American Government The Judiciary. Debate: Bush v. Gore Supreme Court decides 5-4 to ‘stop the recounts’ ordered by Florida Supreme Court – essentially.

American GovernmentAmerican Government

The JudiciaryThe Judiciary

Debate: Bush v. GoreDebate: Bush v. Gore

Supreme Court decides 5-4 to ‘stop Supreme Court decides 5-4 to ‘stop the recounts’ ordered by Florida the recounts’ ordered by Florida Supreme Court – essentially Supreme Court – essentially declaring Bush the victor.declaring Bush the victor.

Questions:Questions: Was this judicial activism?Was this judicial activism? What role did politics play?What role did politics play?

The Judicial BranchThe Judicial Branch

Federal courts are important in U.S. due to two Federal courts are important in U.S. due to two factors:factors:

A. higher law notion of constitutionalityA. higher law notion of constitutionality Constitution = societal contractConstitution = societal contract some institution must interpret that contractsome institution must interpret that contract courts have assumed that role, because they are seen courts have assumed that role, because they are seen

as less politicalas less political

B. separation of powersB. separation of powers courts are largely independent of the other branches courts are largely independent of the other branches because, they are capable of protecting themselves because, they are capable of protecting themselves in short, courts are political actorsin short, courts are political actors

The Creation and Organization The Creation and Organization of the Federal Judiciaryof the Federal Judiciary

Article III – The United States Article III – The United States Supreme CourtSupreme Court

Article I – Congress has the Power to Article I – Congress has the Power to Establish Lower Federal CourtsEstablish Lower Federal Courts Federal District Court (94)Federal District Court (94) The Federal Courts of Appeals (12+1)The Federal Courts of Appeals (12+1)

Federal Court Organization (simplified)Federal Court Organization (simplified)

The federal courts are organized in to The federal courts are organized in to three tiers - like a pyramid. three tiers - like a pyramid.

Base: Base: Federal District CourtsFederal District Courts Each state has at least one district court and Each state has at least one district court and

no district encompass more than one state.no district encompass more than one state. There are 94 total district courts and about 665 There are 94 total district courts and about 665

judges.judges. These courts are presided over by federal These courts are presided over by federal

judges who are appointed by the president, judges who are appointed by the president, confirmed by the senate and hold office for life. confirmed by the senate and hold office for life.

Each court has a minimum of two judges and a Each court has a minimum of two judges and a maximum of about 27. maximum of about 27.

These courts hear about 280,000 criminal and These courts hear about 280,000 criminal and civil cases per year.civil cases per year.

Federal District CourtFederal District Court

Federal district courts have original Federal district courts have original jurisdiction in most, but not all, federal jurisdiction in most, but not all, federal cases. Some of these are criminal, but cases. Some of these are criminal, but many if not most cases are civil.many if not most cases are civil.

Federal district courts use both grand and Federal district courts use both grand and petite juries and cases are argued by petite juries and cases are argued by United States Attorneys, who are United States Attorneys, who are appointed by the president via senatorial appointed by the president via senatorial courtesy.courtesy.

Missouri has two federal districts: Western Missouri has two federal districts: Western & Eastern.& Eastern.

Missouri Federal DistrictsMissouri Federal Districts

Federal Courts of AppealsFederal Courts of Appeals

11 geographic circuits, DC 1211 geographic circuits, DC 12thth, 13, 13thth Court of Appeals for Federal Circuit.Court of Appeals for Federal Circuit. Court of Appellate JurisdictionCourt of Appellate Jurisdiction Hear about 40K per yearHear about 40K per year No Juries / Three Judge PanelsNo Juries / Three Judge Panels Written Briefs Written Briefs

Middle Tier: The US Court of AppealsMiddle Tier: The US Court of Appeals

Cases that are adjudicated by the federal district courts Cases that are adjudicated by the federal district courts may be appealed to one of 13 U.S. Courts of Appeals. may be appealed to one of 13 U.S. Courts of Appeals.

