Presentation Transcript

1. Lecture 3:The Judiciary

   POLI 10: Introduction to American Politics Summer Session I 8 July 2013 Prof. Justin Levitt
2. Today’s myth: We are less free than we’ve ever been. We have traded liberty for security and now we live in basically a police state.
3. From Last Time We have a Constitution! Constitution divides authority into three powers: Legislative, Executive, and Judicial Article III sets up a “supreme Court and such inferior Courts as the Congress may from time to time ordain and establish” Kinda vague, huh? Federalism means that Federal and State courts must share power But how do they divide this power?
4. Lecture Overview Overview of Judicial Power The Structure of the Court System The Three (Four?) Eras of Judicial Review Rights, Liberties, and Democracy
5. Part I: Judicial Power
6. The Importance of Being a Lawyer Are the political classes too lawyer-heavy in this country? Most of the Founders were lawyers 35/55 delegates had attended law school 25 reported to be “currently practicing” 25/44 presidents have had law degrees Over 40% of Representatives and 50% of Senators have law degrees
7. The Origins of Judicial Power British Constitutionalism Common Law Existing system of colonial courts Enlightenment thought Montesquieu argues that the judiciary power should be at par with the executive and legislative Federalist argues that independent courts promote liberty Pragmatic concerns Safeguard against Federal appropriation of state power Brings government close to the people through jury service
8. The Common Law Common Lawis the use of precedent, previous decisions on the same or similar topics, to make current decisions. Under Common Law, judges are expected to interpret, not merely apply, laws and decrees. Judges may be required to explain their decisions, and other courts are obliged to follow those decisions Though used to justify judicial review, fundamentally conservative in nature
9. Federalist Expectations of Judicial Power How strong is the judicial branch? “[T]he judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks” Alexander Hamilton, Federalist 78 So why an independent judiciary? Remember Federalist 10 “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which … have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Alexander Hamilton, Federalist 78
10. What powers does the federal judiciary have? According to the Constitution, mainly arbitrator between: Branches of government Citizens and the federal government States and the federal government Foreign nationals/governments and the US Government To this we can add today: Citizens and state government, where federal laws or guarantees supersede state laws (see Supremacy Clause, Amendment XIV)
11. Federalism and the Courts The Federal court system continues to have very limited jurisdiction over what it can hear States are in charge of most other kinds of cases including: Criminal cases—someone is accused of breaking state law Divided into infractions, misdemeanors, and felonies in increasing severity Punishable through fines or prison Civil cases—someone claims that another person has infringed her rights for which she is entitled to compensation
12. Types of Ruling Federal courts rule on two types of grounds: Substantive rulings based on the merits are cases that give clear guidance to lower courts about how to interpret various laws or Constitutional provisions Procedural rulings are about matters of judicial protocol and process—who has standing? How should lawyers properly file appeals?
13. Division of Labor: Jurisdiction Jurisdiction means the right and responsibility to hear cases under a specific law or dispute Original jurisdiction means that a case starts at that level The Supreme Court has original jurisdiction on cases involving ambassadors or federal officials Appellate jurisdiction means that a case can be appealed (challenged) to that level The Supreme Court has appellate jurisdiction on cases involving two states fighting over water rights
14. Limits on judicial power There are two further restrictions on Federal court jurisdiction, namely standing and harm Standing, that you’re legally entitled to argue the case and the defendant is legally entitled to defend the law. Harm, that you have been hurt by the actions of the defendant.
15. Part II: Structure of the Federal Judiciary
16. Overview The court system looks like a pyramid with fewer courts taking fewer cases on top, and more courts on the bottom 372,563 cases in US District Courts 57,501 cases in Courts of Appeals 78 cases in the Supreme Court (out of over 8,000 appeals) (And remember, the overwhelming majority of cases are handled by the states!) However, power is greater on top than on the bottom Courts do not have to take cases; they may issue a summary affirmation of a lower court or claim no jurisdiction instead
17. Structure of the Federal Court System
18. How a Lawyer becomes a Judge Nominated by the President Often choose people ranked highly by interest groups close to the President (over 90% of nominations share party affiliation) Confirmed by the Senate Deference to home state Senators – senatorial courtesy – particularly on District Court candidates Requires a confirmation hearing in the Senate, where members of the Senate Judiciary Committee grill the nominee This is often a partisan process which can result in backlog Judges then have a lifetime appointment and a protected salary
19. Who’s on the bench
20. District and Circuit Courts 94 District Courts Have original jurisdiction over most federal cases Have initial appellate jurisdiction over most cases from the States There are specialized courts for some areas (criminal, bankruptcy, military, administrative law) 13 Courts of Appeal (+Military courts) 12 Circuit Courts, including 11 geographic and one for DC that handles administrative law The Federal Circuit handles special issues like patents As name suggests, these courts have purely appellate jurisdiction
21. Circuit Courts of Appeals
22. The Supreme Court: Membership Nine Justices (ordered by seniority): John Roberts (Chief Justice; 2005) Antonin Scalia (1986) Anthony Kennedy (1988) Clarence Thomas (1991) Ruth Bader Ginsberg (1993) Stephen Breyer (1994) Samuel Alito (2006) Sonia Sotomayor (2009) Elena Kagan (2010)
23. The Supreme Court: Case Selection Have limited original jurisdiction, mostly appellate authority Applicants file a writ of certiorari (“cert”) that petitions the Court to take the case Cases are selected using the rule of 4, if four justices want to hear a case argued, it gets a hearing Cases are more likely to be heard if the Circuit Courts disagree or interest groups or agencies pressure the Courts Cases may be combined into a single hearing on the same law or topic
24. The Supreme Court: Hearing Once cert is granted (generally in spring), a hearing is scheduled (generally in fall) In addition to lawyers for the plaintiff and defendant, other parties may sign on as amicus curiae, friends of the court, and present additional arguments for or against the decision During the hearing, approximately one hour for oral arguments Most Justices believe this is important, but Clarence Thomas calls it a “waste of time” No video allowed, but audio recording has been allowed since 1955
25. The Supreme Court: Verdict After oral arguments, the justices take an initial vote. If he is in the majority, the Chief Justice decides who writes the opinion of the Court, though Justices may write their own opinions (as dissents or concurring opinions) During this time, members of the Court may try to persuade others to join him or her in their opinion; this may result in changes in the majority! Verdicts are generally returned in the spring (May/June) Observers never know exactly what to expect on a particular day, but bigger decisions are often left until later in the term
26. Opinions have grown over time
27. Part III: Judicial Review and Eras in Constitutional Interpretation
28. The thrifty English had an unwritten constitution, which saved them a large printing bill. But the Americans decided to write theirs out in order to have something for the Supreme Court to interpret From “It All Started With Columbus” by Richard Armour
29. Before Marbury Judicial review is the power to determine the validity of a law and how it must be interpreted Common law always allowed juries and judges to interpret law—that was the very point of common law! Of course, this is quite different under a King who is both executive and judiciary—the King will just say “I intend to enforce Parliament’s rule by doing this” The real issue is balance of power between the branches. Does the power to interpret laws and the Constitution belong with the President/Executive branch or the Judiciary?
30. Marbury vs. Madison: Facts Facts: Under the Judiciary Act of 1801, President Adams awarded Marbury a commission. However, it was not delivered before President Adams stepped down. The following year, the new President Jefferson reorganized the judiciary, and as Marbury’s commission had not been delivered, Jefferson argued it was void. Question: Was Secretary of State James Madison legally mandated to give Marbury his commission?
31. Marbury vs. Madison: Ruling Issues: Does Marbury have a right to the commission? If so, is he entitled to a remedy? If so, is he seeking the right remedy? Ruling: Marbury did have a right to the commission, but the Court lacked jurisdiction to issue the remedy Marbury sought The Supreme Court had no jurisdiction over the issue because it wasn’t a power explicitly granted in the Constitution, the supreme law of the land So because the Constitution is the supreme law of the land, it is superior to ordinary laws If it is superior to ordinary laws, then the Court has the right to declare an “ordinary law” unconstitutional
32. Consequences Established Judicial Review Established the era of judicial restraint Later provides a firm foundation for civil rights Does it lead to better democracy? Let’s hear about this from Cass Sunstein
33. Cass Sunstein Presentation
34. Three eras of Judicial Review: I – 1803-1860 Marshall and Taney were the defining figures Initially the court rarely got involved Only overturned 2 federal laws, about 2 dozen state laws Generally deferred to state law and narrowly interpreted federal laws However, also reiterated the supremacy of the Federal Government McColloch vs. Maryland interpreted the “Necessary and Proper” clause in a broad manner
35. Three eras of Judicial Review: II – 1860-1930 Defined by industrialization, reflected Northern and Midwestern interests Corresponds to (and reflects) Progressive Era beliefs Overturned state laws on worker’s rights (Lochner vs. New York), but upheld laws to protect corporations (Slaughterhouse Cases) Upheld laws restricting individual liberty (Plessy vs. Ferguson, Schenck vs. United States)
36. Three eras of Judicial Review: III – 1938-1993 Began with the “switch in time that saved nine” that prevented Roosevelt’s court packing solution; defined by Earl Warren Highly interventionist Court, particularly on Civil Rights and Liberties Used a doctrine called incorporation of the Bill of Rights, which used the Fourteenth Amendment to argue that the rights of the Bill of Rights applied to citizens as individuals, not federal law Also allowed Congress to use the Commerce Clause to extend the reach of federal control over the states
37. A new era since 1993? The Rhenquist and Roberts Courts have been a lot less liberal on the extent of federal protections In particular, cases like United States vs. Lopez began to restrict the scope of the Commerce Clause The ACA case last year was rejected under Commerce but upheld under Congress’ power to tax Same backshift is true in rights Citizens United restricts Congress and the States from making policies that might limit an organization’s right to speech.
38. Justices and Partisanship Judges are imagined to be “above the political fray” However, they have partisan leanings as much as the next person Republicans tend to nominate conservative-leaning justices as Democrats do liberal-leaning ones. This is completely rational—I want judges who will reflect my beliefs, not unreliable Justices often see themselves as impartial—or at least, want to see themselves as impartial However, there is ample evidence that judges do have biases in how they interpret law
39. Two approaches to the Constitution today Original Intent doctrine argues that the Constitution should be interpreted as intended by the Founders Courts should allow States greater freedom, put more restrictions on Federal power Living Constitution doctrine argues that the Constitution must be analyzed in light of current conditions Courts should be able to broaden Federal power as needed to provide civil rights and protections.
40. Supreme Court Justices by partisan leaning
41. It’s also true of their clerks
42. Are attitudes toward the court changing?
43. Consequences of partisanship Who guards the guardians? What does this mean for individual rights? Businesses? Does the confirmation process play a role? Could we do appointments better? Is partisanship in the judiciary a problem? Is true impartiality achievable? How? Why shouldn’t judges respond to societal changes?
44. Part IV: Civil Rights and Liberties
45. Debates: Rights in context Voting Rights Immigration The Equal Rights Amendment—why did it fail?