14 the judiciary. copyright © houghton mifflin company. all rights reserved.14 - 2 map 14.1: u.s....

14

The Judiciary

Copyright © Houghton Mifflin Company. All rights reserved. 14 - 2

Map 14.1: U.S. District and Appellate Courts


Early History of the CourtInstitutional Legitimacy1. Defeat of politically-motivated impeachment of Justice Chase- judicial independence

2. Issuance of a single majority opinion that enabled the Court to speak with one voice

3. Judicial Review established in Marbury v. Madison (1803), creating an equal partnership with other branches

Decision-making eras1. 1787-1865: National Supremacy, Federal Legitimacy, and Slavery

a. Martin v. Hunter’s Lessee (1816)- binding interpretations of federal law on state courts

b. McCulloch v. Maryland (1819)- federal supremacy. However, not applied in practice until after civil war. In Dred Scott v Sanford (1857), federal law overturned for only 2nd time. Court’s reluctance to use Judicial Review made its use uncertain.

2. 1865-1937: Relationship between Government and Economya. Court acts to support property rights under the 14 th Amendment’s Due Process clause (intended?)

b. Laissez-faire. However, 80% state regs. upheld 1887-1910. Inconsistencies became common

c. “Switch in time that saves nine.” NLRB v. Jones and Laughlin (1937), Carolene Products (1939)

3. 1938-present: Protection of Civil Libertiesa. Personal liberties protected, i.e. free speech, racial integration. Such cases less today (Reagan, Bush)

4. 1997- present: Federalism revisited?a. Ex. Printz v. U.S. (1997): dual federalism? Contrast with South Dakota v. Dole (1986)


Table 14.1: Chief Justices of the United States


“Deciding to Decide”Steps in the Decisionmaking Process- Strategery?1. Dispute pyramids- 10% of all cases make it to court

2. Granting Certiorari- 8,000 appeals annually, <100 cases heard per Rehnquist terma. Impact on no cert.- case stands (MA gay marriage). Implications?

3. Oral Arguments- organized chaos, strategic questioninga. 30 min. per side, Solicitor General gets 10 automatically

b. Rarely 30 seconds elapse before interruption

c. Attack or lead attorney

4. The Conference- seniority, decorum, and influencea. Opinion writers chosen, based on make up of majority and seniority

1. Majority, concurring, and dissenting opinions

b. Voting decisions: attitudinal (Segal and Spaeth) or strategic (Epstein and Knight)

c. “Lobbying?” Justices insist not; however, Kennedy’s “switch” 10 hrs. before Bush v. Gore

5. The decision- quorum with 6, ties go to previous courts’ decision. a. Only amicus curaie briefs with statistical significance: SG’s

6. Greater fragmentation in voting: 19th c- 90% unanimity. 1995- 38.7%a. Concurring opinions are important in deciding whether Court is creating precedent (Brown)

b. “Occasionally,” Lawrence Baum explains, “ . . . no opinion gains . . . majority . . . [therefore] there is a decision but no authoritative interpretation of the legal issues in the case.” (Gretz)


Table 14.2: How Partisanship Affects Judicial Attitudes


Strategic Retirements?See the following:

1. “Strategic Retirements” p. 423

2. “Litmus Test” p. 414

3. “What Would You Do?” p. 425

4. Note Bene:a. Civil vs. Criminal law distinction

b. Burdens of guilt for juries1. Beyond a reasonable doubt (100%) vs. preponderance of the evidence (50 + 1%)

2. De facto vs. De Jure segregation3. Senatorial Courtesy

4. In forma pauperis and Gideon v. Wainright (1963)

5. Fee shifting, standing, sovereign immunity, Per curiam, stare decisis


Figure 14.1: Female and Minority Judicial Appointments, 1963-2000

Source: Harold W. Stanley and Richard Niemi, Vital Statistics on American Politics, 2001-2002 (Washington, D.C.: Congressional Quarterly Press, 2001), table 7.5.


Figure 14.1: Female and Minority Judicial Appointments, 1963-2000 (cont’d)



Table 14.3: Supreme Court Justices in Order of Seniority, 1999


Figure 14.2: The Jurisdiction of the Federal Courts


Figure 14.3: Patterns of Public Confidence in the Court

Source: Updated from The Gallup Poll: Public Opinion 1991 (Wilmington, Del.: Scholarly Resources, Inc., 1992), 213.


The Power of the Federal JudiciaryStrict Constructionist Approach- judges should confine themselves to applying those rules that are stated clearly or

implied by the Constitution

Activist Approach- judges should discover the general principles underlying the constitution and amplify

those principles on the basis of some moral or economic philosophy. Today: activists are liberals; 1930’s: opposite was true.

Barriers to getting to court1. Standing

a. Indigence

b. Fee shifting

c. Class action suits

2. Sovereign immunity

3. Political questions

4. Remedies

Powers of the Court- not “too many lawyers”1. Provide solutions to problems

2. Have increased in power with government

Checks on the Court- political appointments to S. Ct. have largely failed

14 the judiciary. copyright © houghton mifflin company. all rights reserved.14 - 2 map 14.1: u.s....

Documents

federal legitimacy

federal supremacy

judiciary slide

property rights

judicial review

court acts

state courts b

court institutional