The JudiciaryThe JudiciaryChapter 16Chapter 16

AP United States AP United States

Government and PoliticsGovernment and Politics

IntroductionIntroduction Little public interest in judicial nominations but Little public interest in judicial nominations but

considerable congressional interestconsiderable congressional interest Power of the federal courts has increased at the same Power of the federal courts has increased at the same

time as the federal governmenttime as the federal government Federal policy expansion has increased opportunities for Federal policy expansion has increased opportunities for

judges to interpret policiesjudges to interpret policies U.S. judges play a large role in policy-makingU.S. judges play a large role in policy-making Judicial review Judicial review means little in other countriesmeans little in other countries

In Great Britain, Parliament is supremeIn Great Britain, Parliament is supreme Exceptions: Australia, Canada, West Germany, IndiaExceptions: Australia, Canada, West Germany, India

How Should the Constitution How Should the Constitution Be Interpreted?Be Interpreted?

Strict constructionist (interpretivist or Strict constructionist (interpretivist or judicial restraint) approachjudicial restraint) approach: bound to : bound to wording of the Constitutionwording of the Constitution

ActivistActivist (legislative) approach(legislative) approach: look to : look to underlying principles of the Constitutionunderlying principles of the Constitution

Not a matter of liberal versus Not a matter of liberal versus conservativeconservative Judges can be both liberal and conservativeJudges can be both liberal and conservative Activists tend to be liberal and Activists tend to be liberal and

constructionists tend to be conservativeconstructionists tend to be conservative

Development of the Federal CourtsDevelopment of the Federal Courts

FoundersFounders’’ View View Expected judicial review, but not such Expected judicial review, but not such

an extensive rolean extensive role Traditional view: judges find and apply Traditional view: judges find and apply

existing lawexisting law Activists say that judges make the lawActivists say that judges make the law Believed to be least dangerous branchBelieved to be least dangerous branch Has evolved toward judicial activismHas evolved toward judicial activism

National Supremacy and Slavery: National Supremacy and Slavery: 1789-18611789-1861

McCulloch v. MarylandMcCulloch v. Maryland Federal law declared supreme Federal law declared supreme

over state lawover state law Interstate commerce clause Interstate commerce clause

placed under federal law; any placed under federal law; any conflicting state laws voidconflicting state laws void

Dred Scott v. Sandford African Americans could not

become free citizens of the U.S. One of the causes of the Civil

War

Government and the Economy: Government and the Economy: Civil War to 1936Civil War to 1936

Dominant issue: Should the economy be Dominant issue: Should the economy be regulated by the state or the national regulated by the state or the national government?government?

Private property held to be protected by Private property held to be protected by the 14the 14thth Amendment Amendment

Anti-monopoly laws upheld by judicial Anti-monopoly laws upheld by judicial activismactivism

Supreme Court determines what is Supreme Court determines what is ““reasonablereasonable”” regulation regulation

Interprets the 14Interprets the 14thth and 15 and 15thth Amendments Amendments narrowly as applied to African Americansnarrowly as applied to African Americans

Government and Political Liberty: Government and Political Liberty: 1936-present1936-present

Court established Court established tradition of deferring tradition of deferring to the legislature in to the legislature in economic caseseconomic cases

Court shifts attention Court shifts attention to personal liberties to personal liberties and becomes active and becomes active in defining rightsin defining rights

FDR and FDR and ““Court-Court-PackingPacking””

Revival of State SovereigntyRevival of State Sovereignty

Since 1992, the Supreme Court rules Since 1992, the Supreme Court rules that states have right to resist some that states have right to resist some forms of federal action (11forms of federal action (11thth Amendment)Amendment)

Hint at some limits to supremacy of Hint at some limits to supremacy of federal governmentfederal government