Twelve of these courts are regional circuit courts - that Twelve of these courts are regional circuit courts - that is, they hear cases from larger geographic areas known is, they hear cases from larger geographic areas known as circuits. as circuits.

The Thirteenth court is in Washington D.C. and The Thirteenth court is in Washington D.C. and concentrates on appeals related to civil suits against concentrates on appeals related to civil suits against the US government. These courts hear about 36,000 the US government. These courts hear about 36,000 cases per year.cases per year.

Cases are heard by three judges who largely work off Cases are heard by three judges who largely work off of written arguments known as briefs with limited oral of written arguments known as briefs with limited oral arguments on the part of attorneys. There are no arguments on the part of attorneys. There are no juries, witnesses or cross examinations. juries, witnesses or cross examinations.

Missouri is located in the 8Missouri is located in the 8thth Circuit which sits in St. Circuit which sits in St. Louis, MO. The 8Louis, MO. The 8thth Circuit hears cases for the following Circuit hears cases for the following states: Arkansas; Iowa; Minnesota; Missouri; Nebraska; states: Arkansas; Iowa; Minnesota; Missouri; Nebraska; North Dakota; South Dakota.North Dakota; South Dakota.

Top Tier: The United States Supreme CourtTop Tier: The United States Supreme Court

The Supreme Court is both a court of original and The Supreme Court is both a court of original and appellate jurisdiction.appellate jurisdiction.

Article III (section 2) outlines the original jurisdiction of Article III (section 2) outlines the original jurisdiction of the court. Most important is the supreme court's role as the court. Most important is the supreme court's role as the first and only arbitrator of legal disputes between the first and only arbitrator of legal disputes between the states. the states.

Article I grants Congress the power to establish Article I grants Congress the power to establish appellate jurisdiction for federal courts.appellate jurisdiction for federal courts.

Most cases heard by the court are on appeal from the Most cases heard by the court are on appeal from the US courts of appeals and state courts of last resort (the US courts of appeals and state courts of last resort (the highest of the state courts)- although in extraordinary highest of the state courts)- although in extraordinary circumstances the court will hear a case directly after circumstances the court will hear a case directly after resolution in district courtresolution in district court E.g. United States vs. Nixon (1974) E.g. United States vs. Nixon (1974)

The Supreme Court hears relatively few cases - The Supreme Court hears relatively few cases - approximately 150 – 200 per year out of 5000 - 7000 approximately 150 – 200 per year out of 5000 - 7000 requests for review. 97% of requests for review are requests for review. 97% of requests for review are rejected on average.rejected on average.

Article III, Section II: Article III, Section II: Supreme Court JurisdictionSupreme Court Jurisdiction

The judicial Power shall extend to all Cases, in Law and Equity, The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or State, or the Citizens thereof, and foreign States, Citizens or Subjects. Subjects.

In all Cases affecting Ambassadors, other public Ministers and In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.under such Regulations as the Congress shall make.

The United States Supreme The United States Supreme CourtCourt

How the US SC Hears CasesHow the US SC Hears Cases Writ of CertiorariWrit of Certiorari

Petition for Court to Hear the CasePetition for Court to Hear the Case Literal meaning (request for lower court Literal meaning (request for lower court

records)records) Rule of FourRule of Four Exhaust the State JudiciaryExhaust the State Judiciary Exhaust (almost always) the federal Exhaust (almost always) the federal

judiciaryjudiciary

Supreme Court: Supreme Court: Basic ProceduresBasic Procedures

Cases appealed from the states must meet two Cases appealed from the states must meet two conditions. First, they must have exhausted the conditions. First, they must have exhausted the state system. Second, they must raise federal state system. Second, they must raise federal questions - issues of constitutional principles, questions - issues of constitutional principles, federal law, etc. federal law, etc.

The court exercises total control over its docket and The court exercises total control over its docket and decides what cases to hear by the decides what cases to hear by the rule of fourrule of four

The procedures of the supreme court look much like The procedures of the supreme court look much like those in appellate courts. The nine justices hear oral those in appellate courts. The nine justices hear oral arguments and read briefs including arguments and read briefs including amicus curiaeamicus curiae briefs. briefs.

