A44 Endnotescentury were the first to promote the idea that Marbury was a
landmark decision. Paulsen also notes that when the opinion
was delivered in 1803 it was not controversial. Even the
Jeffersonian Democrats, who were at odds with Marshall’s
Federalists, thought that it was a reasonable decision and
not the institutional power grab that is described in modern
accounts. Finally, Marshall made a very narrow case for
judicial review, arguing that the Supreme Court could declare
legislation that was contrary to the Court’s interpretation of
the Constitution null and void only if it concerned judicial
powers. Revisionists argue that what appear to be broad claims
of judicial power in Marbury (e.g., the Court has the power
“to say what the law is”) are taken out of the context of a much
more narrow claim of power. Michael Stokes Paulsen, “Judging
Judicial Review: Marbury in the Modern Era: The Irrepressible
Myth of Marbury,” Michigan Law Review 101 (August 2003):
2706–43.
1 3. Bureau of Justice Statistics, Criminal Cases, http://www.bjs.gov/
index.cfm?ty=tp&tid=23 (accessed 3/13/18).- Wal-Mart v. Dukes, 564 U.S. (2011). However, in 2011 the
Court struck down any class-action claim unless there was
“convincing proof of a companywide discriminatory pay and
promotion policy”—statistical evidence of pay disparities
would not suffice. David Savage, “Supreme Court Blocks Huge
Class-Action Suit against Wal-Mart,” Los Angeles Times, June 21,
2011, http://articles.latimes.com/2011/jun/21/nation/la-na-
court-walmart-20110621 (accessed 7/13/16).
1 5. The Internet sales tax case was South Dakota v. Wayfair, Inc.,
585 U.S. (2018), and the case that was overturned was
Quill Corp. v. North Dakota, 504 U.S. 298 (1992). - Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
1 7. The case concerning the bombing in Libya was Kucinich v.
Obama, 821 F.Supp. 2d 110 (Dist. of Columbia 2011). The cases
limiting taxpayers’ standing to challenge laws they disagree
with are Flast v. Cohen, 392 U.S. 83 (1968), and Arizona Christian
School Tuition Org. v. Winn, 131 S.Ct. 1436 (2011).
1 8. United States Courts, Authorized Judgeships, http://www.uscourts.
gov/judges-judgeships/authorized-judgeships (accessed
3/13/18).
1 9. The official name for each appeals court is the “United States
Court of Appeals for the Circuit.”
2 0. United States Courts, Authorized Judgeships.
2 1. United States Courts, Authorized Judgeships. - Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
2 3. The Eleventh Amendment does not mention lawsuits against
a state brought in federal court by citizens of that same state.
However, in Alden v. Maine ( 527 U.S. 706 [1999]) the Court
extended the logic of sovereign immunity to apply to these
cases as well. - Savage, Guide to the U.S. Supreme Court, p. 1003.
2 5. Chris Weigant, “Supreme Court’s Lack of Religious Diversity,”
The Blog, Huffington Post, December 6, 2017, http://www.huffingtonpost
.com/chris-weigant/supreme-courts-lack-of-reb 5545989.
html (accessed 3/1 4/18).
2 6. Adam Liptak and Matt Flegenheimer, “Neil Gorsuch
Confirmed by Senate as Supreme Court Justice, New York
Times, A p r i l 7, 2017, w w w. ny t i me s. c om/2017/04 /07/u s/
politics/neil-gorsuch-supreme-court.html (accessed 3/14/18).
2 7. “President Bush Discusses Judicial Accomplishments
and Philosophy,” Cincinnati, Ohio, October 6, 2008,
https://georgewbush-whitehouse.archives.gov/news/
releases/2008/10/20081006-5.html (accessed 12/1 4/11).
