Supreme Court Building Supreme Court Holy temple with priests wearing black robes. Very strange in a democracy Perception of Judges as non-political.

Supreme Court BuildingSupreme Court Building

Supreme CourtSupreme Court

Holy temple with priests wearing black robes. Very strange in a democracy

Perception of Judges as non-politicalWhat role should an unelected institution

play in a democracy?

Constitutional DebateConstitutional Debate

Hamilton, Fed #78– the least dangerous branch– holds neither the purse nor the sword– Lifetime appointment

Brutus, Anti-federalist– unelected judiciary – no room for appeal – all powerful expansive judiciary which will subvert

state rights

Structure of Federal JudiciaryStructure of Federal Judiciary

Supreme Court9 Justices

Mostly appellate

Hears about 100out of 10,000 requests

U.S. Courts of Appeals13 districts with 170 judges

3-judge panels hear appeals33,000 cases per year

U.S. District Courts94 district courts with 650 judges

Trial courts with original jurisdiction225, 000 cases per year

Statecourts

Imperial Judiciary or Least Imperial Judiciary or Least Dangerous Branch?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 How does a case get to the Supreme Court?Supreme Court?

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 DecidesHow the Court Decides

Oral argumentConferenceOpinion writingForming a majority

– Brown v. Board of Education– What are you doing for Lunch– Call me a second rate intellect will you

Dissents and concurring opinions

Pre-Bush Supreme CourtPre-Bush Supreme Court

Ginsburg, Souter, Thomas, BreyerScalia, Stevens, Rehnquist, O’Connor, Kennedy

The Pre-Bush CourtThe Pre-Bush Court

Left– John Paul Stevens dissents on ½ of cases

Leaning Left– David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg

voted together 62% Leaning Right

– Anthony M. Kennedy, Sandra Day O'Connor voted together 64 % Right- Conservative

– William H. Rehnquist Right –Movement Conservatives

– Thomas and Scalia voted together 82%

Ginsburg, Souter, Breyer and StevensScalia, Thomas, Alito, Roberts (CJ)

It’s the Kennedy CourtIt’s the Kennedy Court

Appointed by President Reagan

It’s the Kennedy CourtIt’s the Kennedy Court

2007 voted with the majority in all 24 of the cases decided by votes of 5 to 4

2008 – Kennedy writes the majority opinion– Boumediene v. Bush Guantánamo case, – Kennedy v. Louisiana, the death penalty for

child rape – Dada v. Mukasey, procedural rights to

immigrants facing deportation

Nominating SC JusticesNominating SC Justices

What is the constitutional process?How and why has it changed in recent

years?President’s most important decision

– Alito, Roberts both under 53

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

Robert Bork Borking

Stealth StrategyStealth Strategy Appoint people no one

knows anything about

David SouterHarriet Miers

Minority StrategyMinority Strategy

Alberto Gonzalez

Clarence ThomasMiguel Estrada (below)

Respected Liberal/Conservative JuristsRespected Liberal/Conservative Jurists

Well respected Within ideological

mainstream

Nuclear Option v. Filibuster Nuclear Option v. Filibuster CompromiseCompromise

51 votes, not 60 for cloture Group of 14 compromise

– vowed to filibuster judicial nominees only “under extraordinary circumstances, where each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.”

– Votes on Bush nominees to the federal Circuit Courts of Appeals: Janice Rogers Brown, Priscilla Owen, and William Pryo

Alito Confirmation BattleAlito Confirmation Battle

O’Conner –swing vote on abortion, civil rights, environment etc

Bush- major executive power in wartime cases

Judge Alito (Ct of Appeals)– Catholic/pro life– Former prosector

Death WatchDeath WatchJustice John Paul Stevens - 88 Ruth Bader Ginsburg - 75David Souter-68

Litmus test for SC NomineesLitmus test for SC Nominees

No– Judicial skills– Undermines constitutional system– No reason to treat court’s decisions as authoritative

Yes– Everyone else is doing it– Process has always been political– Independence comes after nomination

We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our property under the Constitution.

–Chief Justice Hughes, 1907

Importance of precedent! (stare decisis)

Judge-Made LawJudge-Made Law

Interpreting the ConstitutionInterpreting 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 EducationBrown v. Board of Education

How did Justices take political considerations into account?

Why did they do it?What were consequences?What about present case of race based

admissions to universities?

Guantanamo BayGuantanamo Bay

““The worst of the worst”?The worst of the worst”?

Hamdi v. Rumsfeld and Rasul v. Bush – -combatants are entitled to some neutral

adjudicatory process

Congress– Detainee Treatment Act

Detainee Treatment ActDetainee Treatment Act (2005) (2005)

no court, justice, or judge shall have jurisdiction to hear or consider--

`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba

Scalia- "Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?"

Military Commissions Act (2006)Military Commissions Act (2006)

unlawful enemy combatant- determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

forbid explicitly the invocation of the Geneva Conventions

Establishes alternative judicial procedures

Boumediene v. Bush and Al Boumediene v. Bush and Al Odah v. United States (2008)Odah v. United States (2008)

Justice Kennedy writes the 5-4 majority – prisoners had a right to the habeas corpus under

the United States Constitution and that the MCA was an unconstitutional suspension of that right.

Kennedy “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is‘”

Scalia’ DissentScalia’ Dissent

MCA provides habeas corpus guarantees "how to handle enemy prisoners in this war

will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails."

“Guantanamo Bay lies outside the sovereign territory of the United States."

DissentsDissents

Roberts –MCA is "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

Scalia - "will almost certainly cause more Americans to be killed."

ImplementationImplementation

Courts have few tools to force compliance with rulings

Implementation through the Courts– Gideon v. Wainwright

Implementation through states– Engel v. Vitale – Brown v. Board

Limits on Judicial ReviewLimits 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”

ConclusionConclusion

the least dangerous branch or an imperial judiciary? – The Tom Delay view

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