The federal government, a usual litigant in before The federal government, a usual litigant in before the court, is represented by the United States the court, is represented by the United States Solicitor General (Paul D. Clement)Solicitor General (Paul D. Clement)

Basic Procedures (con’t)Basic Procedures (con’t) Court hears oral arguments and then meets Court hears oral arguments and then meets

in private meeting to vote on case. in private meeting to vote on case. SenoritySenority Agenda settingAgenda setting

After the court decides a case by majority After the court decides a case by majority vote, a majority (typically the chief justice if vote, a majority (typically the chief justice if in the majority or the most senior justice in in the majority or the most senior justice in the majority) and minority opinion is written. the majority) and minority opinion is written.

These serve as the guide for lower courts to These serve as the guide for lower courts to handle similar cases. Because of the handle similar cases. Because of the principle of principle of Stare DecisisStare Decisis the majority the majority opinion explains the basis for subsequent opinion explains the basis for subsequent rulings. rulings.

The United States Supreme The United States Supreme CourtCourt

How the US SC Hears Cases ContinuedHow the US SC Hears Cases Continued There are several types of opinions issued by the There are several types of opinions issued by the

Courts:Courts: per curiam - decision delivered via an opinion issued in per curiam - decision delivered via an opinion issued in

the name of the Court rather than specific justices. Tend the name of the Court rather than specific justices. Tend to be short and on non-controversial issues.to be short and on non-controversial issues.

Majority opinion - opinion of the courtMajority opinion - opinion of the court Concurring opinion - written by justice who agrees with Concurring opinion - written by justice who agrees with

the majority's conclusion, but not its reasoningthe majority's conclusion, but not its reasoning Dissenting opinion - written by justice who disagrees with Dissenting opinion - written by justice who disagrees with

the majority's conclusionthe majority's conclusion The Court generally decides cases from the The Court generally decides cases from the

bottom-up.bottom-up. Amicus Curiae & likelihood of reviewAmicus Curiae & likelihood of review

Courts in PerspectiveCourts in Perspective

How Powerful are the US Federal How Powerful are the US Federal Courts?Courts? The strongest courts in the worldThe strongest courts in the world The weakest branch of government The weakest branch of government

Tools of the CourtTools of the Court

Judicial ReviewJudicial Review Marbury v. MadisonMarbury v. Madison (1803) (1803)

Exercise of JRExercise of JR Approximately 160 Federal StatutesApproximately 160 Federal Statutes Approximately 1400 State/Local Approximately 1400 State/Local

Statutes (2/3 of which date to the Statutes (2/3 of which date to the incorporation era)incorporation era)

The Federal CourtsThe Federal Courts

Article III establishes the Supreme Court. One of the major Article III establishes the Supreme Court. One of the major justifications for the court is the justifications for the court is the Supremacy ClauseSupremacy Clause which which establishes the preeminence of national over state law.establishes the preeminence of national over state law.

Congress also has the power to establish lower federal Congress also has the power to establish lower federal courts, and during the first congress the United States was courts, and during the first congress the United States was divided in to judicial districts for the establishment of divided in to judicial districts for the establishment of federal district court (there are 94 district courts in the federal district court (there are 94 district courts in the United States).United States).

Basic point: the United States has the strongest court in the Basic point: the United States has the strongest court in the world.world.

Strongest Courts Strongest Courts

Courts are powerful for several reasonsCourts are powerful for several reasons A. Ability to act as a regulatorA. Ability to act as a regulator

regularly rule on the validity of federal regulationsregularly rule on the validity of federal regulations many regulations currently not seen as valid until upheld by many regulations currently not seen as valid until upheld by

the courtsthe courts

B. Ability to invoke judicial reviewB. Ability to invoke judicial review declare acts of Congress or the president to be impermissible declare acts of Congress or the president to be impermissible

under the Constitutionunder the Constitution have done so about 160 times since 1803have done so about 160 times since 1803 have ruled state laws unconstitutional about 1,000 timeshave ruled state laws unconstitutional about 1,000 times

