The JudiciaryThe Judiciary

The Development of the The Development of the Federal CourtsFederal Courts

Controversy

Judicial Review: Over 160 federal laws Judicial Review: Over 160 federal laws deemed unconstitutional. By contrast, deemed unconstitutional. By contrast, British parliament is supremeBritish parliament is supreme

Competing ViewsCompeting Views Strict-constructionist approach (judicial Strict-constructionist approach (judicial

restraint)restraint) Activist Approach (or loose-constructionist)Activist Approach (or loose-constructionist) The preceding views MAY have nothing to The preceding views MAY have nothing to

do with political views, though today, do with political views, though today, liberal judges are typically activists, while liberal judges are typically activists, while conservatives are strict constructionistsconservatives are strict constructionists

The Development of the Federal CourtsThe Development of the Federal Courts

Traditional Courts: person A versus Traditional Courts: person A versus person B and judge determines outcome person B and judge determines outcome by applying existing law.by applying existing law.

Interpret the lawInterpret the law Rather than make the lawRather than make the law

Alexander Hamilton in Federalist 78 calls the courts Alexander Hamilton in Federalist 78 calls the courts the the ““least dangerousleast dangerous”” to political rights and to political rights and ““has no has no influence over either the sword or the purse,influence over either the sword or the purse,”” and and thus thus ““ beyond comparison the weakest of the three beyond comparison the weakest of the three departments of power.departments of power.””

In HamiltonIn Hamilton’’s view Judicial Review was designed not s view Judicial Review was designed not to enlarge the power of the courts but to confine to enlarge the power of the courts but to confine the power of the legislaturethe power of the legislature

My, oh my, how things change! My, oh my, how things change! Evolution of the courts: Three historical Evolution of the courts: Three historical

eraseras

1787-1865:1787-1865: Nation building, Nation building, legitimacy of the Federal legitimacy of the Federal Government and slaveryGovernment and slavery

1865-1937:1865-1937: Relationship between Relationship between the government and the economythe government and the economy

1938-Present:1938-Present: personal liberty, personal liberty, social equality and the potential social equality and the potential conflict between the twoconflict between the two

1787-1865: Nation building, legitimacy of the 1787-1865: Nation building, legitimacy of the Federal Government and slaveryFederal Government and slavery

Question 1: Nation-State relationship: Question 1: Nation-State relationship: John MarshallJohn Marshall National law was in all National law was in all instances the dominant law, states had instances the dominant law, states had to give way to national law, and to give way to national law, and Supreme Court had the power to Supreme Court had the power to decide what the Constitution meant.decide what the Constitution meant.

Key Court Cases:Key Court Cases: Marbury v. Madison, 1803Marbury v. Madison, 1803 McCulloch v. Maryland, 1819McCulloch v. Maryland, 1819

ContinuedContinuedJohn Marshall

1787-1865: Nation building, legitimacy of the 1787-1865: Nation building, legitimacy of the Federal Government and slavery Federal Government and slavery

ContinuedContinued

In addition, the court confirmed the power In addition, the court confirmed the power of the federal government to regulate of the federal government to regulate interstate commerce.interstate commerce.

Anti-federalists, who were angered by the Anti-federalists, who were angered by the decisions of Marshalldecisions of Marshall’’s court do not sit idly by.s court do not sit idly by.

Jackson appoints Roger B. Taney who is most famous Jackson appoints Roger B. Taney who is most famous for issuing the for issuing the Dred Scott decision

Ruled that African-Americans were not citizens and Ruled that African-Americans were not citizens and that the Missouri Compromise, which prohibited that the Missouri Compromise, which prohibited slavery in northern territories, was unconstitutional. slavery in northern territories, was unconstitutional.

This decision will add fuel to the upcoming civil war.This decision will add fuel to the upcoming civil war.

1865-1937: Relationship between the government and the 1865-1937: Relationship between the government and the economyeconomy

Question 2: When should the economy be Question 2: When should the economy be regulated by the states and when by the regulated by the states and when by the nation? nation? protection of private property from protection of private property from state and national government, 14th state and national government, 14th Amendment: no state shall Amendment: no state shall ““deprive any deprive any personperson of life, liberty, or of life, liberty, or propertyproperty, without , without due process of law.due process of law.””

Courts bombarded Courts bombarded first 75 years of the countryfirst 75 years of the country’’s history, only 2 s history, only 2

federal laws were held to be unconstitutional; in federal laws were held to be unconstitutional; in the next seventy five years, 71 werethe next seventy five years, 71 were

we see the birth of we see the birth of Judicial activismJudicial activism, moving , moving away from its traditionally neutral role.away from its traditionally neutral role.

