AP GOPO Chapter 14 The Courts. Federalist #78 The judicial branch is by far the weakest branch SCOTUS only has the power to judge, not to act Can NOT.

AP GOPO

Chapter 14

The Courts

Federalist #78

• The judicial branch is by far the weakest branch

• SCOTUS only has the power to judge, not to act

• Can NOT execute law w/o EXECUTIVE Branch

• Can NOT fund law w/o Legislative Branch

Fed 78

• Political Rights are LEAST threatened by the Judicial Branch

• Judicial Review is not in the Constitution but it is referenced in Fed 78

• If you allow the courts to declare acts void/unconstitutional then too much pwr?

Fed #78

• SCOTUS too much Pwr? NO Says Hamilton

• The Constitution is superior to any law

• The judges will simply act as referees– Is the law Constitutional or isn’t it?

Robert’s Court

The Common Law Tradition– English law is based on common law.

•Common law is judge-made law based initially on the prevailing custom and eventually on legal precedent.

Stare decisis, which means to stand on decided cases.

Plessy V Fergusson & Stare Decisis

Roe V Wade & Stare Decisis

Sources of American Law

– Constitution - SCOTUS is only Court listed•Federalist #78 (Hamiliton

discussed a SC that would be PASSIVE; Judicial Review would allow the will of the people over the will of the legislature)

– Statutes and Administrative Regulations (Created by Congress)

– Case Law (Court Case)

The Federal Court System

– Basic Judicial Requirements•Jurisdiction - This is the authority

to hear and decide cases. The Constitution says that the federal courts have jurisdiction in cases that meet one of the following criteria:

–The case involves a federal question

–The case involves diversity of citizenship

Standing to Sue

Who is entitled to bring a suit?

– Known as…Standing to Sue– Can you sue the govt just because you do

not like how and where they spend money?

• NO

The Federal Court System

Types of Federal Courts– U.S. District Courts - Judges Approved by the

Senate – ADVICE & CONSENT– Senatorial Courtesy – President will meet with Senator of same party in that state• U.S. District Court (MN)

– U.S. Courts of Appeals (13 Total; MN is in 8)– The United States Supreme Court(5 now 9)– Specialized Federal Courts and the War on

Terrorism• The FISA Court (National Security/Wiretaps)• Alien Removal Courts

Bork

Roberts

Sotomayor

Sandra Day O’Conner

Breyer

Supreme Court

• Appointed by the President

• Approved by a majority of the Senate (51)

• Senate Judiciary Committee conducts public hearings

Judiciary Committee Hearing

Thomas Controversy

U.S. Attorneys

• http://www.nytimes.com/2007/02/26/opinion/26mon4.html

The Supreme Court

• Original Jurisdiction– Cases affecting foreign diplomats– Cases in which the state is a party

Supreme Court

• Appellate Jurisdiction– Writ of Certiorari -attorneys will petition

the SC to appeal the lower courts ruling– 90% of the petitions are denied by the SC– ONLY 10% of appeals are granted

Certiorari– ACLU has been influential in appealing SC

SCOTUS

• Supreme Court Webpage

Supreme Court

• Rule of Four - 4 of 9 agree it moves to entire SC - “granted certiorari”

• Friday Conference - conduct an informal vote on case that they heard

• Clerks then prepare a draft opinion

Recent Cases

• SCOTUS

• Cornell Law School

• OYEZ

Geographic Boundaries of Federal District Courts and Circuit Courts of Appeals

Parties and Procedures– Plaintiff, the person or organization that initiates a

lawsuit. – Defendant, the person or organization against

whom the lawsuit is brought. – Litigate, to engage in a legal proceeding or seek

relief in a court of law; to carry on a lawsuit. – Amicus Curiae brief, Latin for “friend of the court

– a brief filed by a third partywho is not directly involved in the litigation but who has an interest in the outcome of the case.

– Procedural Rules• Civil contempt is failing to comply with a court’s

order for the benefit of another party. Criminal contempt is obstructing the administration of justice or bringing the court into disrespect.

Which Cases Reach the Supreme Court?

• When two lower courts are in disagreement. • When a lower court’s ruling conflicts with an

existing Supreme Court ruling. • When a case has broad significance (as in

desegregation or abortion decisions).• When a state court has decided a substantial

federal question.• When the highest state court holds a federal

law invalid, or upholds a state law that has been challenged as violating a federal law.

• When a federal court holds an act of Congress unconstitutional.

• When the solicitor general is pressuring the Court to hear a case.

