Chapter Topics Courts and Government Courts as Legal Institutions Courts as Political Institutions Courts and Controversy.

Chapter Topics

Courts and Government

Courts as Legal Institutions

Courts as Political Institutions

Courts and Controversy

• Political Science

…is the systematic study of government and politics.

• Courts are the third branch of government

• Courts are different from and similar too the other branches of government

• Judicial Process discusses the legal and political characteristics of law and courts

Courts and Government

Courts and the Constitution

• Courts are charged with interpreting Constitutions

Judges on the US Supreme Court interpret the US Constitution (e.g., Roe v. Wade 1973)

Judges on state supreme courts interpret state constitutions (e.g. Does the MA Constitution require recognizing same-sex marriages?)

Courts and Federalism

• Courts are divided along federal and state lines. The relationship between federal and state power is frequently controversial.

The US Supreme Court can declare any law unconstitutional -- sometimes these are state/local laws

• Brown v. Board of Education (1954) declared Topeka, KS actions unconstitutional

• Controversial decisions continue today – e.g. Death penalty restrictions

Courts and the President

• Presidents view the courts as part of their political agenda. They appoint judges and their lawyers bring cases and defend the president in Court.

• there is frequently disagreement about who should be judge

• there is tension between the president and courts (e.g., Wiretapping judgment)

• Governors and mayors also use the courts to advance their policy objectives.

Courts and Legislatures

• Courts and legislatures compete for institutional balance.

• courts interpret and question the legality of legislation

• legislatures control the jurisdiction of courts and influence their composition

Courts and Elections

• Courts are frequently involved in election controversies.

• deciding what candidates may say (Republican Party of Minnesota v. White 1992), how much they can spend and many other election laws

• deciding how votes will be counted (Bush v. Gore 2000)

• Elections affect the judiciary too, most judges are directly elected by voters.

Courts and Political Parties

• Political parties are interested in having their partisans appointed to judgeships.

• the federal judicial nominating and confirmation process has become very partisan

• State judicial selection systems may be heavily influenced by partisan politics even though judicial selection is supposed to be nonpartisan.

Courts and Interest Groups

• Interest groups are a powerful force in American politics—no less so in relation to law and courts. Interest groups:

• file lawsuits

• donate money to judicial election campaigns

• issue statements about how they think the law should be interpreted and cases decided

Courts and Public Opinion

• Courts depend greatly on their legitimacy. Possessing neither the “purse nor the sword” they need public support.

• Does public opinion affect the judiciary or does the judiciary affect public opinion?

• The jury is one link between courts and public opinion.

• JP examines the makeup, procedures and the decision-making on juries

Courts and the Media

• The media determines much of what we know about judges, juries, lawyers and litigants.

• Should cameras be allowed in the courtroom?

• Is a “fair” trial possible in high profile cases?

• The popular media also affect what we know (or think we know) about the judiciary – Judge Judy, CSI, Law and Order

Courts as Legal Institutions

• When you hear “law” you often think of “courts”—but courts involve more than law.

• The legal system encompasses an array of governmental institutions, key actors, and other participants.

• Three concentric circles can be used to describe the elements of the legal system.

Institutions of Law (Inner Ring)

• The innermost ring is made up of the institutions of law: law and courts.

• Law is a body of rules, enacted by public officials and backed by the force of the state.

• Courts are places where judges work.

• Courts decide disputes based on law.

Institutions of Law (Inner Ring)

• All three branches of government are involved in deciding what the law is (legislative, executive, judicial)

• Courts do not just decide law—they make it too. They are involved in fitting law to the needs of a dynamic society.

• There are more than 17,000 courts in the United States

Interpreters of Law (Middle Ring)

• The interpreters of law include primarily lawyers and judges.

• Lawyers interpret the law to their clients and are the principal gatekeepers of the legal system

• Judges are society’s authoritative interpreters of the law. How they are (and should be) selected is source of constant debate.

Consumers of Law (Outer Ring)

• The consumers of law are the thousands of citizens that call the police, file a lawsuit, join interest groups, etc. They provide the raw material for courts.

• some consumers are individuals filing lawsuits but they may also be groups or businesses.

Social, Economic, and Political Forces

• The circles of the legal system are constantly interacting with the social, economic and political forces at work in the United States.

• social attitudes about marriage are changing

• September 11, 2001 changed views about terrorism

• political and economic demands affect courts and their business

Courts as Political Institutions

• Howard (1981) argues that courts are bifocal—both legal and political institutions

• Courts are clearly legal institutions—interpreting and applying the law (law, precedent and evidence matter)

• BUT the law is often imprecise

• Courts are clearly political institutions—allocating values for society

• How are they the same and different?

Courts and Politics: The Same?

• Politics is “the authoritative allocation of values for a society.” (Easton 1965)

• the judiciary is clearly political

• Court decisions are determinations that settle controversies. They are:

• authoritative

• involve discretion, and

• determine winners and losers.

Courts and Politics: Different?

• The operations of courts differ from those of other governmental bodies.

• Courts are passive and reactive, they must wait for controversies to be brought to them

• Judges must make decisions in the cases before them

• The judiciary is more insulated from elections and lobbying

Courts and Controversy

• The courts have a major impact on the U.S. political and social landscape. Tocqueville (1835) said:

“There is almost no political question in the United States and that is not resolved sooner or later into a judicial question.”

• Controversial issues are constantly before the courts. Differences of opinion on these issues is often linked to partisan politics.

Courts and Controversy

The Courts today are frequently involved in deciding:

• social policies (same sex marriage, religion, abortion)

• criminal justice issues (death penalty, gun control, drug policy), and

• civil justice issues (tort reform, product liability lawsuits)

• Courts are legal and political institutions

• Definitions of law and politics are very similar

• Courts operate in a political environment

Judicial Process is about the intersection of law, courts, and politics in the United States

Conclusion