C. One of the most trusted institutions in governmentC. One of the most trusted institutions in government public trust is highpublic trust is high even given intrepretivist vs. activist debateeven given intrepretivist vs. activist debate

Federal Courts are LimitedFederal Courts are Limited stare decisisstare decisis

lawyers love precedentlawyers love precedent prefer stability offered by prior cases -- less disruption to society prefer stability offered by prior cases -- less disruption to society

and to reputation of the Courtand to reputation of the Court writing in 1992 case of writing in 1992 case of Planned Parenthood of Southeastern Planned Parenthood of Southeastern

Pennsylvania vs. CaseyPennsylvania vs. Casey, Justice David Souter noted, in upholding , Justice David Souter noted, in upholding Roe:Roe:

"For two decades of economic and social development, people "For two decades of economic and social development, people have organized intimate relationships and made choices that have organized intimate relationships and made choices that define their views of themselves and their places in society, in define their views of themselves and their places in society, in reliance on the availability of abortion in the event that reliance on the availability of abortion in the event that contraception should fail.... [Whatever the premises of contraception should fail.... [Whatever the premises of opposition may be, only the most convincing justification under opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."subvert the Court's legitimacy beyond any serious question."

Limits: JusticiabilityLimits: Justiciability must wait for cases to come to them - reactive, must wait for cases to come to them - reactive,

not proactivenot proactive The case must be justiciable:The case must be justiciable:

1.1. there must be a real controversy - no friendly suits, no there must be a real controversy - no friendly suits, no advisory opinions (unlike many state supreme courts)advisory opinions (unlike many state supreme courts)

2.2. case must be ripe and not moot - other avenues (state case must be ripe and not moot - other avenues (state courts, etc.) must be exhausted, injuries real – not courts, etc.) must be exhausted, injuries real – not hypothetical, etc.hypothetical, etc.

3.3. parties must have standing - they must be the ones at parties must have standing - they must be the ones at risk, government must waive sovereign immunity, etc.risk, government must waive sovereign immunity, etc.

4.4. Case must not present a political question - court must Case must not present a political question - court must see the matter as one that can be solved by judges; see the matter as one that can be solved by judges; often eliminates political matters on which the Court often eliminates political matters on which the Court has no special expertise (e.g. conundrum of War Powers has no special expertise (e.g. conundrum of War Powers Act; Bush v. Gore)Act; Bush v. Gore)

LimitsLimits limited ability to enforce rulings — on either public or limited ability to enforce rulings — on either public or

other institutionsother institutions 1. as a result, courts are rarely out of step with the Congress 1. as a result, courts are rarely out of step with the Congress

and president — see limited number of cases of judicial and president — see limited number of cases of judicial review review

2. also courts rarely out of step with the public2. also courts rarely out of step with the public The Barnum studyThe Barnum study

Court rules on matters such as abortion, contraception, Court rules on matters such as abortion, contraception, busing, etc. only as public opinion approaches or passes 50%busing, etc. only as public opinion approaches or passes 50%

sole exception = prayer in schoolsole exception = prayer in school Mishler & Sheehan – Court is not a Mishler & Sheehan – Court is not a

countermajoritarian institution.countermajoritarian institution. Result Result courts are usually yea-sayers, not nay- courts are usually yea-sayers, not nay-

sayers; legitimizers, not challengerssayers; legitimizers, not challengers

Are the Courts Political or Are the Courts Political or Above Politics?Above Politics?

The political implications of judicial The political implications of judicial decisionsdecisions ReapportionmentReapportionment

Baker v. Carr (1962)Baker v. Carr (1962)

Privacy and Abortion Privacy and Abortion Griswold v. Connecticut (1965)Griswold v. Connecticut (1965) Roe v. Wade (1973)Roe v. Wade (1973)

Political Jurisprudence?Political Jurisprudence?

Bush v. Gore (2000)Bush v. Gore (2000)

The Florida recount violates equal protection The Florida recount violates equal protection and there is no time to fix the problem.and there is no time to fix the problem.

