14 the judiciary. copyright © houghton mifflin company. all rights reserved.14 - 2 map 14.1: u.s....
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Map 14.1: U.S. District and Appellate Courts
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Early History of the CourtInstitutional Legitimacy1. Defeat of politically-motivated impeachment of Justice Chase- judicial independence
2. Issuance of a single majority opinion that enabled the Court to speak with one voice
3. Judicial Review established in Marbury v. Madison (1803), creating an equal partnership with other branches
Decision-making eras1. 1787-1865: National Supremacy, Federal Legitimacy, and Slavery
a. Martin v. Hunter’s Lessee (1816)- binding interpretations of federal law on state courts
b. McCulloch v. Maryland (1819)- federal supremacy. However, not applied in practice until after civil war. In Dred Scott v Sanford (1857), federal law overturned for only 2nd time. Court’s reluctance to use Judicial Review made its use uncertain.
2. 1865-1937: Relationship between Government and Economya. Court acts to support property rights under the 14 th Amendment’s Due Process clause (intended?)
b. Laissez-faire. However, 80% state regs. upheld 1887-1910. Inconsistencies became common
c. “Switch in time that saves nine.” NLRB v. Jones and Laughlin (1937), Carolene Products (1939)
3. 1938-present: Protection of Civil Libertiesa. Personal liberties protected, i.e. free speech, racial integration. Such cases less today (Reagan, Bush)
4. 1997- present: Federalism revisited?a. Ex. Printz v. U.S. (1997): dual federalism? Contrast with South Dakota v. Dole (1986)
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Table 14.1: Chief Justices of the United States
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“Deciding to Decide”Steps in the Decisionmaking Process- Strategery?1. Dispute pyramids- 10% of all cases make it to court
2. Granting Certiorari- 8,000 appeals annually, <100 cases heard per Rehnquist terma. Impact on no cert.- case stands (MA gay marriage). Implications?
3. Oral Arguments- organized chaos, strategic questioninga. 30 min. per side, Solicitor General gets 10 automatically
b. Rarely 30 seconds elapse before interruption
c. Attack or lead attorney
4. The Conference- seniority, decorum, and influencea. Opinion writers chosen, based on make up of majority and seniority
1. Majority, concurring, and dissenting opinions
b. Voting decisions: attitudinal (Segal and Spaeth) or strategic (Epstein and Knight)
c. “Lobbying?” Justices insist not; however, Kennedy’s “switch” 10 hrs. before Bush v. Gore
5. The decision- quorum with 6, ties go to previous courts’ decision. a. Only amicus curaie briefs with statistical significance: SG’s
6. Greater fragmentation in voting: 19th c- 90% unanimity. 1995- 38.7%a. Concurring opinions are important in deciding whether Court is creating precedent (Brown)
b. “Occasionally,” Lawrence Baum explains, “ . . . no opinion gains . . . majority . . . [therefore] there is a decision but no authoritative interpretation of the legal issues in the case.” (Gretz)
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Table 14.2: How Partisanship Affects Judicial Attitudes
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Strategic Retirements?See the following:
1. “Strategic Retirements” p. 423
2. “Litmus Test” p. 414
3. “What Would You Do?” p. 425
4. Note Bene:a. Civil vs. Criminal law distinction
b. Burdens of guilt for juries1. Beyond a reasonable doubt (100%) vs. preponderance of the evidence (50 + 1%)
2. De facto vs. De Jure segregation3. Senatorial Courtesy
4. In forma pauperis and Gideon v. Wainright (1963)
5. Fee shifting, standing, sovereign immunity, Per curiam, stare decisis
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Figure 14.1: Female and Minority Judicial Appointments, 1963-2000
Source: Harold W. Stanley and Richard Niemi, Vital Statistics on American Politics, 2001-2002 (Washington, D.C.: Congressional Quarterly Press, 2001), table 7.5.
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Figure 14.1: Female and Minority Judicial Appointments, 1963-2000 (cont’d)
Source: Harold W. Stanley and Richard Niemi, Vital Statistics on American Politics, 2001-2002 (Washington, D.C.: Congressional Quarterly Press, 2001), table 7.5.
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Figure 14.1: Female and Minority Judicial Appointments, 1963-2000 (cont’d)
Source: Harold W. Stanley and Richard Niemi, Vital Statistics on American Politics, 2001-2002 (Washington, D.C.: Congressional Quarterly Press, 2001), table 7.5.
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Table 14.3: Supreme Court Justices in Order of Seniority, 1999
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Figure 14.2: The Jurisdiction of the Federal Courts
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Figure 14.3: Patterns of Public Confidence in the Court
Source: Updated from The Gallup Poll: Public Opinion 1991 (Wilmington, Del.: Scholarly Resources, Inc., 1992), 213.
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The Power of the Federal JudiciaryStrict Constructionist Approach- judges should confine themselves to applying those rules that are stated clearly or
implied by the Constitution
Activist Approach- judges should discover the general principles underlying the constitution and amplify
those principles on the basis of some moral or economic philosophy. Today: activists are liberals; 1930’s: opposite was true.
Barriers to getting to court1. Standing
a. Indigence
b. Fee shifting
c. Class action suits
2. Sovereign immunity
3. Political questions
4. Remedies
Powers of the Court- not “too many lawyers”1. Provide solutions to problems
2. Have increased in power with government
Checks on the Court- political appointments to S. Ct. have largely failed