1938-Present: personal liberty, social equality and 1938-Present: personal liberty, social equality and the potential conflict between the twothe potential conflict between the two

Question 3: maintaining order while Question 3: maintaining order while providing personal libertyproviding personal libertyrelationship relationship between citizens and the governmentbetween citizens and the government

RooseveltRoosevelt’’s plan: Court-packing: a new justice s plan: Court-packing: a new justice could be appointed for each current justice could be appointed for each current justice over the age of 70, which would have meant 6 over the age of 70, which would have meant 6 new justices.new justices.

Switch in time that saved nineSwitch in time that saved nine Bill was not passedBill was not passed Eventually, following the retirement of several Eventually, following the retirement of several

justices, Roosevelt will appoint 7 justices during his justices, Roosevelt will appoint 7 justices during his four termsfour terms

Following these events the court focused on political Following these events the court focused on political liberties and civil rightsliberties and civil rights Continued

The Structure of the Federal CourtsThe Structure of the Federal Courts

Constitution only requires the Supreme Constitution only requires the Supreme Court (Art III)Court (Art III)

All other All other federal courtsfederal courts and their and their jurisdictionsjurisdictions are are creations of creations of CongressCongress..

The twelfth court, known as the United States Court of Appeals for the District of Columbia Circuit, has jurisdiction over Washington D.C.

Supreme Court does not have to hear all Supreme Court does not have to hear all casescases

Rule of 4Rule of 4 If cert is not granted, the lower courtIf cert is not granted, the lower court’’s s

ruling stands.ruling stands. Writ of certiorariWrit of certiorari made more certainmade more certain For example: For example:

Two or more federal circuit courts of appeals have Two or more federal circuit courts of appeals have decided the same issue in different waysdecided the same issue in different ways

The highest court in a state has held a federal or The highest court in a state has held a federal or state law to be in violation of the Constitution or state law to be in violation of the Constitution or has upheld a state law against the claim that it is in has upheld a state law against the claim that it is in violation of the Constitution.violation of the Constitution.

Voting Blocs on the Current CourtVoting Blocs on the Current Court Liberals and who appointed them:Liberals and who appointed them:

Ruth Bader Ginsburg (Clinton 1993; b.1933)Ruth Bader Ginsburg (Clinton 1993; b.1933) Stephen Breyer (Clinton 1994; b.1938)Stephen Breyer (Clinton 1994; b.1938) Sonia Sotomayor (Obama 2009; b. 1954)Sonia Sotomayor (Obama 2009; b. 1954) Elana Kagan (Obama 2010, b. 1960)Elana Kagan (Obama 2010, b. 1960)

Conservatives and who appointed them:Conservatives and who appointed them: Antonin Scalia (Reagan 1986; b.1936)Antonin Scalia (Reagan 1986; b.1936) Clarence Thomas (H.W. Bush 1991; b.1948)Clarence Thomas (H.W. Bush 1991; b.1948) John Roberts (Bush 2005; b.1955)John Roberts (Bush 2005; b.1955) Samuel Alito (Bush 2006; b.1950)Samuel Alito (Bush 2006; b.1950)

Swing VoteSwing Vote Anthony Kennedy (Reagan 1988; b.1936)Anthony Kennedy (Reagan 1988; b.1936)

Getting to CourtGetting to Court

Things to know…Things to know…

Judicial power is Judicial power is passivepassive. . Only those with Only those with standing standing (have (have

sustained injury) may challenge a law or sustained injury) may challenge a law or government actiongovernment action

In our dual court system, In our dual court system, State courts State courts are the real workhorsesare the real workhorses

In the early 1990s, state courts In the early 1990s, state courts averaged about 9 million cases averaged about 9 million cases annually, compared with 300,000 in annually, compared with 300,000 in federal courts.federal courts.

JurisdictionJurisdiction4 types4 types ExclusiveExclusive: sole authority of a federal court to try : sole authority of a federal court to try

a case.a case. ConcurrentConcurrent: authority of both a federal and a : authority of both a federal and a

state court to try a case.state court to try a case. OriginalOriginal: authority of a court to first try a case.: authority of a court to first try a case. AppellateAppellate: authority of a court to hear a : authority of a court to hear a

subsequent appeal.subsequent appeal. Other avenues exist for taking an appeal to the Other avenues exist for taking an appeal to the

Supreme Court aside from the writ of certiorari. A Supreme Court aside from the writ of certiorari. A ““writ writ of certificationof certification”” can be used when a U.S. Court of can be used when a U.S. Court of Appeals requests instructions from the Supreme Court Appeals requests instructions from the Supreme Court on a point of law never before decided. A on a point of law never before decided. A ““writ of writ of appealappeal”” is available, in simple terms, when the is available, in simple terms, when the constitutionality of a government action is in question constitutionality of a government action is in question or when a decision from a three-judge district court is or when a decision from a three-judge district court is appealed.appealed.

