The Judiciary

Chapter 16Chapter 16The JudiciaryThe Judiciary

Copyright © 2011 CengageCopyright © 2011 Cengage

WHO GOVERNS?WHO GOVERNS?1.1. Why should federal judges serve for Why should federal judges serve for

life?life? TO WHAT ENDS?TO WHAT ENDS?

1.1. Why should federal courts be able to Why should federal courts be able to declare laws unconstitutional?declare laws unconstitutional?

2.2. Should federal judges only interpret Should federal judges only interpret existing laws or should they be able to existing laws or should they be able to create new laws?create new laws?

OverviewOverview

Judicial Review Judicial Review – – the power of courts to the power of courts to declare laws unconstitutionaldeclare laws unconstitutional

Judicial Restraint Approach Judicial Restraint Approach – judges – judges should decide cases strictly on the basis of should decide cases strictly on the basis of the language of the Constitutionthe language of the Constitution

Activist Approach – Activist Approach – judges should judges should discern the general principles underlying discern the general principles underlying the Constitution and apply them to the Constitution and apply them to modern circumstancesmodern circumstances


The Development of the Federal The Development of the Federal CourtsCourts

National Supremacy and SlaveryNational Supremacy and Slavery• Marbury v Madison Marbury v Madison (1803)(1803)• McCulloch v MarylandMcCulloch v Maryland (1819) (1819)• Dred Scot Dred Scot decision (1857)decision (1857)

Government and the EconomyGovernment and the Economy Government and Political LibertyGovernment and Political Liberty The Revival of State SovereigntyThe Revival of State Sovereignty



Roger B. Taney, chief justice from 1836 to 1864, wrote the Roger B. Taney, chief justice from 1836 to 1864, wrote the Dred Scott Dred Scott decision, which asserted that blacks were not citizens of the United decision, which asserted that blacks were not citizens of the United States. Dred Scott claimed that when his master brought him north to States. Dred Scott claimed that when his master brought him north to a free state, he ceased to be a slave. The public outcry against the a free state, he ceased to be a slave. The public outcry against the decision was intense, at least in the North, as is evident from this decision was intense, at least in the North, as is evident from this poster announcing a mass meeting “to consider the atrociousposter announcing a mass meeting “to consider the atrociousdecision.” p. 434decision.” p. 434

Library of Congress/LC-USZ62-44166


The “nine old men”—The Supreme Court in 1937, not long after President Franklin D. Roosevelt tried, unsuccessfully, to “pack” it by appointing six additional justices who would have supported his New Deal legislation. Justice Owen J. Roberts (standing, second from the left) changed his vote on these matters, and the Court ceased to be a barrier to the delegation of power to the bureaucracy. P. 435

Bettmann/Corbis

Map 16.1 U.S. District and Appellate CourtsMap 16.1 U.S. District and Appellate Courts


Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth.Source: Administrative Office of the United States Courts (January 1983).

The Structure of the Federal The Structure of the Federal CourtsCourts

Lower Federal CourtsLower Federal Courts• Constitutional CourtConstitutional Court

District courtsDistrict courts Courts of appealCourts of appeal

• Legislative CourtLegislative Court Court of Military AppealsCourt of Military Appeals

Selecting JudgesSelecting Judges• Senatorial CourtesySenatorial Courtesy• The “Litmus Test”The “Litmus Test”


Figure 16.1 Female and Minority Figure 16.1 Female and Minority Judicial Appointments, 1963–2004Judicial Appointments, 1963–2004


Source: Updated from Harold W. Stanley and Richard G. Niemi,Vital Statistics on American Politics, 2005–2006 (Washington, D.C.:Congressional Quarterly, 2006), table 7.5.

Figure 16.2 Confirmation Rates for Figure 16.2 Confirmation Rates for Nominees to the U.S. Court of Appeals Nominees to the U.S. Court of Appeals

(1947–2005)(1947–2005)


Source: “The Consequences of Polarization: Congress and the Courts” by Sarah A. Binder, in David Brady and Pietro Nivola, Eds., Red and Blue Nation? (Vol. 2) Consequences and Correction of America’s Polarized Politics. Brookings Institutions and Hoover Institution Presses. Reprinted with permission of the author.


Sonia Sotomayor became the third female and first Hispanic Sonia Sotomayor became the third female and first Hispanic justice on the Supreme Court. p. 440justice on the Supreme Court. p. 440

Karen Bleier/AFP/Getty Images

The Jurisdiction of the Federal The Jurisdiction of the Federal CourtsCourts

Federal-question cases – Federal-question cases – Cases Cases concerning the Constitution, federal concerning the Constitution, federal laws, or treatieslaws, or treaties

Diversity cases – Diversity cases – Cases involving Cases involving citizens of different states who can citizens of different states who can bring suit in federal courtsbring suit in federal courts

Writ of certiorari – Writ of certiorari – An order by a An order by a higher court directing a lower court higher court directing a lower court to send up a case for review.to send up a case for review.