Two Kinds of Federal CourtsTwo Kinds of Federal Courts

• Constitutional CourtsConstitutional Courts• Created under Article IIICreated under Article III• Judges serve during good behavior (canJudges serve during good behavior (can’’t be fired)t be fired)• Salaries not reduced while in officeSalaries not reduced while in office• Ex.: Ex.: District Courts District Courts (94), (94), Courts of Appeals Courts of Appeals (12), (12),

and Supreme Court (1)and Supreme Court (1)• Legislative CourtsLegislative Courts

• Created by Congress for specialized purposesCreated by Congress for specialized purposes• Fixed termsFixed terms• No salary protectionNo salary protection• Ex.: Court of Military Appeals and the Territorial Ex.: Court of Military Appeals and the Territorial

CourtsCourts

Selecting JudgesSelecting Judges Party background makes a difference in judicial Party background makes a difference in judicial

behaviorbehavior Senate hold hearings and then must confirmSenate hold hearings and then must confirm Senatorial courtesy: judges for U.S. district Senatorial courtesy: judges for U.S. district

courts must be approved by that statecourts must be approved by that state’’s senatorss senators Litmus testLitmus test

Presidential political ideology go hand-in-hand in Presidential political ideology go hand-in-hand in selecting judges, especially in Supreme Court selecting judges, especially in Supreme Court nominationsnominations

Concerned that this downplays professional Concerned that this downplays professional qualificationsqualifications

Increasing importance of ideologyIncreasing importance of ideology Sharp drop in confirmation rates of appeals nomineesSharp drop in confirmation rates of appeals nominees Even more important in respect to Supreme Court Even more important in respect to Supreme Court

appointmentsappointments

Jurisdiction of the Federal CourtsJurisdiction of the Federal Courts Dual court systemDual court system

One state, one federalOne state, one federal Federal cases listed in Article III and the 11Federal cases listed in Article III and the 11thth Amendment Amendment

Federal question casesFederal question cases: involving U.S. matters: involving U.S. matters Diversity casesDiversity cases: involving citizens of different states: involving citizens of different states All others are left to state courtsAll others are left to state courts

Some cases can be heard in either courtSome cases can be heard in either court If both federal and state laws have been broken (dual If both federal and state laws have been broken (dual

sovereignty)sovereignty) Justified: each government has right to enact laws, and neither Justified: each government has right to enact laws, and neither

can block prosecution out of sympathy for the accusedcan block prosecution out of sympathy for the accused State cases can be appealed to SCState cases can be appealed to SC Excusive federal jurisdiction over federal criminal laws, Excusive federal jurisdiction over federal criminal laws,

appeals from federal regulatory agencies, bankruptcy, and appeals from federal regulatory agencies, bankruptcy, and controversies between 2 statescontroversies between 2 states

Route to the Supreme CourtRoute to the Supreme Court Most cases begin in U.S. district courts, are Most cases begin in U.S. district courts, are

straightforward, and do not lead to new public straightforward, and do not lead to new public policypolicy

The Supreme Court picks cases it wants to hear The Supreme Court picks cases it wants to hear on appealon appeal Uses Uses writ of certiorai writ of certiorai ((““certcert””)) Requires agreement of four justices to hear caseRequires agreement of four justices to hear case Usually deals with significant federal of constitutional Usually deals with significant federal of constitutional

questionsquestions Conflicting decisions by circuit courtsConflicting decisions by circuit courts State court decisions involving the ConstitutionState court decisions involving the Constitution

Only 3-4% of appeals are granted certiorarOnly 3-4% of appeals are granted certiorarii Others are left to lowers courts; this results in a Others are left to lowers courts; this results in a

diversity of constitutional interpretationdiversity of constitutional interpretation

Getting to CourtGetting to Court The Court rejects over 95% of the applications for The Court rejects over 95% of the applications for

certioraricertiorari Costs can be very highCosts can be very high

About ½ of the petitions before the SC are About ½ of the petitions before the SC are in forma in forma pauperispauperis

Interest groups may help with fees.Interest groups may help with fees. The ACLU (American Civil Liberties Union) represents The ACLU (American Civil Liberties Union) represents

people who believe that their constitutional rights have people who believe that their constitutional rights have been violated.been violated.

Center of Individual Rights represents those who feel they Center of Individual Rights represents those who feel they have been victimized by racial quotas.have been victimized by racial quotas.

NAACP has brought many key civil rights cases to the NAACP has brought many key civil rights cases to the Court.Court.

