Supreme Court Building

Supreme Court

Holy temple with priests wearing black robes. Very strange in a democracyPerception of Judges as non-politicalWhat role should an unelected institution play in a democracy?

Constitutional Debate

Hamilton, Fed #78the least dangerous branchholds neither the purse nor the swordLifetime appointment

Brutus, Anti-federalistunelected judiciary no room for appeal all powerful expansive judiciary which will subvert state rights

Imperial Judiciary or Least Dangerous Branch?

What is judicial review?Can the Appeal and Circuit courts exercise judicial review?Are there any constitutional limits on judicial review?Can congress or president overturn ruling with 2/3rds vote? 3/4ths votes?Does it happen very often? Why?

How does a case get to the Supreme Court?

How many cases does the Supreme Court hear per year?What procedure do judges use?What happens if Supreme Court does not hear a case?Why do the justices agree to hear one case and not another?How much discretion do they have?What are “political questions”?

How the Court DecidesOral argumentConferenceOpinion writingForming a majority

Brown v. Board of EducationWhat are you doing for LunchCall me a second rate intellect will you

Dissents and concurring opinionsRemedies

How do Justices decide?Leaning Left

David H. Souter, Stephen G. Breyer and Ruth Bader, Ginsburg voted together 62%

Leaning RightAnthony M. Kennedy, Sandra Day O'Connor and William H. Rehnquist voted together 64 %

LeftJohn Paul Stevens dissents on ½ of cases

Right Thomas and Scalia voted together 82%

Confirmation MessOriginal Intent/Judicial RestraintLimits of Judicial Power

Nominating SC Justices

What is the constitutional process?How and why has it changed in recent years?The kabuki dance of “advice and consent”

Clarence Thomas- I have never thought about Roe v. Wade. If I did though, I wouldn’t tell you.

Start of the Retirement/Death Watch

SC’s Appointment Process

President nominates, Senate confirms based on “advice and consent”

Constitution is removed from political processNot elected; Senate not house

Process has changed, become more politicalNixon southern strategy, Reagan Relig Right Litmus tests for appointmentsCampaigns for confirmation

Litmus test for SC Nominees

NoJudicial skillsUndermines constitutional systemNo reason to treat court’s decisions as authoritative

YesEveryone else is doing itProcess has always been politicalIndependence comes after nomination

Consequences of Confirmation Mess

The kabuki dance of “advice and consent”Clarence Thomas- I have never thought about Roe v. Wade. If I did though, I wouldn’t tell you.

Increased delaysReduced activityRobo or Techno JudgesThurgood Marshall vs. Clarence Thomas

Political Checks on Judiciary

PresidentsCongress

The Tom Delay viewJudicial Vigilantes

How have judicial conservatives attempted to restrain the court?

Interpreting the Constitution

What does original intent mean? Judicial restraint?How do you identify original intent?Why should judges use original intent?What are the arguments against original intent? Do conservative justices practice what they preach?

Brown v. Board of Education

How did Justices take political considerations into account?Why did they do it?What were consequences?

Implementation

Courts have few tools to force compliance with rulingsImplementation through the Courts

Gideon v. Wainwright

Implementation through statesEngel v. Vitale Brown v. Board

Limits on Judicial Review

Are Self ImposedJudicious use of power

Refuses to get involved in “Political questions”Delays rulings till controversy dies down

Roche-- “The court’s power has been maintained by a wise refusal to employ it in unequal combat”

Conclusion

the least dangerous branch or an imperial judiciary?

The Tom Delay viewBut . . .

a government of limited powers a written constitution the court exercises a good deal of restraint possible to impeach judges