Figure 16.3 The Jurisdiction of the Figure 16.3 The Jurisdiction of the Federal CourtsFederal Courts


p. 441

Getting to CourtGetting to Court In forma pauperisIn forma pauperis Fee ShiftingFee Shifting StandingStanding Class Action SuitsClass Action Suits


Linda Brown was refused admission to a white elementary school in Topeka, Kansas. On her behalf, the NAACP brought a class-action suit that resulted in the 1954landmark Supreme Court decision Brown v. Board of Education. p. 445

Carl Iwasaki/Time Life Pictures/Getty Images

The Supreme Court in ActionThe Supreme Court in Action

BriefBrief Amicus curiaeAmicus curiae Per curiam Per curiam opinionopinion Opinion of the courtOpinion of the court Concurring opinionConcurring opinion Dissenting opinionDissenting opinion



The members of the Supreme Court, front row, from left are: Anthony The members of the Supreme Court, front row, from left are: Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia, Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia, and Clarence Thomas. Back row, from left are: Samuel Alito, Ruth Bader and Clarence Thomas. Back row, from left are: Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447

Charles Dharapak/AP Photo

The Power of the Federal CourtsThe Power of the Federal Courts

The Power to Make The Power to Make PolicyPolicy• Stare decisisStare decisis• Political questionPolitical question• RemedyRemedy

Views of Judicial Views of Judicial ActivismActivism

Legislation and the Legislation and the CourtsCourts


The activism of federal courts is exemplified by the sweeping orders they have issued to correct such problems as overcrowded prisons. p. 448

Alex Webb/Magnum Photos

Checks on Judicial PowerChecks on Judicial Power

Congress and the CourtsCongress and the Courts• ConfirmationsConfirmations• ImpeachmentImpeachment• Number of judgesNumber of judges• JurisdictionJurisdiction

Public Opinion and the Public Opinion and the Courts Courts


Thurgood Marshall became the first black Supreme Court justice. As chief counsel for the NAACP, Marshall argued the 1954 Brown v Board of Education case in front of the Supreme Court. He was appointed to the Court in 1967 and served until 1991. p. 452

Bettmann/Corbis

Figure 16.4 Public Confidence Figure 16.4 Public Confidence in the Court, 1974 - 2006in the Court, 1974 - 2006


Source: The Gallup Poll.

M E M O R A N D U MM E M O R A N D U M

To: To: Senator Ann GilbertSenator Ann Gilbert

From: From: Amy Wilson, legislative assistantAmy Wilson, legislative assistant

The Supreme Court has held that the attorney general cannot The Supreme Court has held that the attorney general cannot use his authority over federally controlled drugs to block use his authority over federally controlled drugs to block the implementation of the Oregon “Death With Dignity” the implementation of the Oregon “Death With Dignity” law. Now some of your colleagues want to enact a federal law. Now some of your colleagues want to enact a federal equivalent of that law that would allow physicians to equivalent of that law that would allow physicians to prescribe deadly drugs to patients who request them.prescribe deadly drugs to patients who request them.


WHAT WOULD YOU DO?WHAT WOULD YOU DO?

Arguments for:Arguments for:

1. The law respects the people’s rights to choose the time and 1. The law respects the people’s rights to choose the time and place of their own death.place of their own death.

2. It is already permissible to post “Do Not Resuscitate” orders 2. It is already permissible to post “Do Not Resuscitate” orders on the charts of terminally ill patients.on the charts of terminally ill patients.

3. Physicians can be held to high standards in implementing 3. Physicians can be held to high standards in implementing the law.the law.



Arguments against:Arguments against:

1. The law will corrupt the role of doctors as many think has 1. The law will corrupt the role of doctors as many think has happened in Holland, where a similar law has led some happened in Holland, where a similar law has led some physicians to kill patients prematurely or without physicians to kill patients prematurely or without justification.justification.

2. Such a law will lead some physicians to neglect or ignore 2. Such a law will lead some physicians to neglect or ignore the desires of the patient.the desires of the patient.

3. This law will undermine the more important goal of helping 3. This law will undermine the more important goal of helping patients overcome pain and depression.patients overcome pain and depression.



Your decision:Your decision:

Support the law?Support the law?

Oppose the law?Oppose the law?



The Judiciary

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