Breyer, Ginsburg, Souter, Stevens - NoBreyer, Ginsburg, Souter, Stevens - No O’Connor, Kennedy, Rehnquist, Thomas, Scalia - YesO’Connor, Kennedy, Rehnquist, Thomas, Scalia - Yes

Bush v. Gore (USSC)Bush v. Gore (USSC)

YES YES YES YES YES NO NO NO NO

END THE COUNTING (5-4)

YES YES YES YES YES YES YES NO NO

EQUAL PROTECTION (7-2)

YES YES YES NO NO NO NO NO NO

ARTICLE 2 (3-6)

Judicial PoliticsJudicial Politics

The Nomination and Confirmation The Nomination and Confirmation Process is PartisanProcess is Partisan

Democratic Presidents Nominate Democratic Presidents Nominate Democrats to the Federal Courts, Democrats to the Federal Courts, Republican Presidents Nominate Republican Presidents Nominate Republicans to the Federal CourtsRepublicans to the Federal Courts

The Senate behaves accordingly The Senate behaves accordingly

Number of Federal Judges Number of Federal Judges Appointed by…Appointed by…

Article III Article III Judiciary Judiciary 871 871

Federal Federal JudgeshipsJudgeships

0

50

100

150

200

250

300

350

LBJ

RMN

Ford

Carter

Reagan

GHW Bush

Clinton

GW Bush

The myth of the non-political court.The myth of the non-political court.

Judges are said to be impartial, decorous and fair Judges are said to be impartial, decorous and fair and and above politicsabove politics..

Is this view correct? Is this view correct? with respect. to neutrality/impartiality?with respect. to neutrality/impartiality? role of arbitrators?role of arbitrators? in general it is vastly overstated. in general it is vastly overstated.

Judges manage social conflict as in school Judges manage social conflict as in school funding, social issues, etc.funding, social issues, etc.

The Myth of the Nonpolitical CourtThe Myth of the Nonpolitical Court

Appointment:Appointment:

The president nominates individuals to the federal courts - w/ The president nominates individuals to the federal courts - w/ senate conformation. The senate is, as we have seen, senate conformation. The senate is, as we have seen, interested in this process, but traditionally does not like to interested in this process, but traditionally does not like to fight the executive too much on court appointments. fight the executive too much on court appointments.

The President is very interested in the political views of The President is very interested in the political views of appointees.appointees.

Judges need this non-political myth because they are the Judges need this non-political myth because they are the weakest branch of government.The judiciary must rely on weakest branch of government.The judiciary must rely on the cooperation of the others, especially the other branches the cooperation of the others, especially the other branches to get anything done. to get anything done.

Powers of the CourtPowers of the Court

The supreme court has the power of The supreme court has the power of Judicial ReviewJudicial Review. That . That is, to declare laws passed by congress an the states is, to declare laws passed by congress an the states unconstitutional and therefore null and void. This is what unconstitutional and therefore null and void. This is what makes the courts so powerful.makes the courts so powerful.

Marbury v. MadisonMarbury v. Madison - 1803. - 1803.

The election of 1800 witnessed the defeat of the federalists The election of 1800 witnessed the defeat of the federalists and the election of democratic president Thomas Jefferson. and the election of democratic president Thomas Jefferson. Before leaving office Federalist president John Adams, w/ the Before leaving office Federalist president John Adams, w/ the help of the federalist dominated legislature, packed the help of the federalist dominated legislature, packed the judiciary with loads of federalist judges. Jefferson was furious, judiciary with loads of federalist judges. Jefferson was furious, and when he realized that several of the appointments had not and when he realized that several of the appointments had not been delivered he order they be cancelled. One of the been delivered he order they be cancelled. One of the appointees, Wm. Marbury, asked the court to order that the appointees, Wm. Marbury, asked the court to order that the appointments be made.appointments be made.

