In the United States the selection of a judge produces a dramatic and bitter conflict because …...
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Transcript of In the United States the selection of a judge produces a dramatic and bitter conflict because …...
• In the United States the selection of a judge produces a dramatic and bitter conflict because …– Only in the United States
do judges play so large a role in making public policy
• JUDICIAL REVIEW:– The right of the federal courts
to declare laws of Congress and acts of the executive branch void and unenforceable if they are judged to be in conflict with the Constitution
– Since 1789 the Supreme Court has declared over 160 federal laws to be unconstitutional
• JUDICIAL REVIEW:– Judicial review is the
federal courts’ chief weapon in the system of checks and balances on which the American Government is based
• Two competing views about the Judiciary …
1. Strict-constructionist approach: judges should only judge – that is, they should confine themselves to applying those rules are stated in or clearly implied by the language of the Constitution
2. Activist approach: judges should discover the general principles underlying the Constitution and its often vague language, amplify those principles on the basis of some moral or economic philosophy, and apply them to cases– Means … read in-between
the lines of the Constitution
• Seventy years ago judicial activists tended to be conservatives and strict-constructionist judges tended to be liberals; today the opposite is true
• Supreme Court has been shaped by the political, economic, and ideological forces of three historical eras
1. 1787-1865 – nation building, the legitimacy of the federal gov., and slavery
2. 1865-1937 – relationship between government and the economy
3. 1938 – present – personal liberty and social equality and the potential conflict between the two
• CHIEF JUSTICE JOHN MARSHALL– He stated that, “national
law was in all instances the dominant law, with state law having to give way, and that the Supreme Court had the power to decide what the Constitution meant.”
• TWO CASES OF ENORMOUS IMPORTANCE:
1. Marbury v. Madison (1803)2. McCulloch v. Maryland (1819)
– These decisions which were written by Marshall, held that the Supreme Court could declare an act of Congress unconstitutional; that the power granted by the Constitution to the federal government flows from the people and thus should be generously construed (and thus any federal laws that are “necessary and proper” to the attainment of constitutional ends are permissible); and that federal law is supreme over state law
• Dred Scott Case– Chief Justice Roger B. Taney
• Dred Scott, a slave, was taken to a territory which is St. Paul, Minnesota, where slavery was illegal under Federal Law
• Scott claimed that since he had resided in a free territory he was now a free man
• Chief Justice Taney held that African-Americans were not US Citizens and could not become so, and that the federal law – The Missouri Compromise – which prohibited slavery in the Northern Territories was unconstitutional
• The public outcry against this move was enormous, and the Court and Taney were discredited in the North
• The dominant issue the Supreme Court faced was deciding when the economy would be regulated by the states and when it would be regulated by the federal government
• Government Regulation– Force railroads to improve
their safety– The regulation of wages and
work hours
• When it came to government regulation in the economy the dominant issue was property (REASONABLE v. UNREASONABALE GOVERNMENT REGULATION)– 14th Amendment – adopted in 1868 primarily
to protect African American claims to citizenship from hostile state action, also protected private property and the corporation from unreasonable state action
• No state shall, “deprive any person of life, or property, without due process of law”
• PERSON IS ALSO A FIRM OR A CORPORATION
• Supreme Court set up to protect the rights and liberties of citizens from governmental trespass
• For many decades the Supreme Court allowed Congress to pass laws no matter how it affected the states
• Since 1992 – the Supreme Court has restored the view that states have the right to resist some forms of federal action
• The only federal court that the Constitution requires is the Supreme Court (Article III)
• All other federal courts and their jurisdictions were created by Congress
• Constitution does not say how many Supreme Court Justices there should be
• There are 9 Supreme Court Justices today– 8 associate justices and 1 Chief
Justice (John G. Roberts Jr.)
• Two kinds of lower federal courts that handle cases that do not have to be decided by the Supreme Court– Constitutional Court– Legislative Court
• CONSTITUTIONAL COURTS– Are courts that exercise the
judicial powers found in Article III of the Constitution, and therefore its judges are given Constitutional protection – cannot be fired, nor their salaries reduced while in office
• District Courts: most important of the constitutional courts; there are 94 and each state is guaranteed at least one
• Court of Appeals: One in each of the eleven regions, or districts, plus one in the District of Columbia
• Legislative Courts:
– Set up by Congress for some specialized purpose and staffed with people who have fixed terms of office and can be removed or have their salaries reduced• Example: Court of
Military Appeals
• SELECTING JUDGES:– Judges who are Democrat are
more likely to make liberal decisions (favor civil rights, favor a criminal defendant, or economic regulation)
– Judges who are Republican are more likely to make conservative decisions
– Just because a president chooses a Supreme Court Justice does not mean that Justice will always act in accordance with the president that appointed him or her
• SELECTING JUDGES:– SENATORIAL COURTESY:
• In theory the president nominates a “qualified” person to be a judge, and the Senate approves or rejects the nomination based on those “qualifications.”
