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Chapter Sixteen

The Judiciary

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Key Questi s and Objectives of

JudiciaryC apter

1. Explain what judicial review is and trace its origins.

2. List and comment on the three eras of varying Supreme Courtinfluences on national policy.

3. Explain what is meant by a dual court system and describe itseffects on how cases are processed, decided, and appealed.

4. List the various steps that cases go through to reach theSupreme Court and explain the considerations involved at

each step.5. Discuss the dimensions of power exercised today by the

Supreme Court and the opposing viewpoints on an activistSupreme Court.


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Judicial Review

Judicial review: the right ofthe federal

courts to rule on the constitutionality oflawsand executive actions

It is the chiefjudicial weapon in the checks

and balances system

THEME A: THE HISTORYOFTHE FEDERAL JUDICIARY


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U.S. District and Appellate Courts

Administrative Office ofthe United States Courts (January 1983).


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Constitutional Interpretation

Strict construction: judges are bound by thewording ofthe Constitution

Activist: judges should look to the underlyingprinciples ofthe Constitution

Today, most strict constructionists tend to beconservative, most activists tend to be liberal

Activist vs. Strict Constructionists

Issue: GayMarriage

The Debate in Massachusetts

Seperation ofPowers Legislature vs. Governorvs. Judiciary


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Maps ofUS on each States Approach to

GayMarriage


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Development ofthe FederalCourts

Most Founders probably expected judicial

review but did not expect the federal courts

to play such a large role in policy-making But the federal judiciary evolved toward

judicial activism, shaped by political,

economic, and ideologicalforces


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NationalSupremacy

Marburyv. Madison (1803): The Supreme Court

could declare a congressional act

unconstitutional

Marbury vs. Madison excerpt from PBS

McCulloch v. Maryland(1819): The power

granted to federalgovernment should be

construed broadly, and federallaw is supremeover state law

Student film on McCulloch v. Maryland inspired

by Final Fantasy


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1865 to 1936

The Supreme Court was supportive ofprivateproperty, but could not develop a principledistinguishing between reasonable and

unreasonable regulation ofbusiness The Court interpreted the Fourteenth and

Fifteenth amendments narrowly as applied toblacksit upheld segregation, excluded blacks

from votingin many states Court repudiates segregation in Brown v. Board

ofEducation and the Little Rock 9.

Desegregation riots in South Boston.


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1936 to Present

The Court establishes tradition ofdeferring to the

legislature in economic regulation cases

The Warren Court provided a liberal protection ofrights and liberties against government trespass

Roe v. Wade 2

Todays Backlash: Justice Sunday

A middle ground


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SelectingJudges

Party background has a strong effect on

judicial behavior

Appointees forfederal courts are reviewedby senators from that state,ifthe senators

are ofthe presidents party (particularlyfor

U.S. district courts)


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SelectingJudges

Presidents seek judicial appointees who share

their politicalideologies

This raises concerns that ideological tests are too

dominant, and has caused delays in securing

Senate confirmations

Reagan decides who to appoint to SupremeCourt

President Bushs nominates Judge Samuel Alito


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Table 14.2: How Partisanship Affects

Judicial Attitudes


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Figure 16.1: Female and MinorityJudicial

Appointments, 1963-2003

Updated from Harold W. Stanley and Richard G. Niemi,Vital Statistics on American Politics,

2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.


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Updated from Harold W. Stanley and Richard G. Niemi,Vital Statistics on American Politics, 2003-2004 (Washington,

D.C.: Congressional Quarterly, 2003), table 7.5.


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Updated from Harold W. Stanley and Richard G. Niemi,Vital Statistics on American Politics, 2003-2004 (Washington,D.C.: Congressional Quarterly, 2003), table 7.5.


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Discussion Questions for Theme A

1. What problems did the Court have in trying to limit economic

regulation in the era between the Civil War and the New Deal?

2. What was the Roosevelt court-packing plan? What does it suggestabout the relationship between the Supreme Court and the other

branches of government?

3.H

ow would one distinguish successful from unsuccessful assertionsof judicial power? What is it that putsMarbury in one class andDred

Scottin another?


