In order to end the revolutionary war, and join the company of nations, the US signed a treaty saying no retaliation on Tories, and protecting their property rights. So the VA court, however, thought the VA law should rule.
John Marshall and his brother were investors in Fairfax's land, so he recused himself. Recusal is relatively rare, incidentally: just when justices make public their views, or when they are hopelessly implicated, as in this case.
Anyway, the remaining SCOTUS resolved the case in favor of Fairfax, Marshall, and the US treaty. So that's judicial review over state legislature. The VA statute was unconstitutional, and voided by the court.
The court is exercising and expanding judicial review: the state legislature is bound by federal treaties. The Constitution says this (Const is #1, treaties are #2, and state laws #3). It's not disputed.
The biggest failure in this area is the 1937 court-packing episode. FDR had had it with the court, and announced a program to bolster/destroy it (i.e., pack it with new justices). The plan failed to pass because Congress wouldn't go along with it, and also because the court got with the program and started declaring everything to be constitutional.
This episode, though, was a pretty bold abnegation of judicial review.
And at this point, a movement gets going to recall the court members. Three members of the court (who had sided unpopularly) were removed.
Next case: OK, go ahead and execute the guy.
So in its way, this is even more dramatic than the court- packing episode. At some point, courts restrain their urges to overturn things, lest they lose what power they have.
Anyway, after all this silence the court strikes down an act to control guns in schools. And Congress rearranges the act, and basically challenges the court (they have not yet responded): hey, do you want to acknowledge that we make the laws, or what?
So Southern courts were incarcerating northern carpetbaggers, and folks passed an act to use habeas corpus to get them released. McCardle was pretty angry at the north. And he got jailed for being so darn incendiary. McCardle wanted his habeas rights, and also maybe all of reconstruction is unconstitutional (military occupation of US territory).
Pres. Johnson (a famously weak president, this case notwithstanding) was frustrated with Staunton (Sec of War), who was agressively anti-Southern, whereas he was moderate. He wanted to replace Staunton, but Congress opposed the move. Johnson says, I'm the president, I get to appoint, I fire him. Congress says that's an impeachable offense, and he got tried before the Senate just as McCardle comes before SCOTUS.
Oral arguments happen in McCardle and then sits on it (this is not a rare tactic), not issuing an opinion.
In the dead of night, Congress amends the law, and repeals the statute granting habeas jurisdiction to the court. Johnson vetoed that legislation. Meanwhile his trial went along, and congress passed the bill over Johnson's veto. So SCOTUS no longer has jurisdiction, even though they've already heard the case. Johnson's impeachment fails by 1 vote (and he goes on to lose the next election).
Oy. So SCOTUS says the Constitution gives us juristiction under such restrictions as congress shall apply; they took our jurisdiction away, so we give up. In a private letter, the chief justice says that if they'd retained jurisdiction, they'd have struck down all of reconstruction.
This is usually seen as judicial weakness: acquiescence to an angry congress.
The court says that separation of powers limits the courts: they don't have the power to issue that sort of order.
Honda appeals this.
The OR constitution says "in actions at law" there's a right to a jury trial. This parallels the federal constitution: i.e., not equity. The amount in controversy needs to be more than $20. "...and no fact tried by a jury shall be re-examined in any court." This is reminiscent of 7A. So no court can overturn a fact by a jury other than by the rules of common law (says 7A). In OR, though, they say that it can't be overturned unless there's "no evidence." The clever lawyer says "no substantial evidence," which is ambiguous but must mean something.
The dissent and the majority differ greatly on what the constitution says. "Clear and convincing" vs "unreasonably dangerous." The two sides insinuate policy (i.e., the majority never says that the law is too vague and juries have too much power; the dissent never says that the law is precise and hard to overcome). As lawyers, we know the result: our client wins. We pick and choose how we will produce that result.
One policy at stake here is really whether the tort system and punitive damages are a good idea. The other issue is what the role of the jury should be, and that's what we'll focus on tomorrow: should juries have the final say, or should judges be able to review them for reasonability. 49 states think that's OK, but OR does not. Is that constitutional under the federal constitution?
In Honda the question said there was too much jury discretion. Here, is a legislature able to cap jury awards? It seems that if we were in federal court, a fortiori, the legislature would be permitted to do this.
Here, the majority says they rule the way they do because they wish to avoid excessive scrutiny, and federal overturnment.
The WI Constitution doesn't say anything about economic damages. Art I § 1 is the basis of the argument: the language is from the Declaration of Independence. Sort of an amalgam of the US due process and equal protection clauses.