Fee ShiftingFee Shifting

Each party pays own court costsEach party pays own court costs Fee ShiftingFee Shifting: allows the plaintiff : allows the plaintiff

to collect its costs from the to collect its costs from the defendant if the defendant losesdefendant if the defendant loses

Section 1983 of Chapter 42 of Section 1983 of Chapter 42 of the the United States CodeUnited States Code allows a allows a citizen to sue a governmental citizen to sue a governmental official for a violation of rights official for a violation of rights and win money damages and and win money damages and court fees from the governmentcourt fees from the government

StandingStanding A person must have A person must have ““standingstanding”” (entitlement to bring (entitlement to bring

a case) in order to suea case) in order to sue Must be an actual controversy between real Must be an actual controversy between real

adversariesadversaries You must show that you have been harmed by the You must show that you have been harmed by the

law or practice about which you are complaininglaw or practice about which you are complaining Being a taxpayer does not give you the right to Being a taxpayer does not give you the right to

challenge a federal governmental actionchallenge a federal governmental action You may sue a governmental official individually for You may sue a governmental official individually for

damages, but you may not sue the government damages, but you may not sue the government itself without its consent (itself without its consent (sovereign immunitysovereign immunity))

Many of these statutes have been liberalized by Many of these statutes have been liberalized by Congress, making it easier for citizens to sueCongress, making it easier for citizens to sue

Class-Action SuitsClass-Action Suits

A case brought into court by a person on A case brought into court by a person on behalf of not only himself/herself, but all behalf of not only himself/herself, but all other people in the same circumstancesother people in the same circumstances

People may benefit even if they have not People may benefit even if they have not been directly involved in the suitbeen directly involved in the suit Brown v. Board of EducationBrown v. Board of Education

The Court ruled that Linda Brown was denied her 14The Court ruled that Linda Brown was denied her 14thth Amendment rights, but the NAACP lawyers had asked Amendment rights, but the NAACP lawyers had asked that the decision cover all that the decision cover all ““others similarly situated.others similarly situated.””

Some cases may be monetarily advantageous Some cases may be monetarily advantageous for both the lawyers and plaintiffsfor both the lawyers and plaintiffs

The Supreme Court in ActionThe Supreme Court in Action Sessions last from early October to the end of Sessions last from early October to the end of

JuneJune Read Read briefsbriefs in individual offices, hear oral in individual offices, hear oral

arguments in the courtroom, and discuss arguments in the courtroom, and discuss decisions in the conference roomdecisions in the conference room

Most cases come to the SC on a writ of Most cases come to the SC on a writ of certioraricertiorari.. Lawyers must submit briefs.Lawyers must submit briefs. Lawyers them present oral arguments in open Lawyers them present oral arguments in open

court.court. The U.S.The U.S.’’s top trial lawyer, the solicitor general, s top trial lawyer, the solicitor general,

will appear in cases where the U.S. is a party.will appear in cases where the U.S. is a party. Written briefs and oral arguments may also be Written briefs and oral arguments may also be

offered by offered by amicus curiae (interested party not directly involved in the suit).

The Supreme Court in ActionThe Supreme Court in Action Amicus curiaeAmicus curiae is really a type of polite is really a type of polite

lobbying by interest groups.lobbying by interest groups. On Fridays, the justices vote on the cases On Fridays, the justices vote on the cases

they have heard.they have heard. About 2/5 of the decisions are unanimousAbout 2/5 of the decisions are unanimous Issues a written opinionIssues a written opinion

Per curiam Per curiam opinion (brief and unsigned)opinion (brief and unsigned) Opinion of the Court Opinion of the Court (reflects the majority(reflects the majority’’s view)s view) Concurring opinion Concurring opinion (opinion by one or more who (opinion by one or more who

agree with the decision, but for different reasons)agree with the decision, but for different reasons) Dissenting opinion Dissenting opinion (opinion of those on losing (opinion of those on losing

side)side)

The Supreme Court in ActionThe Supreme Court in Action

Conference proceduresConference procedures Role of Chief Justice: speaking first, voting lastRole of Chief Justice: speaking first, voting last Selection of opinion writer(s)Selection of opinion writer(s)

