The Judiciary

1. The Judiciary

2. Only in the United States do judges play so large a role in policy making • Judicial Review • Right to rule on laws and executive acts on basis of constitutionality • Chief judicial weapon in system of checks and balances

3. Activist v Strict • Strict Constructionist (interpretivist) approach • judges are bound by the wording of the Constitution • Activist (legislative) approach • Judges should look to the underlying principles of the Constitution

4. Not a matter of Liberal v Conservative • A judge can be both conservative and activist, or vice versa • Today most activists tend to be liberal, most strict constructionists conservatives

5. Development of the Federal Courts • Founders View • Expected judicial review, but not its large role • Traditional, judges find and apply existing law • Made it easier for Founders to justify judicial review • Hamilton: Courts least dangerous branch • Evolved toward judicial activism

6. National Supremacy and Slavery1789-1861 • McCulloch v. Maryland: federal law declared supreme over state law • Interstate commerce clause is placed under the authority of federal law; conflicting state law void • Dred Scott v. Sandford: Negroes were not and could not become free citizens of the U.S.; a direct cause of the Civil War

7. Government and the EconomyCivil War to 1936 • Dominant issue of the period: whether the economy could be regulated by state and federal governments • Private property held to be protected by the 14th Amendment • States seek to protect local businesses and employees from the predatory activities of national monopolies; judicial activism

8. The Supreme Court determines what is “reasonable” regulation • The Court interprets the 14th and 15th Amendment narrowly as applied to Blacks

9. Government and political liberty1936 to present • Court established tradition of deferring to the legislature in economic cases • Court shifts attention to personal liberties and becomes active in defining rights

10. Revival of state sovereignty • Supreme Court rules that states have right to resist some forms of federal action • Hint at some real limits to the supremacy of federal government

11. Constitutional Created under Article III Judges serve during good behavior Salaries are not reduced while in office Examples District Courts (94) Courts of Appeals (12) Legislative Created by Congress for specialized purposes Judges have fixed terms No Salary protection Examples Tax Court Federal Claims Structure of Federal Courts

12. Selecting Judges • Party Background • Senatorial courtesy: judges for U.S. district courts must be approved by that state’s senators • Litmus Test • Presidential successes in selecting compatible judges • Greatest effect on Supreme Court

13. Jurisdiction • Dual Court System • One State, one federal • Federal Cases listed in Article III and 11th Amendment • Federal question cases: involving U.S. matters • Diversity cases: involving citizens of different states • All others left to state courts

14. Concurrent Jurisdiction • Cases that can be tried in either courts • If both federal and state laws have been broken (dual sovereignty) • Justified: each government has right to enact laws, and neither can block prosecution out of sympathy for the accused

15. State Cases can be appealed to Supreme Court Tinker v. Des Moines Independent School District • Exclusive federal jurisdiction over federal criminal laws, appeals from federal regulatory agencies, bankruptcy, and controversies between two states

16. Route to the Supreme Court • Most federal cases begin in U.S. district courts, are straightforward, and do not lead to new public policy

17. Supreme Court picks cases it wants to hear on appeal • Uses writ of certiorari • An order by a higher court directing a lower court to send up the record in a given case for review • Requires agreement of 4 justices to hear case • Usually deals with significant federal or constitutional question • Conflicting decisions by circuit courts • State court decisions involving the Constitution

18. Only 3 to 4 percent of appeals are granted certiorari • Others are left to lower courts: this results in a diversity of constitutional interpretation • Stare decisis, let the decision stand

19. Getting to court • Deterrents to the courts acting as democratic institutions • Supreme Court rejects all but a few of the applications

20. Costs of appeal are high, but these can sometimes be lowered • In forma pauperis: plaintiff indigent, with costs paid by government • Indigent defendant in a criminal trial: legal counsel provided by government at no charge • Payment by an interest group (ex. ACLU)

21. Fee shifting • Usually, each party must pay their own legal expenses • However, the losing defendant pays the plaintiff’s expenses (fee shifting) in certain cases

22. Who May Bring a Case • There must be a real controversy between adversaries • Personal harm must be demonstrated • Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this is relaxed when 1st Amendment is involved • Government must consent to being sued

23. Class Action Suits • Brought on behalf of all similarly situated persons • Number increased because there were financial incentives • 1974 Supreme Court tightened rules on these suits in federal courts

24. Court in Action • Oral Arguments • Each side has ½ hour • Justices may interrupt with questions • Solicitor general • Decides what cases the government will appeal from lower courts • Approves every case presented to Supreme Court • Amicus Curiae (friend of the court)

25. Conference procedures • Role of Chief Justice-speaks first, votes last • Selection of Opinion Writer • Four kinds of Court Opinions • Per curium: brief and unsigned • Opinion of the court: majority opinion • Concurring opinion: agree with majority, but modify • Dissenting opinion: minority opinion

26. Power of Federal Courts • Power to make policy • Interpretation of Constitution or law • Extending the reach of existing law • Designing remedies that involve judges acting in administrative or legal ways

27. Measure of power • Number of laws declared unconstitutional (over 130) • Number of cases overturned (over 260 since 1810) • Extent to which judges handle cases once left to legislature (political questions) • Kinds of Remedies imposed • Basis for sweeping orders can come either from Constitution or from court interpretation of federal law

28. Supporters Courts should correct injustices when other branches or state governments refuse to do so Courts are the last resort for those without power or influence to gain new laws Critics Judges lack expertise in designing and managing complex institutions Need to balance policy priorities and public revenues Courts are not accountable because judges are not elected Views of Judicial Activism

29. Reasons for Judicial Activism • Adversary culture, emphasizing individual rights and suspicious of government power • Easier to get standing in courts • What Would You Do?

30. Legislation and the Courts • Laws and the Constitution are filled with vague language • Federal government is increasingly on the defensive in court cases, laws induce court challenges • Attitudes of federal judges affect their decisions when law gives them latitude

31. Checks on Judicial Power • Congress • Confirmation/Impeachment • Changing number of judges • Revising legislation • Amending Constitution • Altering jurisdiction of the Court

32. Public Opinion • Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion • Opinion in realigning eras may energize dourt • Public confidence in the Supreme Court since 1966 has varied with popular support for the government in general