Judicial ReviewJudicial Review

This placed the court in a difficult position. The chief justice - John This placed the court in a difficult position. The chief justice - John Marshall - was a federalist. If he ordered the appointments, he Marshall - was a federalist. If he ordered the appointments, he risked the integrity of the court because it was likely that Jefferson risked the integrity of the court because it was likely that Jefferson would ignore the order. If he did not, he also risked the integrity of would ignore the order. If he did not, he also risked the integrity of the court by backing down. the court by backing down.

Solution.Solution. Marshall ruled that the Judiciary Act which authorized the Marshall ruled that the Judiciary Act which authorized the appointments (actually authorized the courts to order the appointments (actually authorized the courts to order the appointments) conflicted with Article III of the constitution. In appointments) conflicted with Article III of the constitution. In particular, he ruled that the court did not have jurisdiction in this particular, he ruled that the court did not have jurisdiction in this matter.matter.

The Democrats were satisfied because they won the battle. The The Democrats were satisfied because they won the battle. The court, by giving a little ground on a minor question protected itself court, by giving a little ground on a minor question protected itself and established the principle of judicial review which was very and established the principle of judicial review which was very slowly developed over the next century or so. => Greatly slowly developed over the next century or so. => Greatly strengthened the court.strengthened the court.

Judicial ReviewJudicial Review

Between 1803-mid 1990's the court has only held Between 1803-mid 1990's the court has only held about 160 federal statues, 1000 state statutes about 160 federal statues, 1000 state statutes and 120 municipal statues to be unconstitutional.and 120 municipal statues to be unconstitutional.

Point; the supreme court exercises judicial Point; the supreme court exercises judicial review, but not frivolously.review, but not frivolously.

Checks to prevent abuse:Checks to prevent abuse: 1. Constitutional Amendment1. Constitutional Amendment 2. Impeachment of Judges2. Impeachment of Judges

Important Judicial DecisionsImportant Judicial Decisions

ReapportionmentReapportionment. . Baker Vs. CarrBaker Vs. Carr (1962), and (1962), and other cases => one man one vote. Shifted other cases => one man one vote. Shifted political power from rural to urban areas.political power from rural to urban areas.

Important Judicial DecisionsImportant Judicial Decisions

Abortion Abortion

Beginning in the 1960's the court began to expand Beginning in the 1960's the court began to expand rulings on right to privacy - nothing in the rulings on right to privacy - nothing in the constitution directly deals with privacy, but there constitution directly deals with privacy, but there are several related ideas - search and seizure, (for are several related ideas - search and seizure, (for example), example),

Griswold v. ConnecticutGriswold v. Connecticut (1965) the court declared a (1965) the court declared a Connecticut law outlawing the sale and distribution Connecticut law outlawing the sale and distribution of contraceptives to be unconstitutional. By 1973 of contraceptives to be unconstitutional. By 1973 the court ruled (the court ruled (Roe v. Wade Roe v. Wade (1973)). the right of (1973)). the right of privacy extended to abortion. (privacy extended to abortion. (Casey vs. Planned Casey vs. Planned parenthood of Southeastern Pennsylvaniaparenthood of Southeastern Pennsylvania (1992)) (1992))

The Court and Democratic LegitimacyThe Court and Democratic Legitimacy

The court is political - how can it be The court is political - how can it be legitimized under democratic theory?legitimized under democratic theory?

Court justices are not elected and serve Court justices are not elected and serve for life. Formally, there is very little for life. Formally, there is very little participation of the American people in the participation of the American people in the selection of federal judges.selection of federal judges.

The Court and Democratic LegitimacyThe Court and Democratic Legitimacy

Possible answers:Possible answers:

1. The court is not legitimate and, under democratic 1. The court is not legitimate and, under democratic theory, there is no justification for its powers. theory, there is no justification for its powers.

2. Counter argument: Too much emphasis is placed on 2. Counter argument: Too much emphasis is placed on the ideal of pure democratic theory. Look to the original the ideal of pure democratic theory. Look to the original justifications of the founders, who, as we know, were justifications of the founders, who, as we know, were terribly suspicious of mass participation in government terribly suspicious of mass participation in government and sought to find way to insulate the political process and sought to find way to insulate the political process from ‘momentary passions’ and abusive majorities from ‘momentary passions’ and abusive majorities associated with large polities. associated with large polities.