Strategic retirements from the U.S. Supreme CourtStrategic retirements from the U.S. Supreme Court There has been a sharp increase in the rate of There has been a sharp increase in the rate of

retirementsretirements Early duties were physically taxing, adverse to oneEarly duties were physically taxing, adverse to one’’s healths health More recently, retirements occur when justices and presidents More recently, retirements occur when justices and presidents

share same partyshare same party Types of casesTypes of cases

Great majority of cases have little to do with public policyGreat majority of cases have little to do with public policy Most cases are people accused of bank robbery, disputes over Most cases are people accused of bank robbery, disputes over

contracts, personal-injury cases, and patent lawcontracts, personal-injury cases, and patent law

The Power to Make PolicyThe Power to Make Policy The power to make policy The power to make policy

Reinterpret the law or the Constitution Reinterpret the law or the Constitution Extend the reach of lawsExtend the reach of laws Design remedies for problemsDesign remedies for problems

Measures of powerMeasures of power More than 160 federal laws have been declared More than 160 federal laws have been declared

unconstitutional.unconstitutional. Number of prior cases overturned; NOT following Number of prior cases overturned; NOT following stare stare

decisisdecisis: : ““let the decision stand;let the decision stand;”” principle of precedent principle of precedent Deference to the legislative branch (political questions)Deference to the legislative branch (political questions) Kinds of remedies imposed; judges go beyond what Kinds of remedies imposed; judges go beyond what

justice requiresjustice requires Basis for sweeping orders either from the Constitution Basis for sweeping orders either from the Constitution

or interpretation of federal lawsor interpretation of federal laws

Views of Judicial ActivismViews of Judicial Activism

SupportersSupporters Courts should correct Courts should correct

injusticesinjustices Courts are last resortCourts are last resort

CriticsCritics Judges lack expertiseJudges lack expertise Courts not accountable; Courts not accountable;

judges not electedjudges not elected Various reasons for Various reasons for

activismactivism Too many lawyers; but Too many lawyers; but

real cause adversary real cause adversary cultureculture

Easier to get standing in Easier to get standing in courtscourts

Legislation and CourtsLegislation and Courts

Laws and the Laws and the ConstitutionConstitution are filled with are filled with vague languagevague language Ambiguity gives courts opportunities to design Ambiguity gives courts opportunities to design

remediesremedies Courts can interpret language in different waysCourts can interpret language in different ways

Federal government is increasingly on the Federal government is increasingly on the defensive in court cases; laws induce defensive in court cases; laws induce litigationlitigation

The attitudes of federal judges affect their The attitudes of federal judges affect their decisionsdecisions

Checks on Judicial PowerChecks on Judicial Power Confirmation and impeachment proceedings Confirmation and impeachment proceedings

alter the composition of the courtsalter the composition of the courts Changing the number of judgesChanging the number of judges Revising legislation declared unconstitutionalRevising legislation declared unconstitutional Altering jurisdiction of the courts and restricting Altering jurisdiction of the courts and restricting

remediesremedies Constitutional amendmentConstitutional amendment Judges are not immune to politics or public Judges are not immune to politics or public

opinionopinion Effects will vary from case to caseEffects will vary from case to case Decisions can be ignoredDecisions can be ignored

Ex: school prayer, segregated schoolsEx: school prayer, segregated schools Usually if register is not highly visibleUsually if register is not highly visible

Checks on Judicial Power: Checks on Judicial Power: Public Opinion and ActivismPublic Opinion and Activism

Defying public opinion, especially elite Defying public opinion, especially elite opinion, frontally is dangerousopinion, frontally is dangerous

Opinion in realigning eras may energize courtOpinion in realigning eras may energize court Public confidence in court since 1966 has Public confidence in court since 1966 has

variedvaried Change caused by changes of personnel and Change caused by changes of personnel and

what government is doingwhat government is doing Reasons for increased activism?Reasons for increased activism?

Growth of governmentGrowth of government Activist ethos of judgesActivist ethos of judges