17 courts online
TRANSCRIPT
Supreme Court
National Government Institutions
The Supreme Court
Political Scientists v. Legal Scholars
Emphasis on the “politics” of courts– “who get what, when, where, and how”
Less emphasis on what the law means, what it is– more emphasis on its impact beyond the courts
Expands understanding of how the legal system works to include social theories.
Does not study the practice of law, but how that practice effects society and politics
Two ways of understanding the strength of the Court
Method IThe Supreme Court is
the most powerful branch because of the durability of its decisions
The countermajoritarian problem seriously impedes full democracy.
Method IIThe system of checks
and balances and separation of powers effectively leaves the Court as the weakest branch.
The countermajoritarian problem is not a problem for democracy.
Method I- Taft was the only U.S. president to also be on the Supreme Court.
“Presidents come and go, but the Supreme Court goes on forever.”
-- President William Howard Taft
“The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them … The judiciary … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”
—Alexander Hamilton, Federalist 78
Method II- exemplified by the Founding Father, Alexander Hamilton in his defense of the Constitution and the Supreme Court
Structures: Power and Constraint
Power
Discretion in agenda setting
Insulation from other branches
Judicial review
Constraint
Cases must come to the Court
Congressional and presidential “checks”
No enforcement power
Power Provide incentives or
disincentives for action/ behavior by use of remedies
Develop policy through statutory interpretations and constitutional decisions
Constraint Limited by law in
providing remedies
Congress can change the law; clarify intent
Judicial Review
Power to render legislative and executive actions unconstitutional
Marbury v. Madison (1803)– Marbury is denied a commission to be a justice of
the peace. – “It is empathetically the province and duty of the
Judicial Department to say what the law is.” – Chief Justice John Marshall
Judicial Review Over Time: Acts of Congress and State Laws Overturned, 1801-2001
0
2
4
6
8
10
12
14
16
Mar
shall
180
1-35
Taney
183
6-64
Chase
186
5-73
Waite
187
4-88
Fuller
188
9-19
10
White
191
0-21
Taft 1
921-3
0
Hughe
s 19
30-4
0
Stone
194
1-46
Vinso
n 19
47-5
2
Warre
n 19
53-69
Burge
r 196
9-86
Rehnq
uist 1
986-
2001
Chief Justiceship
Nu
mb
er O
vert
urn
ed P
er Y
ear
Acts of Congress State Law s
Source: David M. O’Brien, Storm Center: The Supreme Court in American Politics, 6th ed. (New York: Norton, 2003), p. 30.
Note: Figures represent the number of congressional acts and state laws overturned divided by the number of years of each Chief Justice’s tenure. Note that the figures for the Rehnquist Court only include up to 2001.
Court Process
Petition for a writ of certiorari Conference and vote Briefs filed Oral Arguments Conference and vote Opinion writing Announce decision
Collective action problems
Granting Certiorari– How does the Court come to agreement on 100-150 cases to consider out of the 2,000-8,000 petitions filed each year (number varies by year and type)?– The Rule of Four – Four justices agree to hear the
case, the case is taken up by the Court This is an example of the institutions principle.
– Exceptions– If one justice is vehemently opposed, usually the others will go along.
Collective action problems
Granting Certiorari– The Rule of Four – Exceptions?
Opinion writing- – Want to get enough justices to sign on to make a
majority rather than a plurality opinion.– The more justices signing onto an opinion, the
stronger the precedent. 9-0 with no concurring opinions sends the strongest message.
Answer: Strategic opinion writing.
In most cases, the Supreme Court issues a majority opinion that is controlling.
In rare instances, no majority may emerge and justices write a plurality opinion.
Justices who disagree with the judgment of the majority often offer a dissenting opinion.
Those who agree with the ultimate conclusion but for different reasons might write a concurring opinion.
Strategic opinion writing
Goal: Get as many justices as possible to sign on Reason: Strengthen precedent How: strategic opinion writing
– Rather than writing what is the correct interpretation, justices modify decisions to be more acceptable to others.
– Example: The development of heightened scrutiny in Craig v. Boren (1976)
Brennan believes sex discrimination deserves strict scrutiny, but cannot get a majority to agree.
Instead develops a new middle standard, heightened scrutiny as a compromise.
Court’s legitimacy depends on
Constitution Public perception of neutrality
– Blind justice Staying within the bounds of statutes
BUT…
Models of decision-making
Attitudinal Legal Societal
Attitudinal Model
Personal preference and values of judges drive decision-making
Charges of judicial activism often have
this assumption Many social scientists find solid
evidence in support
Correct?
In practice, constraint on Supreme Court by other branches is limited
Life Tenure= Job stability Difficulty of overturning decisions
– Statutory– difficult to get Congress to pass laws– Constitutional- amendments even tougher
Who could resist?
How else can ambiguity be resolved? Unclear precedent invites?
– Scalia’s critique of “totality of the circumstances”– he argues Court should avoid case by case analysis and come up with clear rules instead.
EVIDENCE: Dissenting justices DON’T normally change votes in future cases.
EVIDENCE: Congress’ threat to break up the traditionally liberal 9th Circuit.
Legal Model
Legal procedure drives decision-making How the law community thinks about judicial
decision-making– Textual meanings– authors’ intent and originalism– Stare decisis
Correct?
Often language is clear Use of documents to support intent claims Judicial intervention comes in very small
numbers.
Judicial Review Over Time: Acts of Congress and State Laws Overturned, 1801-2001
0
2
4
6
8
10
12
14
16
Mar
shall
180
1-35
Taney
183
6-64
Chase
186
5-73
Waite
187
4-88
Fuller
188
9-19
10
White
191
0-21
Taft 1
921-3
0
Hughe
s 19
30-4
0
Stone
194
1-46
Vinso
n 19
47-5
2
Warre
n 19
53-69
Burge
r 196
9-86
Rehnq
uist 1
986-
2001
Chief Justiceship
Nu
mb
er O
vert
urn
ed P
er Y
ear
Acts of Congress State Law s
Source: David M. O’Brien, Storm Center: The Supreme Court in American Politics, 6th ed. (New York: Norton, 2003), p. 30.
Note: Figures represent the number of congressional acts and state laws overturned divided by the number of years of each Chief Justice’s tenure. Note that the figures for the Rehnquist Court only include up to 2001.
Correct?
Often language is clear Use of documents to support intent claims Judicial intervention comes in very small
numbers. Most precedent is not overturned Precedent is the main focus of briefs and oral
arguments
Societal Model
Justices are part of a broader culture in which they are embedded
and this effects how justices make decisions
Correct?
Court tracks public opinion in decision making, but often is lagged by several years.
Decisions are not outlandish by contemporary standards.
Premise closely related to attitudinal model– how else are preference created?
Appointment and confirmation are made by people who rely on public support.