Supreme Court

Judiciary – The cornerstone of our democracy

The Judiciary

• Alexander Hamilton penned in the Federalist # 78 thatthe judiciary would be the “least dangerous branch ofgovernment. It lacked the teeth of both the otherbranches of government; it had neither the power of thesword nor the power of the purse.”• Today the federal courts are very powerful.• Nevertheless, the courts still have two basic limitations:they have neither the power of the purse, nor the of thesword.• The court cannot fund programs or their implementationnor can it force compliance with its rulings.

The Constitution and theNational Judiciary

• Article III of the Constitution establishes:• – a Supreme Court in which the judicial power of the UnitedStates is vested– life tenure or 'good behavior’ for judges– judges receive compensation that cannot be diminished duringtheir service– such inferior courts as Congress may choose to establish– the original jurisdiction of the Supreme Court• The intent of Article III was to remedy the failings ofthe Articles of Confederation which left judicial mattersto the states.

Judicial Review

• Marbury v. Madison (1803)– Allows the courts to rule on the constitutionality

of laws, giving the court the power to strike down or reinforce policy

– Judiciary Act of 1789 and the writ of mandamus

Judicial Review

• Judges have used this power

sparingly.

• The power has only been used

about 140 times to strike down acts of Congress.

• Although more frequently (over

1200 times) to invalidate acts of state legislatures.

The American Legal System

• The American legal system is a dual system:– state courts--actually 50 different 'systems'– federal courts• Both systems have three tiers:– trial courts--litigation begins and courts hear thefacts of the case at hand (original jurisdiction)– appellate courts--decide questions of law, not

fact(appellate jurisdiction)– high or supreme courts

Federal Selection Process

• The selection of judges is a verypolitical process.• Judges are nominated by the presidentand confirmed by the Senate.• –Often presidents solicit suggestions frommembers of the House of Representatives,Senators, their political party, and others.• Provides president opportunity to putphilosophical stamp on federal courts

Public Influence on Justices

• Justices are NOT elected, appointed by Prez

• However, not entirely immune to public opinion

1. Appointed by Prez, agree with his ideologies, Prez was elected, chosen because of bias

2. Justices are aware of public opinion, and are aware that decisions that flagrantly go against public opinion will not be implemented

Appointment

• President appoints judges for ALL federal court vacancies

• Senate must confirm all nominations by majority vote (Advice and consent)

• Senatorial courtesy – tradition started by G.Washington to seek approval from local senators over locally appointed judges

Nomination Process

• No constitutional• qualifications• Competence• Ideology/Policy• Preferences• Rewards• Pursuit of Political• Support• Religion• Race and gender

Elena Kagan

Federal Court System

• Step 1 – DISTRICT COURTS– 94 US Dist. – Hear 342,000 cases/yr– Trial by jury (only federal court with jury)

• Step 2 – APPEAL (CIRCUIT) COURTS– 12 Courts of Appeal – Hear 61,000 cases/yr– Panel of 3 judges, sometimes more– No cases start here, review district court

decisions– (IL, IN, and WI in the 7th circuit)

Federal Court System

• Step 3 – US Supreme Court– 2003 – Argued 84 cases, decided 71– Hear appeals – writ of certiorari– Rule of 4 – 4 justices needed to agree to hear a

case

Chief Justice John Roberts

Types of Opinions

• When an opinion is written (a decision), it often takes months and many drafts– Majority Opinion – justices in the majority

must draft an opinion setting out the reasons for their decision

– Concurring Opinion – justices who agree for other reasons can give their opinion

– Dissenting Opinion – justices who disagree with the opinion write their side

Implementation

• “John Marshall has rendered his decision; now let him enforce it!” – Andrew Jackson

• “All deliberate speed” – Chief Earl Warren– 10 years after Brown only 1% of Southern

schools were desegregated

• Court must rely on branches, states, and officials to enforce its ruling

Conservatism vs. Liberalism

• Justices are supposed to be “above politics”

• However, they do have personal ideologies– EX. – CJ Earl Warren (1953-69) and CJ

Warren Burger (1969-1986) were very liberal– CJ William Rehnquist (1989-2005) and CJ John

Roberts (2005-?) swing conservative

How the Justices Vote?