Does a democratic polity requires an undemocratic branch Does a democratic polity requires an undemocratic branch of government?of government?

Supreme Court: Supreme Court: Historical PerspectiveHistorical Perspective

I. History of Supreme Court can be divided into three periods, I. History of Supreme Court can be divided into three periods, distinguished by the Court's prioritiesdistinguished by the Court's priorities

PERIOD 1: 1789 to Civil WarPERIOD 1: 1789 to Civil War period of nation buildingperiod of nation building focus on defining the role of the new federal government and its focus on defining the role of the new federal government and its

relations with the statesrelations with the states KEY CASESKEY CASES

a.a. Marbury vs. Madison Marbury vs. Madison b. Martin vs. Hunter's Lesseeb. Martin vs. Hunter's Lessee c.c. McCulloch vs. Maryland McCulloch vs. Maryland d. Gibbons vs. Ogden d. Gibbons vs. Ogden e.e. Dartmouth College v. Woodward -- "nor shall any person ... Dartmouth College v. Woodward -- "nor shall any person ...

be deprived of life, liberty, or property, without due process of law, be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just nor shall private property be taken for public use, without just compensation"compensation"

f.f. Dred Scott vs. Sanford - the Dred Scott case Dred Scott vs. Sanford - the Dred Scott case

Period 2: Civil War to New DealPeriod 2: Civil War to New Deal

SECOND PERIOD - Civil War to New DealSECOND PERIOD - Civil War to New Deal period of economic-based decisionsperiod of economic-based decisions focus of Court focus of Court strong attachment to and defense of strong attachment to and defense of

private propertyprivate property Lochner v. New YorkLochner v. New York

based on an economic interpretation of 14th amendment, based on an economic interpretation of 14th amendment, no deprivation of "life, liberty or property, without due no deprivation of "life, liberty or property, without due process of law" process of law" But -- 14th was intended to protect newly-freed black slavesBut -- 14th was intended to protect newly-freed black slaves used by a conservative court to protect property owners - via used by a conservative court to protect property owners - via

review government regulations on businessesreview government regulations on businesses called "substantive due process" - courts reviewed the called "substantive due process" - courts reviewed the

substance of legislation rather than the process of legislatingsubstance of legislation rather than the process of legislating Court also strictly limited the other major clause of the 14Court also strictly limited the other major clause of the 14thth

amendment: equal protectionamendment: equal protection -in -in Strauder v. West VirginiaStrauder v. West Virginia (1880) (1880)

Period 2 (con’t)Period 2 (con’t) Court became the arbiter of government attempts Court became the arbiter of government attempts

to regulate the economyto regulate the economy limited the ability of the Congress to control the economylimited the ability of the Congress to control the economy using substantive due process, Court struck many using substantive due process, Court struck many

governmental regulatory efforts during the late 1800s governmental regulatory efforts during the late 1800s and early 1900sand early 1900s

Examples:Examples: -ruled income tax unconstitutional-ruled income tax unconstitutional -limited government efforts to break up monopolies-limited government efforts to break up monopolies -limited government efforts to regulate child labor-limited government efforts to regulate child labor -prevented government efforts to place limits on length of -prevented government efforts to place limits on length of

work weekwork week -restricted Interstate Commerce Commission efforts to set -restricted Interstate Commerce Commission efforts to set

railroad ratesrailroad rates

Period 3: Post New DealPeriod 3: Post New Deal THIRD PERIOD - Post New DealTHIRD PERIOD - Post New Deal Court's focus shifts from economic regulation to Court's focus shifts from economic regulation to

issues of personal and political libertyissues of personal and political liberty Substantive due process comes to a head during Substantive due process comes to a head during

the New Dealthe New Deal a. President Roosevelt frustrated by Supreme Court in his a. President Roosevelt frustrated by Supreme Court in his

efforts to expand federal efforts to combat the Great efforts to expand federal efforts to combat the Great DepressionDepression

