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Chapter 14: The Judiciary (Mr. Hughess favorite!!!) Slide 2 Theme A: History of the Judiciary The power of the Supreme Court evolved slowly. Under the leadership of Chief Justice John Marshall (aka The Chief), 3 things happened that established the Courts institutional legitimacy: The power of the Supreme Court evolved slowly. Under the leadership of Chief Justice John Marshall (aka The Chief), 3 things happened that established the Courts institutional legitimacy: Defeated impeachment of Samuel P. Chase. Impeachment was purely political. Validated the doctrine of judicial independence. The issuance of a single majority opinion that allowed the court to speak w/one authoritative voice rather than each justice writing separately Assumption of the power of judicial review w/Marbury v. Madison, making the SC an equal partner in govt w/Congress and Prez. Slide 3 Slide 4 3 eras of Supreme Court decision- making: 1787 1865 Federal state relations and slavery were the big issues. Federal preeminence was written into K theory, but only after the CW was the theory applied. Judicial review used sparingly, attesting to SCs still uncertain status. 1787 1865 Federal state relations and slavery were the big issues. Federal preeminence was written into K theory, but only after the CW was the theory applied. Judicial review used sparingly, attesting to SCs still uncertain status. Slide 5 3 eras of Supreme Court decision- making: 1865 1937 Relationship b/w the govt and the economy was the big issue. SC acted to support property rights and held that the due process clause of the 14th Amendment protected commercial enterprises from some forms of regs. SC reflected laissez-faire attitude of the time. SC did however act against injustices of capitalism. In balancing public interest and private property rights, decisions became riddled w/inconsistencies in deciding b/w what is reasonable or unreasonable in terms of regulations, and inter- vs. intra-state regs. Necessities of the Great Depression compelled a revision in K theory on economic issues. 1865 1937 Relationship b/w the govt and the economy was the big issue. SC acted to support property rights and held that the due process clause of the 14th Amendment protected commercial enterprises from some forms of regs. SC reflected laissez-faire attitude of the time. SC did however act against injustices of capitalism. In balancing public interest and private property rights, decisions became riddled w/inconsistencies in deciding b/w what is reasonable or unreasonable in terms of regulations, and inter- vs. intra-state regs. Necessities of the Great Depression compelled a revision in K theory on economic issues. Slide 6 3 eras of Supreme Court decision- making: 1938 present SC has switched its focus to the protection of personal liberties. Brought about in part by FDRs effort to pack the court for New Deal purposes. SC allowed govt a freer hand in econ regulation, and took up the stewardship of civil liberties. 1938 present SC has switched its focus to the protection of personal liberties. Brought about in part by FDRs effort to pack the court for New Deal purposes. SC allowed govt a freer hand in econ regulation, and took up the stewardship of civil liberties. Slide 7 Structure of the Federal Courts Two kinds of federal courts were created by Congress to ease the burden on the SC. Two kinds of federal courts were created by Congress to ease the burden on the SC. Constitutional courts: exercise Article III judicial powers Judges serve during good behavior (life) Judges serve during good behavior (life) Examples: district courts (94), Courts of Appeals (12) Examples: district courts (94), Courts of Appeals (12) Legislative courts Created by Congress for specialized purposes Created by Congress for specialized purposes Judges have fixed terms Judges have fixed terms Judges can be removed Judges can be removed Example: Court of Military Appeals Example: Court of Military Appeals Slide 8 The Three Courts Slide 9 Selecting judges all constitutional court judges are nominated by prez and confirmed by Senate. all constitutional court judges are nominated by prez and confirmed by Senate. Party background has some effect on judicial behavior, but rulings also influenced by: facts of the case, precedent, lawyers arguments Party background has some effect on judicial behavior, but rulings also influenced by: facts of the case, precedent, lawyers arguments Senatorial courtesy: appointees for fed courts are reviewed by senator(s) of that state, if the senator(s) is/are of the prezs party Senatorial courtesy: appointees for fed courts are reviewed by senator(s) of that state, if the senator(s) is/are of the prezs party Slide 10 The litmus test Presidents seek judicial nominees who share their political ideology who share their political ideology Has caused different circuits to come to different rulings about similar cases Raises concerns that ideological (litmus) tests are too dominant, and has caused delays in Senate confirmations Greatest impact is at Supreme Court level, where there is no senatorial courtesy Slide 11 The jurisdiction of federal courts Dual court system one State, one Federal Dual court system one State, one Federal Another example of federalism in our system Another example of federalism in our system Slide 12 Federal cases listed in Article III and 11th Amendment Federal cases listed in Article III and 11th Amendment Federal question cases: involve K, federal law, or treaties Diversity cases: involve different states, or citizens of different states Some cases can be tried in fed court OR state court Some cases can be tried in fed court OR state court If both fed and state laws have been broken (dual sovereignty) State cases can sometimes be appealed to SCOTUS State cases can sometimes be appealed to SCOTUS Slide 13 Route to the Supreme Court Most federal cases begin