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Chapter Sixteen

The Judiciary

Power of the Federal Courts

• Hardly any American really cares or knows about the court system.

• However, Congress cares A LOT!• Federal courts, even at the lowest level,

make decisions that affect everyone.• As the power of the federal gov’t has grown,

so has the power of the federal courts.• Only in the US do judges play so large a role

in making public policy.

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Judicial Review

• Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions

• It is the chief judicial weapon in the checks and balances system

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Constitutional Interpretation

• Judicial Restraint: judges are bound by the wording of the Constitution; also known as strict constructionist

• Judicial Activism: judges should look to the underlying principles of the Constitution; also known as loose constructionist

• Today, most strict constructionists tend to be conservative, most activists tend to be liberal

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Development of the Federal Courts

• Most Founders probably expected judicial review, but did not expect the federal courts to play such a large role in policy-making

• But the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces

• See Hamilton’s view on p.434

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National Supremacy

• Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional; judicial review!

• McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law; necessary and proper clause and supremacy clause!

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1865 to 1936 (See pgs.435-436)

• The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business

• The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states

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1936 to Present (See pgs.437-440)

• The Court establishes tradition of deferring to the legislature in economic regulation cases

• FDR’s Court-packing bill would have allowed him to appoint one new justice for each one over 70 who refused to retire; this would increase the # to 15.

• The Warren Court provided a liberal protection of rights and liberties against government trespass

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Structure of Federal Courts

• The only federal court that the Constitution requires is the Supreme Court, found in Article III.

• S.C. is court of last resort in all questions of federal law.

• Most cases are appeals from lower courts; decisions are binding.

Structure of Federal Courts

• Original – 2 types of cases: 1. cases involving representatives of foreign gov’ts 2. cases in which a state is a party (small % of cases)

• Appellate – hears cases appealed from lower courts of appeals, federal district courts, or highest court of a state, BUT may only rule on the federal issue involved, not the state issue.

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Structure of Federal Courts

• Congress created two lower federal courts to handle cases that need not be decided by the Supreme Court:

• Constitutional court: set up by the Constitution• district courts: total of 94, each state has at least 1;

they are the trial courts for civil and criminal federal cases.

• federal courts of appeals: total of 13, divided into 12 judicial circuits; this is usually the final decision, unless sent to the Supreme Court.

• Legislative court: set up by Congress for a specialized purpose; examples include the Court of Military Appeals, Territorial courts, US Tax Court, US Court of Federal Claims, etc.

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Map 16.1: U.S. District and Appellate Courts

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Selecting Judges

• Party background has a strong effect on judicial behavior

• Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U.S. district courts)• Senatorial courtesy (See p.441)

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Selecting Judges

• Presidents seek judicial appointees who share their political ideologies

• This raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmations• “Litmus test” (test of judge’s political

ideology) is especially important in Supreme Court selection (See p.441-442)

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Figure 16.1: Female and Minority Judicial Appointments, 1963-2003

Source: Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2005–2006 (Washington, D.C.: Congressional Quarterly, 2006), table 7.5.

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Figure 16.1: Female and Minority Judicial Appointments, 1963-2003

Source: Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2005–2006 (Washington, D.C.: Congressional Quarterly, 2006), table 7.5.

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Figure 16.1: Female and Minority Judicial Appointments, 1963-2003

Source: Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2005–2006 (Washington, D.C.: Congressional Quarterly, 2006), table 7.5.

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Federal Cases

• Federal question cases: involving the U.S. Constitution, federal law, or treaties

• Diversity cases: involving different states, or citizens of different states

• Some kinds of cases can be heard in either federal or state courts.• See examples p.444• See Figure 16.3 on p.445

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Federal Cases

• Some cases that begin in state courts can be appealed to the Supreme Court

• Controversies between two state governments can only be heard by the Supreme Court

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Writs of Certiorari

• Order by a higher court directing the lower court to send up a case for review

• Requires agreement of four justices to hear the case

• Involves significant federal or constitutional question

• Involves conflicting decisions by circuit courts• Involves Constitutional interpretation by one

of the highest state courts• The Court may consider over 7,000 petitions

every year, but will only accept about 100 for full review

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Getting to Court

• The courts are the great equalizer in the federal gov’t

• However, it is very hard to get before the SC-they reject 96% of applications for cert, costs are very high, and length deters many

• About ½ of arriving petitions are in forma pauperis cases-poor person can have case heard w/o charge

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Standing to Sue

• 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 requirement is relaxed when the First Amendment is involved

• See examples on pgs.447-448

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Class-Action Suits

• Under certain circumstances a citizen may benefit from a court decision, even though they have never gone to court

• One of the most famous class-action suits was the 1954 Brown v. BOE case

• The Court’s decision did not only give Brown the right to attend a segregated school, it covered all “others similarly situated”

• Thousands of these cases are presented to federal courts every year; involving civil rights, rights of prisoners, suits against corporations, etc.

• See examples on pgs.448-449

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The Supreme Court in Action

• Most cases arrive through a writ of certiorari• Lawyers then submit briefs that set forth the

facts of the case, summarizes the lower court decision, gives the argument of that side of the case, and discusses other issues• Amicus curiae brief; see p.450

• Oral arguments are given by lawyers after briefs are submitted

• SC Justices confer w/ one another and question the lawyer then convene to debate (in secret) about the brief

• Each judge has a chance to speak and vote

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Kinds of Court Opinions

• Per curiam: brief and unsigned opinion

• Opinion of the court: majority opinion

• Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning

• Dissenting opinion: minority opinion

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Power to Make Policy

• The Courts make policy whenever they reinterpret the law or Constitution in significant ways, extend the reach of laws to cover new matters, or design remedies for problems.

• Power to declare laws unconstitutional• Stare decisis- “let the decision

stand”; principle of precedent applied to current situation

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Arguments for Judicial Activism

• Courts should correct injustices when other branches or state governments refuse to do so

• Courts are the last resort for those without the power or influence to gain new laws

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Arguments Against Judicial Activism

• Judges lack expertise in designing and managing complex institutions like school administration, prison management, environmental protection, etc.

• Initiatives require balancing policy priorities and allocating public revenues

• Courts are not accountable because judges are not elected

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Checks on Judicial Power

• Judges have no enforcement mechanisms

• Confirmation and impeachment proceedings

• Changing the number of judges• Revising legislation• Amending the Constitution• Altering jurisdiction• Restricting remedies

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Public Opinion and the Courts

• Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion

• Opinion in realigning eras may energize court

• Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally

• See pgs.456-457

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JusticeAppointedIn

Appointed By

At Age

John G. Roberts(Chief Justice)

2005 G. W. Bush

50

Elena Kagan 2010 Obama 50

Samuel A. Alito, Jr.

2006 G. W. Bush

55

Antonin Scalia 1986 Reagan 50

Anthony Kennedy

1988 Reagan 52

Sonia Sotomayor

2009 Obama 55

Clarence Thomas

1991 Bush 43

Ruth Bader Ginsburg

1993 Clinton 60

Stephen Breyer 1994 Clinton 56

Current (2010) salary for the Chief Justice is $223,500 per year, while the Associate Justices each make $213,900.

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Chief JusticeJohn Roberts

Elena KaganAnthony Kennedy

Ruth Bader Ginsburg

Clarence Thomas

Stephen Breyer

Antonin Scalia

Samuel AlitoSonia Sotomayor

Clarence Thomas

Elena Kagan

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The Roberts Court, 2010Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg