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Judiciary

Judiciary. POSC 121 Braunwarth. Displacement of Political Conflict. “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” (Alexis de Tocqueville, 1835) This is a primary source of judicial power

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Judiciary

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  1. Judiciary POSC 121 Braunwarth

  2. Displacement of Political Conflict “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” (Alexis de Tocqueville, 1835) • This is a primary source of judicial power • This is particularly true for controversial issues and when a minority suffers at the hands of the majority • Abortion, Civil Rights, Criminal Rights, etc.

  3. Constitutionalism • Founders wanted to make sure that no leader took on too much power • Created a fundamental law that can’t be transgressed • Constitution protects our popular sovereignty • But there is no mechanism in the Constitution to ensure that it is followed • This was determined through the decision of Marbury v. Madison

  4. Marbury v. Madison, the roots of Judicial Review • A minor Federalist judicial appointee, William Marbury (right) • Sued the Jefferson’s Anti-Federalist Secretary of State James Madison for his appointment • Chief Justice of the Supreme Court, Federalist James Marshall, is in a tough position. • If he rules for Marbury he looks partisan and weak, especially if Jefferson ignores the ruling. • If he rules for Madison, the court looks subservient to the executive branch. • In a brilliant legal maneuver, Marshall declared the entire case to be “Unconstitutional” because Sect. 13 of the Judiciary Act of 1789 unconstitutionally expanded the Court’s scope of Original Jurisdiction • Thus expanding the Court’s power of Judicial Review

  5. Power of Judicial Review (Saffell article) • Judicial Activism: When the courts use the power of Judicial Review to reshape laws • Judicial Restraint: Interpreting the Constitution strictly and deferring to the elected branches when possible • Some arguing for restraint, contend that justices should follow the “original intent” of the framers of the Constitution • What’s the argument against original intent? • That times have changed and those arguing for original intent want to turn back the clock • Why does the Court occasionally need to act in an activist manner? • They may be protecting unpopular groups • Legislators may be beholden to the tyranny of the local majority

  6. Justifying Countermajoritarian Power • Shortly after the Supreme Court has made a controversial and widely unpopular decision on the rights of criminal suspects, a justice agrees to a television interview. The justice sets out to justify to the public the Court’s enormous power and lack of accountability. • Write a script for the justice. How will the justice explain the Court’s countermajoritarian role? How will the justice justify the Court’s secrecy and lack of direct accountability?

  7. Countermajoritarian Power • The system is designed to ensure that justices do NOT answer to the majority, why? • Job is to defend the Constitution, which protects all of us • Should not be swayed by the passions and prejudices of the majority • They have the expertise • Were appointed and approved by elected officials • Only way to protect the minority

  8. Judicial Mechanics • Many more cases are appealed to the Supreme Court than the court can possibly hear • Decide to hear cases by “the rule of four” • The federal Solicitor General can request that the court hear cases important to the executive branch • Typically only hear cases that deal with fundamental constitutional principles and affect large numbers of people • Supreme Court decisions establish “precedent” (stare decisis) for all future cases

  9. Judicial Selection • How are Federal Judges selected? • By the President and approved by the Senate • Important power because gives the President a chance to have an impact beyond his term of office • They thus choose someone of similar ideology • But judicial ideology may evolve later • Appointments have become increasingly political

  10. California Court System • Similarly organized as the U.S. system • Operates independently of the national system • First level of trial courts are known as Superior Courts • Vast majority of cases are decided by plea bargain. • Only way to deal with the massive caseload • Some concerned people get off too easy • Others concerned innocent may admit guilt to lesser charge rather than chance a trial

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