Ch. 14: The Judiciary Sarah Ibrahimi Mr. Baier AP Government/ Block 2

Getting to Court The Supreme Court rejects over 96% of the applications for certiorari that it receives. Problems with getting to court: Very expensive (cost of lawyers and copies of the case records). It usually takes a long time to settle a dispute in the federal court. In forma pauperis: if you are poor and your case began as a criminal trial in the district courts, the government will provide you with a lawyer free of charge. If you can’t afford a lawyer and it isn’t a criminal case, special interest groups sometimes offer to pay the bills. American Civil Liberties Union (ACLU): liberal group that represents people who believe their freedom of speech has been violated or that their rights in a criminal proceeding have been violated. The Center for Individual Rights: a conservative group that represents people who feel that they have been victimized by racial quotas.

Fee Shifting Unlike Europe, here in the U.S. each party in a lawsuit must pay their own way. Plaintiff: the party that initiates the suit. Fee shifting: enables the plaintiff to collect its costs from the defendant if the defendant loses, at least in some cases. Section 1983 of Ch. 42 of the U.S Code: allows a citizen to sue a state or local government official who has deprived the citizen of a constitutional right or withheld some benefit the citizen is entitled to. A flood of “Section 1983” suits have burdened the courts.. The Supreme Court has restricted fee shifting to cases authorized by statute.

Standing Standing: a legal concept that refers to who is entitled to bring a case. Rules of standing: There must be an actual controversy between real adversaries (no “friendly” suits or hypothetical cases). One must show that they were actually harmed by the law or practice which they are complaining about. Being a tax payer doesn’t entitle you to challenge the constitutionality of a federal government action. A citizen can sue a government official personally in order to collect damages if the official has in some way broken a law. Sovereign immunity: the doctrine that states that you can’t sue the government without its consent.

Class Action Suits Class action suit: a case brought into court by a person on behalf of not only themselves but other people in similar situations. Brown v. Board of Education: 1954 case in which public schools were desegregated. Beginning in the 1960’s, certain class action suits became financially attractive to lawyers. (Brown v. Board of Education had no monetary gain for the NAACP). In 1974, the Supreme Court decided it would no longer hear class-action suits seeking monetary damages (except in certain cases defined by Congress) unless every member of the class was individually notified of the case.

The Supreme Court in Action Most cases come to court on writ of certiorari. Brief: a document that sets forth the facts of the case, summarizes the lower-court decision, gives the arguments for the side represented by the lawyer who wrote the brief, and discusses the other cases that the Court has decided bear on the issue. Solicitor general: third-ranking officer of the Department of Justice and the governments top trial lawyer. His job is to decide what cases the government will appeal from lower-courts; he also personally approves every case the government presents to the Supreme Court. Amicus Curiae: “a friend of the court.” They may offer additional written briefs and oral arguments. These are people from an interested party but aren’t directly involved in the suit. The chief justice speaks first followed by the other justices in order of seniority. When they vote, it is in reverse order of seniority. To decide a case, a majority of the justices must be in agreement. If a tie occurs, the lower-court decision is left standing. Per curiam opinion: a written opinion explaining the Court’s decision. If the chief justice is in the majority, he will write the document or assign the task to a justice who agrees with him; if he’ s in the minority, the senior justice on the winning side decides. There are three kinds of opinions: Opinion of the Court: reflects the majority’s view. Concurring Opinion: an opinion by one or more justices who agree with the majority’s decision but for different reasons they wish to express. Dissenting Opinion: opinion of the justices on the losing side. 2/5 of the decisions made by the Supreme Court are unanimous.

The Power of the Federal Courts The Power to make Policy: Three measures of the courts power: One measure of that power is that 160 federal laws have been declared unconstitutional. Another measure is the frequency at which the Supreme Court changes its mind. A third measure of the power of the Judiciary is the degree to which courts are willing to handle matters once left to the legislature. Stare decisis: “let the decision stand.” an informal rule of judicial decision-making; judges are obligated to follow the precedents established in prior decisions. Political Question: the determination of congressional district boundaries; to declare something as a matter that the Constitution left entirely to another branch of government to decide for itself. Remedy: a judicial order setting forth what must be done in order to correct a situation that a judge believes to be wrong.

Views of Judicial Activism Pros The federal courts must correct injustices when the other branches of government fail to do so (desegregating schools). The courts are the last resort for many poor and powerless people who cannot otherwise influence new laws. Cons Judges don’t have special expertise; they are lawyers who aren’t experts on designing and managing complex institutions. Federal judges are appointed, not elected, and they are immune to popular control.

Legislation and the Courts Congress has passed laws that contain vague language, which gives the courts opportunities to design remedies. The federal courts are now more likely to be on the defensive in court than they were years ago. The attitudes of the judges greatly affect the decisions they will make, especially when the law gives them wide latitude.

Checks on Judicial Power Congress and the Courts: Congress can impeach judges it doesn’t like. They can also change the composition of the Judiciary by the kinds of appointments the Senate is willing to confirm. Congress can alter the number of judges. If the number increases sharply, the president can appoint judges to his liking. Congress and states can undo a Supreme Court decision that interprets the Constitution by amending that document. On over 30 occasions, where the Court has declared a law unconstitutional, Congress has simply repassed the law. Congress can decide what the entire jurisdiction of the lower courts and the appellate jurisdiction of the Supreme Court shall be.

Public Opinion and the Courts The Court is sensitive to certain bodies of opinion, especially elites (either liberal or conservative) to which its members happen to be attuned. The most active periods in Supreme Court history occurred simultaneously with times when the political system was undergoing profound changes. The people’s confidence in the Court reflects what the government is doing as a whole (1970’s-not much confidence in the Court- Watergate Scandal). Changes in personnel are the reason changes have occurred in the Court (presidents appoint justices who are either more liberal or conservative).