Types of lawTypes of law StatutoryStatutory: deals with written statutes (laws).: deals with written statutes (laws). Common:Common:

based on system of unwritten laws (ie: based on precedents)based on system of unwritten laws (ie: based on precedents) judges rely on the principle of judges rely on the principle of stare decisis stare decisis ("let the ("let the

decision standdecision stand””)) basic system of law in Britainbasic system of law in Britain

Criminal:Criminal: violations of the criminal code, violation against violations of the criminal code, violation against societysociety

CivilCivil: disputes between two parties : disputes between two parties Examples: breach of contract, slander, malpracticeExamples: breach of contract, slander, malpractice Writ of mandamusWrit of mandamus: court order for one party to perform a : court order for one party to perform a

certain actcertain act Injunction: court order that forbids a party to perform a Injunction: court order that forbids a party to perform a

certain actcertain act Class action suit: a lawsuit brought by (or for) a group of Class action suit: a lawsuit brought by (or for) a group of

people-common grievancepeople-common grievance

Thousands of requests are made for Supreme Thousands of requests are made for Supreme Court decisions, but very few are granted. Court decisions, but very few are granted. Recent trend is for even fewer-about 90 Recent trend is for even fewer-about 90 per year.per year.

If "Rule of 4” is not metIf "Rule of 4” is not met Case lacked substantial federal issueCase lacked substantial federal issue

Party lacks Party lacks StandingStanding Court agrees with lower courtCourt agrees with lower court Case is a political Case is a political hot potatohot potato that the Court that the Court

does not want to touchdoes not want to touch

The Court at workThe Court at work

Written opinions:Written opinions: TypesTypes

UnanimousUnanimous MajorityMajority DissentingDissenting ConcurringConcurring Assigning of opinionsAssigning of opinions If Chief Justice voted with the majority, then he If Chief Justice voted with the majority, then he

assigns someone in the majority to write opinionassigns someone in the majority to write opinion If the C.J. is in the minority, then the most senior If the C.J. is in the minority, then the most senior

Justice in majority writes opinion.Justice in majority writes opinion.

Purpose of opinionsPurpose of opinions

Communicate the Court's reasoning Communicate the Court's reasoning to the publicto the public

Establish precedents for future Establish precedents for future casescases

Drop "hints" to Congress, the Drop "hints" to Congress, the states, the Presidentstates, the President

Getting to Court (Continued)Getting to Court (Continued) DeterrentsDeterrents

Court rejects over 95 percent of applications for Court rejects over 95 percent of applications for certioraricertiorari

Costs of appeal are highCosts of appeal are high But these can be lowered byBut these can be lowered by

In forma pauperisIn forma pauperis: : plaintiff indigent, with costs plaintiff indigent, with costs paid by governmentpaid by government Indigent defendant in a criminal trial: legal Indigent defendant in a criminal trial: legal

counsel provided by governmentcounsel provided by government Payment by interest groups (e.g., American Civil Payment by interest groups (e.g., American Civil

Liberties Union)Liberties Union) Each party must pay its own way except for cases Each party must pay its own way except for cases

in which it is decided:in which it is decided: that losing defendant will pay (that losing defendant will pay (fee shiftingfee shifting))

Judicial Activism and RestraintJudicial Activism and Restraint

Philosophy that the courts should Philosophy that the courts should take an active role in solving social, take an active role in solving social, economic and political problemseconomic and political problems

Courts should uphold the "guardian Courts should uphold the "guardian ethic": act as a guardian of the ethic": act as a guardian of the people.people.

Judicial RestraintJudicial Restraint

Philosophy that the courts should allow Philosophy that the courts should allow the states and the other two branches of the states and the other two branches of the federal government to solve social, the federal government to solve social, economic and political problems.economic and political problems.

Federal courts should act only in those Federal courts should act only in those situations where there are clear situations where there are clear constitutional questions.constitutional questions.

Courts should merely Courts should merely interpretinterpret the law the law rather than make law.rather than make law.

Checks on Judicial PowerChecks on Judicial Power

Evading decisionsEvading decisions Congressional checksCongressional checks

Withdrawing JurisdictionWithdrawing Jurisdiction Changing of number of justicesChanging of number of justices Changing laws and Changing laws and amendingamending the the

constitutionconstitution Pressure from elitesPressure from elites