Unit Three: Institutions of Government Chapter 16... The Judiciary

Very strong judiciary in the USA Making Policy Very strong judiciary in the USA Judicial Review Declare void and unenforceable Laws of Congress Acts of the Executive Branch

Judicial Review Making Policy Controversy Strict-constructionist view – explicitly in the Constitution? Activist view – what are the principles IMPLIED in the Constitution? Trends 70 years ago – activists were Conservative Now – activists more Liberal (current Supreme Court excluded)

Development of the Federal Courts They judged disputes between people with direct dealings between the two people Apply existing law What the LAW requires (states) Not what the judge BELIEVES the law requires

Development of the Federal Courts Historical Eras 1787 – 1865 Nation building Issues Legitimacy of the Federal Government Marbury v. Madison McCulloch v. Maryland Slavery

Development of the Federal Courts Historical Eras 1865 – 1937 Industrialization Issues Government and the economy Amendment XIV & businesses Protect people from government meddling of property without due process Extended to “businesses” are people too Amendments XIV and XV Narrow interpretation Limited rights of African Americans

Development of the Federal Courts Historical Eras 1938 – now Social revolution Issues Personal liberties Social equality “Packing the Court” scheme (1937?) Political liberties Civil Rights States rights Very modern movement Allows states more power in regards to federal actions

Development of the Federal Courts The Structure of the Federal Courts Only the SCOTUS is mentioned in the Constitution

The National Judiciary Structure

The National Judiciary Structure District Courts Most local level of federal courts 94 District Courts First time cases only – NO APPEALS Hears the most cases of any level

The National Judiciary Structure Appellate Courts Courts of appeals And ONLY appeals 12 Circuit Courts PLUS Federal Circuit Court Nationwide reach Located in DC

The National Judiciary Structure The Supreme Court 9 Justices Takes appeals by selection Sometimes takes original cases

Development of the Federal Courts The Structure of the Federal Courts Congress created the other fed. courts Constitutional Courts Has the same constitutionally granted powers as the SCOTUS Protection of federal judges Can’t be fired Can’t have salary cut District Courts Courts of Appeals

Development of the Federal Courts The Structure of the Federal Courts Congress created the other fed. courts Legislative Courts Specialized purpose Judges Fixed terms of office Can be fired Can have salaries cut

Development of the Federal Courts Selecting Judges Ideology Important for determining behavior Other factors determining behavior Facts of the case Prior rulings by other judges A VERY strong argument presented by the lawyers

Development of the Federal Courts Selecting Judges Senatorial courtesy Senior senator of the state where the judge will be stationed PRIOR approval is needed

Development of the Federal Courts Selecting Judges Litmus Test One or two ideological issues which can be make or break issues Has allowed different interpretations in different circuits based on regional “litmuses”

Development of the Federal Courts Selecting Judges Litmus Test Grown into a MAJOR deal Will it even get out of committee? (Judiciary Committee) Will it die in a Senatorial filibuster? Great importance at SCOTUS No senatorial courtesy Share presidential philosophy

The Jurisdiction of the Federal Courts Dual Court System See Diagram in your packet

The Jurisdiction of the Federal Courts Federal Cases Most originate in district courts Most are simple law issues Not Constitutional issues Don’t often lead to policy

The Jurisdiction of the Federal Courts Federal Cases SCOTUS Only hears cases it wants to hear Writ of certiorari Considers the petitions (writs) Four or more justices want to hear it, it goes before the Court

The Jurisdiction of the Federal Courts Federal Cases SCOTUS Often grants certiorari when Two or more circuit courts o appeals have decided in different ways The highest state court (Supreme Court of Pennsylvania) has ruled on a Constitutional issue State law in violation of the Constitution State law is in agreement with the Constitution

The Jurisdiction of the Federal Courts Federal Cases SCOTUS Only accepts about 100 per session (about 4%) Huge workload Law Clerks have a lot of power Deciding which cases should be heard Writing some of the justices’ opinions

Getting to Court Equality All parties are equal before the courts (legally equal) Economic equality? High costs Pay for petitioning Pay for lawyers Pay for any previous hearings on the case Time

Getting to Court (Economic) Equality Poor people can file In forma pauperis Free Criminal cases, lawyers are supplied to you