in district court Most federal cases begin in district court Most are straightforward; do not lead to any new public policy Supreme Court picks cases it wants to hear on appeal Supreme Court picks cases it wants to hear on appeal Requires agreement of 4 justices to hear case to issue writ of certiorari (Rule of Four) Slide 14 Usually deals with Significant federal or K question Significant federal or K question Conflicting decisions by circuit courts Conflicting decisions by circuit courts K interpretation by one of the highest state courts, about state or fed law K interpretation by one of the highest state courts, about state or fed law Fewer than 100 cases per term (year) are granted cert Slide 15 Getting to court Why it is difficult SC rejects all but a few applications SC rejects all but a few applications for cert for cert Costs of appeal are high Costs of appeal are high Costs can sometimes be lowered: In forma pauperis: plaintiff is indigent, costs paid by taxpayers Indigent defendant in criminal trial: atty provided by taxpayer, no charge to defendant Payment by interest groups (ACLU, NRA, etc.) Slide 16 Standing: deciding who is entitled to bring a case Must be a real controversy no friendly cases Must be a real controversy no friendly cases Personal harm must be demonstrated Personal harm must be demonstrated Being a taxpayer does not automatically entitle a person to bring suit against govt. Somewhat relaxed in 1st Am. Cases Being a taxpayer does not automatically entitle a person to bring suit against govt. Somewhat relaxed in 1st Am. Cases Sovereign immunity: govt must consent to being sued Sovereign immunity: govt must consent to being sued Slide 17 Supreme Court Hearings Slide 18 Supreme Court Deciding Cases Slide 19 Supreme Court in action Oral arguments after submitting briefs in advance Oral arguments after submitting briefs in advance Each side has hr, but justices can interrupt w/questions Role of solicitor general: decides what cases the fed govt will appeal to the Court Also submits amicus curiae briefs on many cases; SC has high regard for these briefs Also submits amicus curiae briefs on many cases; SC has high regard for these briefs Amicus briefs may be submitted if parties agree or SC grants permission, which they do about 85% of the time Justices influenced by many sourceslaw journals, international law, precedent, political climate (RARELY, and always justifiably), personal convictions Slide 20 In conference: Chief Justice, speaks first, votes last Chief Justice assigns opinion writing duties, if voting w/majority. If voting w/minority, assigns dissenting opinion and senior associate justice in majority assigns the majority opinion Concurring opinions justice agrees w/majority, but for different or additional reasons Dissenting opinions explains logic of dissent. These often become basis for future majority opinion on those rare occasions the SC reverses an earlier opinion Slide 21 Voting patterns: 1960s Warren Court liberal, activist in terms of civil liberties and civil rights liberal, activist in terms of civil liberties and civil rights 1970s and 1980s Burger Court generally balanced b/w conservatives (Burger, Rehnquist, OConnor), liberals (Brennan, Marshall, Blackmun, Powell), and swing voters White and Stevens. As the swing vote goes, so goes the Court. generally balanced b/w conservatives (Burger, Rehnquist, OConnor), liberals (Brennan, Marshall, Blackmun, Powell), and swing voters White and Stevens. As the swing vote goes, so goes the Court. 1990s Rehnquist Court Balanced, leaning toward conservative Balanced, leaning toward conservative Conservative: Rehnquist, Scalia, Thomas Liberal: Ginsberg, Breyer, Stevens, Souter Swing voters: OConnor, Kennedy Slide 22 SCOTUS Today The Roberts Court The Roberts Court Balanced, leaning conservative Liberal: Ginsberg, Breyer, Kagan, Sotomayor Conservative: Roberts, Alito, Scalia, Thomas Swing Vote: Kennedy Slide 23 THE POWER OF THE FEDERAL JUDICIARY The power to make policy The power to make policy Over 130 laws declared unconstitutional Over 130 laws declared unconstitutional Over 260 prior cases overturned (not following stare decisis) Over 260 prior cases overturned (not following stare decisis) Courts more likely to tackle political questions than before Courts more likely to tackle political questions than before Judges can order massive remedies based on K or on interpretation of federal laws Judges can order massive remedies based on K or on interpretation of federal laws Slide 24 Views of judicial activism Supporters Courts should correct injustices when other branches or state govts fail to Courts should correct injustices when other branches or state govts fail to Courts are the last resort of regular people (those not wealthy/powerful enough to have true access to policymakers Courts are the last resort of regular people (those not wealthy/powerful enough to have true access to policymakers Slide 25 Views of judicial activism Critics Judges lack expertise in policymaking Judges lack expertise in policymaking Initiatives involve balancing policy priorities and allocating taxpayer $; judges not qualified or informed enough to do that Initiatives involve balancing policy priorities and allocating taxpayer $; judges not qualified or informed enough to do that Judges are unelected and therefore unaccountable Judges are unelected and therefore unaccountable Slide 26 SC decisions can be undone by Revising legislation Revising legislation Amending K Amending K Altering jurisdiction of the Court Altering jurisdiction of the Court Restricting Court remedies Restricting Court remedies Slide 27 Public opinion and the courts Defying public opinion could be dangerous for the legitimacy of the SC Opinion in realigning eras may energize the court (1950s and 60s, civil rights movement) Public confidence in the SC has generally gone up and down w/support of the govt over the last 40 years