This time it’s judicial!

US - judges play a large role in making public policy

Judicial review - checks & balances Expanding rights & entitlements during 60s

& 70s - controversial - Federalist #78 Britain - Parliament is supreme over courts Australia, Canada, Germany, India -

independent judiciary

Strict constructionist - judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution - Scalia, Thomas

Activist Approach - Loose Constructionist - judges should discover the general principles underlying the Constitution & its vague language amplifies those principles on the basis of some moral or economic philosophy & applies them to cases - Brown 1954, Roe 1973

50 yrs ago - judicial activists tended to be conservative & strict constructionist judges were liberal - today the opposite is true - Breyer, Ginsburg, Stevens

Traditional - Restraint - judges find & apply existing law

Federalist #78 - “least dangerous branch to political rights”

Hamilton - decide when law is contrary to Constitution but was not supposed to augment but confine

Proactive - Activist - judges do not only find but make the law

Increased b/c more access to courts to hear case

Increased in proportion to the increase the whole gov’t experienced

To answer questions regarding the nation-state relationship

Chief Justice John Marshall - nat’l law was supreme & judicial branch had right to judicial review but must work within precedent (stare decisis)

Marbury v. Madison 1801- judicial review McCulloch v. Maryland 1819 - nat’l gov’t

supreme Tension between Jeffersonian Republicans

(states’ rights) v. Federalists Question of slavery - Taney (state’s rights

appt by Jefferson) & Dred Scott 1857

Question about property arises - Court dedicated to protecting private property

Ex: struck down federal income tax (1895), limited ICC (Interstate Commerce Commission) power to railroad rates

Ex: allowed for many state regulations (state mine safety laws)

Old SC Chambers in US Capitol

Protect black claims to citizenship from hostile state action, protect private property & corporations from unreasonable state actions

Court constantly dealing w/ gov’t regulations on business

1880s-1890s - judicial activism born as courts are arbiter of what kind of regulation was permissible

Supportive of private property but unsure how to draw line between reasonableness & unreasonable regulation

14 & 15th Amendments - construed narrowly to give blacks limited benefits - ex: segregation in schools, buses, etc

Plessy v. Ferguson

Personal liberty v. social equity & potential conflicts between the 2

Switch from restricting state or federal power to regulate to restricting gov’t laws that violated personal political liberties

FDR - “Court Packing” - not passed Still questioning federal power over

commerce - 1990 - Free School Zones Act

Earl Warren - start of an activist court Former Gov. of California Was nominated by Eisenhower as a conservative Brown v. Board

14th Amendment Gideon v. Wainwright

6th Amendment Miranda v. Arizona

6th Amendment Loving v. Virginia

Overturned 1924 Racial Integrity Act Permitted interracial marriages

Constitutional courts - serve during “good behavior” & no salary reduction - district courts (94) & courts of appeal (12)

Legislative Court - set up by Congress w/ judges w/ fixed terms subject to removal & salary reduction

Party background has some influence - Democratic judges - more liberal than Republican ones

But ideology does NOT determine behavior always (Ike & Warren, Bush ‘41 & Souter)

Reagan nominates ultra-conservative Bork to S.C.—Ruled against abortion in Rosemary v. Baby

Warren Bork

Senatorial Courtesy - normally President nominates only persons recommended by the senior senator from the state where the district is located

Litmus Test - test for ideological purity for judges that influences appt.

Trends - 140 nominees to SC - 27 rejected by Senate Most recently: Harriet Miers

Filibustering judicial appts a new practice?

2 types of federal jurisdiction Federal question cases - under

Constitution, US laws, & treaties Diversity cases - cases involving citizens of

different states Dual sovereignty doctrine - state & federal

authorities can prosecute the same person for the same conduct

Did not want local authorities to block prosecution of an accused person who has their sympathy (ex: black lynchings in South or to secure both have jurisdiction)

How they hear a case Writ of Certiorari - lower court petitions

higher court for review in which a federal or constitutional question has been raised (rule of 4)

2 or more federal circuit courts of appeal have decided the same issue in different ways

Highest court in state held a federal or state law in violation of the Constitution or has upheld a state law against the claim that it is in violation of the Constitution

In forma pauperis - hear petition for free v. $300 fee

Brief presented by lawyer for normally no longer than 1/2 hour (Because the justices take vitamins at 2, dinner at 4, and bedtime by 5…cuz they’re old…get it???

Amicus Curiae brief - allow justices to know where interest groups stand on a case but claim not really influenced by this

World of lawyers & law profs can help shape the conclusions

Per curiam opinion - brief & unsigned Opinion - if SC chief justice in majority, he/she

writes this Concurring opinion - who agree but for

different reasons Dissenting - stare decisis, remedy, political

question - being to another branch of gov’t to decide

Fee shifting - plaintiff to collect its loses from the defendant if he/she loses

Standing - right to have case brought & heard - it is easier to acquire standing

Sovereign immunity - can’t sue federal gov’t w/o its consent

Class action suit - others benefit from one ruling (Brown)

No police force or army Senate confirmation of judicial appts by 51%

vote Impeach judges Congress determines # of judges (can

increase) Amend the Constitution (16th Amendment -

income tax) Decide what the entire jurisdiction of the

lower & appellate jurisdiction of the SC shall be

Public opinion - sensitive to elite opinions