Judicial Power:

An Introduction

"There is hardly a political question in the United States which does not sooner or later turn into a judicial one."

Alexis de Tocqueville

Nature of Judicial Power• What Makes Judicial Power Unique?• Dispute resolution

– Deciding application of law in cases– The “Power of the Scale”

• Supremacy clause – Interpretation of constitutional and statutory law– Judicial review

• Marbury v. Madison• Judicial activism v. Judicial restraint

• Weakest branch, according to Federalist– “the least dangerous to the political rights of the Constitution– It will be least in a capacity to annoy or injure them”– Contributes to “good behavior” argument

Sources of Law and Judicial Power

• Common Law– Connected to prevailing custom– English Legal tradition

• Norman conquest and the curia regis• Precedent• Stare decisis

– Spanish Legal tradition generally similar• Source of common law in Texas

– Not all states recognize a common law tradition• Louisiana • Kentucky

• Constitutional law– US Constitution– State Constitutions

Sources of Law and Judicial Power

• Statutory and Administrative Law– Public Policy Cycle at Federal and State

levels– Adoption and implementation– Statutes– Regulations

• Case law– Law that arises from judicial decisions– Result of precedent and stare decisis