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FederalCases

Federal question cases: involving the

U.S. Constitution,federallaw, or treaties

Diversity cases: involving different states,

or citizens ofdifferent states

THEME B: THE SUPREME COURTIN ACTION)


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FederalCases

Some cases that begin in state courts can

be appealed to the Supreme Court

Controversies between two stategovernments can only be heard by the

Supreme Court


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Figure 14.2: The Jurisdiction ofthe FederalCourts


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Writs ofCertiorari

Requires agreement offour justices to hearthe case

Involves significant federal or constitutionalquestion

Involves conflicting decisions by circuitcourts

Involves Constitutionalinterpretation byone ofthe highest state courts


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Standing to Sue

There must be a real controversy betweenadversaries

Personal harm must be demonstrated Being a taxpayer does not ordinarily

constitute entitlement to challenge federalgovernment action; this requirement is

relaxed when the First Amendment isinvolved


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The Supreme Court in Action

Most cases arrive through a writ ofcertiorari

Lawyers then submit briefs that set forth the facts

ofthe case, summarizes the lower court decision,gives the argument ofthat side ofthe case, and

discusses otherissues

Oral arguments are given bylawyers after briefs

are submitted Example: Oral Arguments before Court on Roe v

Wade


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Kinds ofCourt Opinions

Per curiam: briefand unsigned

Opinion ofthe court: aj rity pini n

Concurring opinion: agree with the rulingf the aj rity pini n, but difie the

upp rtive rea ning

Dissenting opinion: in rity pini n


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Discussion Questions for Theme B

1. The Theme Summary describes several of thepractices and rituals of the Supreme Court. Based onthe Summary, how would you describe the culture ofthis institution? In what ways are its folkways (andthus its culture) similar to or different from the otherbranches of the government?

2. In what respects is the Supreme Court a politicalinstitution? Think carefully about how you aredefining politicalin answering this question.


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3. What are the reasons for a greater number of concurring anddissenting opinions in the Court decisions of recent decades?What are the advantages and disadvantages of such outcomes?

How do these opinions affect the relationships among thejustices?

4. The role of the clerks of the Court is extremely powerful: clerksare the Courts agenda setters in some important ways: theyreview all incoming petitions, provide research to the justices,and write drafts of the opinions. Most clerks are fresh out of anexclusive law school, are highly motivated by career, and arevery intelligent. They generally share the philosophy of the

justice they are clerking for, and they will hold this position foronly one year. Is this an appropriate way for the Court tomanage its workload? What are the advantages anddisadvantages of this system?


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Arguments forJudicial Activism

Courts should correct injustices when other

branches or state governments refuse to do

so

Courts are the last resort for those without

the power orinfluence to gain new laws

THEME C: THE POWEROFTHE FEDERAL JUDICIARY


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Arguments Against Judicial Activism

Judges lack expertise in designing and

managing complexinstitutions

Initiatives require balancing policy prioritiesand allocating public revenues

Courts are not accountable because judges

are not elected


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Checks on Judicial Power

Judges have no enforcement mechanisms

Confirmation and impeachment proceedings

Justice Alito on the Bork confirmation hearing

Changing the number ofjudges

FDR Court PackingScheme

Revisinglegislation

Amending the Constitution Altering jurisdiction

Restricting remedies


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Public Opinion and the Courts

Defying public opinion frontally may bedangerous to the legitimacy ofthe SupremeCourt, especially elite opinion

Bush v. Gore and the 2000 Election (Mr. Bannovideo)

Opinion in realigning eras may energize court

Public confidence in the Supreme Court since

1966 has varied with popular support for thegovernment generally


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Figure 14.3: Patterns ofPublic Confidence

in the Court

Source: Updated from The Gallup Poll: PublicOpinion 1991 (Wilmington, Del.: Scholarly

Resources, Inc., 1992), 213.


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Discussion Questions for Theme C

1.Why do presidents give careful thought to thepolitical views of prospective judicialnominees? Isnt legal competence more

important?

2.What kinds (and how many) resources arerequired to bring a case to the Supreme Court?

Is the judicial system more accessible than thelegislative or executive branches?


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3.What sorts of legal doctrines or principles will

an activist judge favor?

4.Is the judiciary still the least dangerous

branch?

5.What are the checks on the power of thejudiciary? Are they potent and easily invoked,

or weak and difficult to invoke? Why havent

unpopular decisions, such as those on busing

and school prayer, been overturned?


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Wrap Up

1. 31W

2. Key Ideas from Supplemental Readings

3. The CapitolSteps keep the SupremeCourt ALIVE!

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