Legal Factors• Judicial Philosophy– Judicial Restraint - advocates minimalist roles for judges– Judicial Activism - feels that judges should use the lawto promote justice, equality, and personal liberty.– Strict interpretation- rule on basis of Constitution as itis written, resists interpretation or interpreting it to fitcontemporary issues(Scalia)– “Living Constitution” philosophy- evolution of Const.to contemporary world (Breyer)• Precedent– Prior judicial decisions serve as a rule for settlingsubsequent cases of a similar nature.• Stare decisis—doctrine of precedent

Extra-Legal Factors

• Behavioral Characteristics– The personal experiences of the justices affect how they vote.(Early poverty, job experience, friends and relatives all affecthow decisions are made.)• Ideology– Ideological beliefs influence justices' voting patterns.• Liberal or conservative• The “Attitudinal Model”– A justice's attitudes affect voting behavior.• Public Opinion– Justices watch TV, read newspapers, and go to the store likeeveryone else. They are not insulated from public opinion andare probably swayed by it some of the time.

• All judges make policy.

• This was particularly noticeable following

the Court ordered desegregation in 1954

Brown ruling.

• Reminder: courts do not have the power to

implement their decisions. The executive

branch must enforce the Court’s decisions.

Constraints on the Power of Federal Courts

1. Adversarial system – decision must be made between 2 choices, and court can’t bring up an issue

2. Justiciable dispute – must judge actual situations, not hypothetical situations

3. Political question – absence of law to rule on a case and the court calls on the Congress to create law

Ex. – gay marriage – equal protection

Checks on the SC

• President appoints all judges• Congress must confirm appointed judges• Congress may alter the structure of the

court system (# of courts and justices)• Congress has the power to impeach judges• Congress may amend the Constitution if

the Courts find a law unconstitutional– Ex. Income tax originally found

unconstitutionally so Congress added 16th amendment

Judicial and Political Philosophy

Liberal

Leans to the left on public policy and would vote Democrat

Conservative

Leans to the right on public policy and would vote Republican

Judicial Activism

Judges should interpret law loosely, using their power to promote their preferred political and social goals. Judges are said to be activists when they are likely to interject their own values in court decision

Judicial Restraint

Legislators, not judges, should make the laws. Judges are said to exercise judicial restraint when they rule closely to statutes and previous cases when reaching their decisions. They follow the “original intent” of the framers.

Freedom Order

Equality

Freedom

The “new” court…

• Chief Justice John Roberts (George W)• Associates:

– Antonin Scalia (Reagan)– Anthony Kennedy (Reagan)– Clarence Thomas (Bush Sr)– Ruth Ginsburg (Clinton)– Stephen Breyer (Clinton)– Samuel Alito (George W)– Sonia Sotomayor (Obama) – Elena Kagan (Obama)

• In Gideon v Wainwright, the United States Supreme Court ruled that the

A. Bible could be distributed at public schools under the free exercise clause of the First Amendment

B. exclusionary rule prevented the introduction of evidence seized in violation of the Fourth Amendment from being introduced into court

C. eminent domain clause of the Fifth Amendment prevents government from taking religious property fro public purposes

D. Sixth Amendment right to counsel provision applies to those accused of major crimes under state laws

E. Eighth Amendment cruel and unusual punishment provision cannot be applied in a discriminatory manner

• Which of the following is filed when an imprisoned person wants to be brought before a judge so that the judge can determine whether his or her imprisonment is legal?

A. Bill of attainder

B. Ex post facto petition

C. Writ of certiorari

D. Habeas corpus petition

E. Amicus curiae brief

• What does the term Stare decisis mean?

• Stand by the decision

• S. Court uses past decisions to make their current decisions