Getting to Court (Economic) Equality Interest Groups may sponsor you ACLU Liberal Free speech issues Center for Individual Rights Conservative Racial quotas and Affirmative Action

Getting to Court (Economic) Equality Interest Groups may sponsor you Sometimes the interest groups leads the way Finding the plaintiff Mobilizing strategy Finding legal allies

Getting to Court Fee Shifting Usually each party must pay his or her own fees Fee shifting permits plaintiff to collect court costs Can even collect money from government Code 1983 Sovereign immunity Government can only be sued if it agrees it can be sued Consent granted Contracts Negligence

Getting to Court Standing Person may bring a case to court Criteria Actual controversy Must have been harmed just being a tax payer does not qualify must be harmed … physically financially emotionally (very VERY tough to prove)

Getting to Court Class action suits Case brought before the court By one person On behalf of the MANY who have been hurt in the same situation Civil rights Rights of prisoners Anti-trust lawsuits All members of the class MUST be notified

Getting to Court Summation To get the courts Must have Standing Resources

The Supreme Court in Action Most cases get to court by way of writ of certiorari Lawyers present BRIEFS Summarizes the facts of the case Summarizes the lower court’s decision Gives arguments Cites legal precedents

The Supreme Court in Action Lawyers present Oral Arguments Strictly timed sessions Highlight the brief Answer questions posed by judges

The Supreme Court in Action Other key players Solicitor General Nation’s top trial lawyer Often in front of Supreme Court Friends of the Court AMICUS CURIAE Interested parties not directly involved A form of judicial lobbying Legal Periodicals read by Justices

The Supreme Court in Action Conference room debate Strictly private Discuss the case Majority wins Tie goes to the lower court’s ruling

The Supreme Court in Action Writing an opinion Per curiam opinion Explains the majority decision Brief Unsigned

The Supreme Court in Action Detailed opinions Opinion of the Court (Majority Opinion) Longer Signed by those in the majority Concurring Opinion Agrees with the majority But for different reasons Dissenting opinion The losing opinion

The Supreme Court in Action Judges will often vote for a position They oppose ideologically They support the wording of the law

The Power of the Federal Courts The power to make policy Interpretation of the Constitution Measures of the power Laws have been declared unconstitutional

The Power of the Federal Courts The power to make policy Court often changes its mind Stare decisis Precedent set Importance Makes laws valid over time (stability) Equal justice means laws need to be decided pretty much the same

The Power of the Federal Courts Measures of the power Court often changes its mind Reasons to change Times change The previous or lower courts could have been wrong

The Power of the Federal Courts Measures of the power Courts are willing to handle matters once handled by the legislatures Political Questions Questions which the Constitution implies a different branch should deal with Lessened in modern times

The Power of the Federal Courts Measures of the power Remedies Actions which must happen to correct a situation Basis for declaring a remedy Constitutional interpretation Interpretation of federal laws

The Power of the Federal Courts Judicial Activism Controversial Supporters Courts serve the purpose of correcting the actions of the other branches The peoples’ last resort Critics Judges don’t have the expertise Judges don’t have the long term effects in mind Judges are not elected

The Power of the Federal Courts Judicial Activism Growth Government has grown larger Easier for people to get “Standing” Easier to pay costs Judges now accept activism as part of their role

The Power of the Federal Courts Legislation and the Courts Congress passes vaguely worded laws Allows more judicial interpretation Some laws are bound to be contested by one side or the other before the courts

Checks on Judicial Power Judicial Restraint encourages judges to limit the exercise of their own power asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional though what counts as obviously unconstitutional is itself a matter of some debate.

Checks on Judicial Power Judicial Restraint vs. Activism

Checks on Judicial Power No army  No way to ENFORCE a decision

Checks on Judicial Power Congress Can alter composition of courts Appointments Takes a long time Does create change in direction of the Court Impeachments Not a big impact Ideology not usually an acceptable rationale

Checks on Judicial Power Congress Can alter the number of judges Lower courts Supreme Court has public shield Can pass an Amendment Revise the struck-down law Decide jurisdiction of court

Checks on Judicial Power Public Opinion Affects Judges Judges read Judges are sensitive to certain opinions Judges are human