• Senatorial courtesy gives heavy weight to the preferences of the senators from the state where a federal district judge is to serve
• Ordinarily the Senate will not confirm a district court judge if the senior senator from the state where the district is located objects
• Senator can exercise veto power of a judge by use of a “blue slip” – is a piece of paper on which the senator is asked to record his or her view on a nominee. This usually results in killing the nomination
• It seems as if the Senator has more say than the president
• This is not common with Supreme Court Justices
• THE “LITMUS TEST”
– Test of ideological purity when selecting a Supreme Court Justice
• Dual Court System– State Courts– Federal Courts– What kind of cases
do federal courts hear, and how does a case beginning in the the state courts end up before the Supreme Court
• The Constitution lists the kinds of cases over which federal courts have jurisdiction (figure 16.2 – page 449)– Are found in Article III
and the 11th Amendment of the Constitution• All other matters are
left to the state courts
• Federal-Question Cases:– Cases that are “arising
under the Constitution, the laws of the United States, and treaties.”
– These are cases that the Federal Courts can hear because it is specifically stated in the Constitution
• Diversity Cases:– California and Arizona sue
each other over which state is to use how much water from the Colorado River – the case can only be heard by the Supreme Court
• Cases heard in either federal or state courts– Example: if citizens from two
different states want to sue each other and the matter involves more than $75,000, they can either use a federal or state court
– Someone robs a federally insured bank, he or she has broken both state and federal laws and thus can be prosecuted in state or federal court, or both
• Dual Sovereignty Doctrine:– State and Federal authorities can
prosecute the same person for the same conduct
– Lynching's in the South – the Southern, State Courts, were sympathetic to the Whites
• In the absence of dual sovereignty would have meant that an acquittal in state court would have barred federal prosecution
• Federal judges can overturn state court rulings even when they had no jurisdiction over the original matter
• Vast majority of all cases heard by federal courts begin in the district courts
• Clarence Earl Gideon:– Wrote an appeal in pencil on
prison stationery and sent it to the Supreme Court which now required accused persons to supplied with a lawyer, free if necessary (in a criminal Case)
– If not a criminal case an interest group are sometimes willing to take up the cause if the issue in the case seems important
• Example: ACLU – if person believes their liberties have been denied
• Writ of certiorari (cert):– Court considers all the
petitions it receives to review lower-court decisions. IF FOUR justices agree to hear a case, a CERT is issued and the case is scheduled for a hearing
• Writ of certiorari (cert): if meets TWO requirements
1. Two or more federal circuit courts of appeals have decided the same issue in different ways
2. The highest court in the state has held a federal or state law to be in violation of the Constitution or has upheld a state law against the claim that it is in violation of the Constitution
• Supreme Court only review about 1 or 2 percent of appeals court case; rejects 96% of the applications for CERT
• Can be expensive:– Apply for CERT costs $300
and you must supply 40 copies of the petition.
– If you are indigent – without funds – you can file and be heard as a pauper (in forma pauperis) for nothing
– About half the petitions arriving before the Supreme Court happen this way
• FEE SHIFTING: a rule that allows a plaintiff (the party that initiates the a lawsuit) to recover costs from the defendant if the plaintiff wins the case
• Section 1983 of Chapter 42 of the United States Code allows a citizen to sue a state or local government official – police officer or superintendent of a school – who has deprived the citizen of some constitutional right.– If the citizen wins, he or she can collect
money damages and lawyers’ fees from the government
• STANDING: a legal rule stating who is authorized to start a lawsuit
• Here are three rules that govern STANDINGS
1. There must be an actual controversy between real adversaries
2. You must show that you have been harmed by the law or practice about which you are complaining
3. Merely being a taxpayer does not ordinarily entitle you to challenge
• Sovereign Immunity: the rule that a citizen cannot sue the government without the government’s consent– You can sue a
government official
• CLASS-ACTION SUITS: a case brought by someone to help him or her and all others (who are not in court) who are similarly situated
• Brown v. Topeka, Kansas– She was denied to go to a
school because they were segregated but she was protected under the 14th Amendment
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