Court struck many recovery programs as burdensome to Court struck many recovery programs as burdensome to businessbusiness

Court Packing: FDR attempts to overcome Court Court Packing: FDR attempts to overcome Court by expanding its numbers by expanding its numbers one new justice for each current justice over the age of one new justice for each current justice over the age of

70, up to a maximum total of 15 justices70, up to a maximum total of 15 justices

Period 3 (con’t)Period 3 (con’t) Court and people vigorously disapprove --- Court and people vigorously disapprove ---

seen as an attack on the integrity of the seen as an attack on the integrity of the court for political reasonscourt for political reasons Court-packing effort fails, but sends a message Court-packing effort fails, but sends a message

to the justices --- change or face further political to the justices --- change or face further political reprisalsreprisals

Scheme fails, but FDR gets resultsScheme fails, but FDR gets results one justice (Owen Roberts) suddenly changes one justice (Owen Roberts) suddenly changes

his voting behavior, giving the Court a small his voting behavior, giving the Court a small liberal majority liberal majority

- The “Switch in Time that Saved Nine”- The “Switch in Time that Saved Nine” -1936, in case of West Coast Hotel vs. Parrish, -1936, in case of West Coast Hotel vs. Parrish,

Court for first timeupheld a minimum wage law Court for first timeupheld a minimum wage law --- end of substantive due process--- end of substantive due process

Period 3 (con’t)Period 3 (con’t) Since then, little Court interference in economic Since then, little Court interference in economic

regulationregulation Instead, a focus on political and personal rightsInstead, a focus on political and personal rights

especially under the leadership of Chief Justice Earl especially under the leadership of Chief Justice Earl Warren (former GOP governor of California; appointed by Warren (former GOP governor of California; appointed by Ike)Ike)

Brown vs. Board of Education of TopekaBrown vs. Board of Education of Topeka Griswold vs. Connecticut Griswold vs. Connecticut Engel v. Vitale & Murray v. CurlettEngel v. Vitale & Murray v. Curlett

Justice Tom Clark wrote, "Religious freedom, it has long Justice Tom Clark wrote, "Religious freedom, it has long been recognized that government must be neutral and, been recognized that government must be neutral and, while protecting all, must prefer none and disparage while protecting all, must prefer none and disparage none."none."

Period 3 (con’t)Period 3 (con’t)

Reynolds v. SimmsReynolds v. Simms Even under subsequent, more conservative Even under subsequent, more conservative

chief justices (e.g., Warrenchief justices (e.g., Warren Burger, William Rehnquist), Court has Burger, William Rehnquist), Court has

remained active in these areas:remained active in these areas: -Burger (Nixon's appointee) wrote busing cases-Burger (Nixon's appointee) wrote busing cases -1973 - Roe v. Wade - written by Nixon -1973 - Roe v. Wade - written by Nixon

appointee Blackmunappointee Blackmun -1989 - Court upholds legality of flag burning, -1989 - Court upholds legality of flag burning,

with help of two Reagan appointees: Kennedy with help of two Reagan appointees: Kennedy and Scaliaand Scalia

Impact of Expanding Judicial Power Impact of Expanding Judicial Power on Presidencyon Presidency

A.A. Judicial activism has limited president's Judicial activism has limited president's powerpower

B.B. Courts are part of new iron triangle: Courts are part of new iron triangle: bureaucracy, interest groups, courtsbureaucracy, interest groups, courts

C.C. Court role = establishing rights (defined as Court role = establishing rights (defined as moral/legal trumps); hard to object to since moral/legal trumps); hard to object to since they are often seen as protecting the they are often seen as protecting the powerlesspowerless

D.D. But the impact is to decrease presidential But the impact is to decrease presidential discretion, rival president in agenda setting, discretion, rival president in agenda setting, and contribute to single issue politics and contribute to single issue politics

E.E. All these make presidential leadership more All these make presidential leadership more difficultdifficult