional legacy: the Supreme Court Building. With construction finished in 1935, five years after Taft’s death, the justices finally had a home of their own.Today, in contrast to the docket in the nineteenth century, public law consumes the Court’s time. Roughly half of the Court’s business now consists of constitutional cases, with statutory interpretation accounting for almost all of the rest. Moving beyond its dispute resolution role, the Court has become mainly a maker of public policy for uniform application across the nation.The remainder of the Introduction consists of a narrative and analysis of Supreme Court appointments since 1968, beginning with the transition from the Warren Court (1953) to the chief justiceship of Warren E. Burger and continuing through the appointments of justices Sonya Sotomayor and Elena Kagan by President Barack Obama in 2009 and 2020. Students should find this information instructive. Because appointments to the High Court are infrequent and occur at irregular intervals, most students will have a very limited memory of all but perhaps the most recent ones. The narrative in the Introduction places recent appointments therefore in the context of those that have taken place over a span of more than four decades. But it is not only students who will benefit. Instructors should find the introduction helpful because it lays out in concise fashion recent appointment politics. As such, it is nearly unique among constitutional law casebooks in providing this information in a single one-stop location. Thus, the material demonstrates how the justices who have decided many of the cases included within American Constitutional Law actually reached the Court.9 Copyright © 2012 Pearson Education, Inc. 3 / 4

III.

KEY TERMS

constitutional law constitutional interpretation cases judicial review recess appointment circuit riding seriatim opinions diversity jurisdiction Warren Court

IV.

QUERIES AND SUGGESTED TOPICS FOR LECTURES, CLASS DISCUSSION, AND SELF-

A

SSESSMENT

• Does prior judicial experience make one better qualified for the Supreme Court? A look at the

Court’s roster in late 2010 reveals that all justices but one arrived on the bench with previous service on one of the federal courts of appeals, most frequently on the Court of Appeals for the District of Columbia Circuit. By contrast, as late as 1963, five justices were sitting with no significant prior judicial experience. Justice Frankfurter, who reached the bench with no experience as a judge, flatly declared in 1957 that “the correlation between prior judicial experience and fitness for the Supreme Court is zero.” What qualifications should a president consider when selecting a justice? Should there be a de facto judicial experience requirement for appointment to the Supreme Court? Was the failure of the nomination of Harriet Miers in 2005 due to her lack of judicial experience or primarily to other objections or concerns?

• All nominees to the Supreme Court in the past half century have appeared before the Senate

Judiciary Committee. Is this a desirable practice? If so, are there questions that senators should (and should not) ask? Are there questions that nominees should (and should not) answer?

• Is there an acceptable way to combine both judicial independence (made possible partly by life

tenure) with political accountability? One proposal calls for a constitutional amendment to fix a term of 14 years for Supreme Court justices and other federal judges. In the fourteenth year, the president in office could choose to reappoint the individual for another term of 14 years, or not.As with the initial appointment, reappointment would be subject to approval by the Senate. What are the strengths and weaknesses of this proposal?

• Some Supreme Court nominations in recent decades have been highly controversial. Others

have aroused little controversy and have moved through the Senate with little or no opposition.What factors seem to account for the difference?10 Copyright © 2012 Pearson Education, Inc.

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