Solicitor General

• Solicitor General

Cases before the Court–Writ of certiorari. To issue a writ, a

minimum of four justices must agree that the case should be heard by the Supreme Court (the “rule of four”).

–Deciding Cases• Once the Court has decided to accept a case,

both parties in the case will submit legal briefs and (usually) make oral arguments.

• If the Court is unanimous in the ruling, one justice will be assigned to write the opinion of the Court. If the justices are divided on the reasoning of the outcome, there will be a majority opinion and dissenting opinions. CJ will assign who writes op.

Opinions

• Majority - rule of 5 or more

• Concurring - agree with Maj. BUT for other legal reasons

• Dissenting - disagree with the majority

The Selection of Federal Judges

– Judicial Appointments•Federal District Court Judgeship

Nominations•Federal Courts of Appeals

Appointments•Supreme Court Appointments

– Partisanship and Judicial Appointments– The Senate’s Role (Senatorial

Courtesy)

Policymaking and the Courts

– Judicial Review: the power of the courts to determine whether a law or action by the other branches of government is constitutional - NOT in the Constitution

– Marbury v Madison –established Judicial Review

– SCOTUS will answer federal questions not political

– What about redistricting? Political?– Baker v Carr - = Protection Clause 14th

Amd – thus it is a Federal Question

Strict vs Broad

– Judicial Activism and Judicial Restraint– Strict versus Broad Construction

• Strict construction, a judicial philosophy that looks to the “letter of the law” when interpreting the Constitution or a particular statute.

• Broad construction, a judicial philosophy that looks to the context and purpose of a law when making an interpretation

Ideology and the Rehnquist Court

– The Rehnquist Court had attempted, to a limited degree, to restore states’ rights. Notably, the Court has limited the rights of citizens to sue their own states in federal courts.

– The Court has been relatively cautious on civil rights issues, ruling that affirmative action is acceptable but within strict limits. One striking ruling in support of the civil rights of gay men and lesbians, however, was the abolition of anti-sodomy laws in 2003 through Lawrence v. Texas.

Courts

• Judicial Activist - judge/court that wants to make policy or law as well as interpret

• Judicial Restraint - judge/court that wants to only interpret law

• Dual Courts - Federal & State Courts

What Checks Our Courts?

–Executive Checks• Enforce judicial decisions through the use

of the bureaucracy• May refuse to implement a decision. More

frequently, presidents use their power of appointment to check the judiciary.

–Legislative Checks• Constitutional amendments• Revision of laws

–Public Opinion

Judicial Traditions and Doctrines

–To a certain extent, the courts also check themselves.

–Hypothetical and Political Questions.• The tradition of refusing to adjudicate

hypothetical questions serves as one check. • The doctrine that many issues (political

questions) ought to be resolved by the elected branches of government is also a restraint.

–The Impact of the Lower Courts.• If lower courts dislike a Supreme Court

ruling, they cannot overturn it but can seek to apply it in as limited a fashion as possible.

Landmark Court Cases

• McCulloch v Maryland - states cannont interfere with or tax legitimate activities of the federal government

• Griswold v Connecticut - banning contraception was Unconstitutional (privacy)

Supreme Court

• Roe v Wade - abortions were to be legal

Landmark Court Cases

• Mergens Case - Religious groups can be allowed in School

• Texas v Johnson - flag burning is protected

• Miranda v Arizona - informed of rights

• Lee v Weisman - NO prayer at Grad.

Court Cases

• Planned Parenthood v Casey - parental permission for abortion

• Brown v Board - Separate is NOT =

• Gesber v Lago Vista - school district must know about the misconduct in order for damages to be awarded

Court Cases

• Doe v Renfrow - Sniffing Dogs does not constitute a search

• Karr v Schmidt - Long Hair is not protected under the 1st Amd - Schools can force haircuts

• Plessy v Ferguson - Separate IS =

Court Cases

• Tinker v Des Moines - wearing black arm bands is Constitutional

• Goss v Lopez - 14th Amd/Due Process applies to Education

• Engle v Vitale - School Issued Prayer is UNconstitutional

Court Cases

• Bethel School v Fraser - freedom of speech can be limited

• Hazelwood v Kuhlmeier - Schools can censor school newspapers

• Vernonia School v Acton - students in Extracurricular can have drug tests

Court Cases

• New Jersey v T.L.O. - Reasonable Suspicion for School Searches

• West Virginia v Barnette - students do not have to salute the flag

• Davis v Monroe County Board - schools do not have to pay damages for teasing

Court Cases

• Wisconsin v Yoder - Amish students can opt out of of school prior to 16