2 8. Paul Kane, “Reid, Democrats Trigger ‘Nuclear’ Option;
Eliminate Most Filibusters on Nominees,” Washington Post,
November 21, 2013, http://www.washingtonpost.com/politics/
senate-poised-to-limit-filibusters-in-party-line-vote-
that-would-alter-centuries-of-precedent/2013/11/21/
d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html
(accessed 5/2/14).
29. Alliance for Justice, “Judicial Vacancies without Nominees,”
March 6, 2018, http://www.afj.org/wp-content/uploads/2014/11/
ReportCurrentAndFutureVacancies.pdf (accessed 3/14/18).
30 John Roberts, “2017 Year-End Report on the Federal Judiciary,”
U.S. Supreme Court, December 31, 2017, http://www.supremecourt.
gov/publicinfo/year-end/2017year-endreport.pdf (accessed
3/1 4/18).
3 1. Supreme Court of the United States In Re Frederick W. Bauer, On
Motion for Leave to Proceed in forma pauperis, No. 99-5440,
Decided October 18, 1999, per curiam, http://supreme.
lp.findlaw.com/supreme_court/decisions/99-5440.html
(accessed 9/26/16 ).
3 2. Roberts, “2017 Year-End Report on the Federal Judiciary.”
3 3. For a critical account of the Supreme Court’s reduced caseload,
which dates back to the Rehnquist Court, see Philip Allen
Lacovara, “The Incredible Shrinking Court,” American Lawyer,
December 1, 2003, pp. 53–58.- New Jersey v. New York, No. 120 Orig., 118 S.Ct. 1726 (1998), and
Kansas v. Colorado, No. 105 Orig., 125 S.Ct. 526 (2004).
3 5. Henry J. Abraham, The Judiciary: The Supreme Court in the
Governmental Process, 7th ed. (Boston: Allyn and Bacon,
1987), p. 25, says that original jurisdiction has been invoked
“about 150 times.” A Lexis search revealed an additional
27 original-jurisdiction cases between 1987 and December
2004. A search of the U.S. Supreme Court’s website, http://www.
supremecourt.gov, found 13 more original jurisdiction cases
from 2005 to 2017.
3 6. Amanda L. Tyler, “Setting the Supreme Court’s Agenda: Is
There a Place for Certification?,” George Washington Law
Review Arguendo 78 (May 2010): 101–18.
3 7. Savage, Guide to the U.S. Supreme Court, p. 848.
3 8. See Thomas G. Walker and Lee Epstein, The Supreme Court
of the United States: An Introduction (New York: St. Martin’s
Press, 1993), pp. 80–85, for a more detailed discussion of these
concepts and citations to the relevant court cases. - Shaw v. Reno, 509 U.S. 630 (1993).
- Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
4 1. Gregory A. Caldeira and John R. Wright, “The Discuss List:
Agenda Building in the Supreme Court,” Law and Society
Review 24 (1990): 813.
4 2. Walker and Epstein, Supreme Court, p. 89; Ryan C. Black and
Ryan J. Owens, The Solicitor General and the United States
Supreme Court: Executive Branch Influence and Judicial
Decisions (New York: Cambridge University Press, 2012).
4 3. U.S. Supreme Court, “The Court and Its Procedures,” http://www.
supremecourtus.gov/about/procedures.pdf (accessed
5 /2 7/1 6 ).
4 4. Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas
G. Wa lker, The Supreme Court Compendium: Data, Decisions,
and Developments, 3rd ed. (Washington, DC: CQ Press, 2003),
Table 7-25.
4 5. Gregory A. Caldeira and John R. Wright, “Amicus Curiae before
the Supreme Court: Who Participates, When, and How Much?,”
Journal of Politics 52 (August 1990): 803.
4 6. Richard L. Pacelle Jr., John M. Scheb II, Hemant K. Sharma,
and David H. Scott, “The Influence of the Solicitor General as
Amicus Curiae on the Roberts Court, 2005–2014: A Research
Note,” Justice System Journal 38:2 (2017): 202–8.
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