Chapter 13 The Judiciary

WHO GOVERNS? TO WHAT ENDS? Why should federal judges serve for life? Why should federal courts be able to declare laws unconstitutional? Should federal judges only interpret existing laws or should they be able to create new laws? Copyright © 2011 Cengage

The Idea of Judicial Review I:A-B Judicial Review – the power of courts to declare laws unconstitutional Judicial Restraint Approach – judges should decide cases strictly on the basis of the language of the Constitution Activist Approach – judges should discern the general principles underlying the Constitution and apply them to modern circumstances Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

The Development of the Federal Courts II:A-E National Supremacy and Slavery Marbury v Madison (1803) McCulloch v Maryland (1819) Dred Scot decision (1857) Government and the Economy Government and Political Liberty The Revival of State Sovereignty Copyright © 2011 Cengage

Judicial Review Marbury v. Madison (1803) Allows the courts to rule on the constitutionality of laws, giving the court the power to strike down or reinforce policy Judiciary Act of 1789 and the writ of mandamus Set number of Chief Justices and Lower Courts Mandamus: “We command” Supreme Court could declare a congressional act unconstitutional. Power granted to federal government should be construed broadly. Federal law is supreme over state law.

Library of Congress/LC-USZ62-44166 Roger B. Taney, chief justice from 1836 to 1864, wrote the Dred Scott decision, which asserted that blacks were not citizens of the United 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 decision was intense, at least in the North, as is evident from this poster announcing a mass meeting “to consider the atrocious decision.” p. 434 Copyright © 2011 Cengage

Copyright © 2011 Cengage

Bettmann/Corbis 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 Copyright © 2011 Cengage

Map 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). Copyright © 2011 Cengage

Court Packing Copyright © 2011 Cengage

The Structure of the Federal Courts III:A-B Lower Federal Courts Constitutional Court District courts Courts of appeal Legislative Court Court of Military Appeals Selecting Judges Senatorial Courtesy The “Litmus Test” Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

The Structure of the Federal Courts III:B Selecting Judges Senatorial Courtesy The “Litmus Test” Copyright © 2011 Cengage

Copyright © 2011 Cengage

Figure 16.1 Female and Minority Judicial 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. Copyright © 2011 Cengage

Figure 16.1 Female and Minority Judicial 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. Copyright © 2011 Cengage

Figure 16. 2 Confirmation Rates for Nominees to the U. S Figure 16.2 Confirmation Rates for Nominees to the U.S. Court of Appeals (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. Copyright © 2011 Cengage

Karen Bleier/AFP/Getty Images Sonia Sotomayor became the third female and first Hispanic justice on the Supreme Court. p. 440 Copyright © 2011 Cengage

Copyright © 2011 Cengage

Did I Pass? Did I Pass? Passes the litmus test Appointed by President Because… Passes the litmus test a) Presidents seek judicial appointees who share political ideologies b) Has caused different circuits to come to different rulings about similar cases c) gender, ethnicity, experience etc. Concerns a) Ideological tests are too dominant & has caused delays in securing Senate confirmations b) Greatest impact on Supreme

Presidential Influence

Appointment President appoints judges for ALL federal court vacancies Senate must confirm all nominations by majority vote (Advice and consent) Senatorial courtesy – tradition started by G.Washington to seek approval from local senators over locally appointed judges

Senate Confirmations Reagan’s appointment of Robert Bork was contentious due to the judge’s radical right wing ideology Even a few Republicans did not support his nomination Do you want to be Borked? Not if you are up for a presidential nomination!

Bork Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

The Jurisdiction of the Federal Courts IV:A-B Federal-question cases – Cases concerning the Constitution, federal laws, or treaties Diversity cases – Cases involving citizens of different states who can bring suit in federal courts Writ of certiorari – An order by a higher court directing a lower court to send up a case for review. Copyright © 2011 Cengage

Figure 16.3 The Jurisdiction of the Federal Courts Replace with jpeg, p. 441 p. 441 Copyright © 2011 Cengage

Copyright © 2011 Cengage

Route to Supreme Court Step 1 – DISTRICT COURTS 94 US Dist. – Hear 342,000 cases/yr Trial by jury (only federal court with jury) Step 2 – APPEAL (CIRCUIT) COURTS 12 Courts of Appeal – Hear 61,000 cases/yr Panel of 3 judges, sometimes more No cases start here, review district court decisions (Florida, Alabama & Georgia 11th circuit)

Federal Court System Step 3 – US Supreme Court – Passive 2003 – Argued 84 cases, decided 71 Hear appeals – writ of certiorari Rule of 4 – 4 justices needed to agree to hear a case Chief Justice John Roberts

Getting to Court V:A-D In forma pauperis Fee Shifting Standing Class Action Suits Carl Iwasaki/Time Life Pictures/Getty Images 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 1954 landmark Supreme Court decision Brown v. Board of Education. p. 445 Copyright © 2011 Cengage

Copyright © 2011 Cengage

Copyright © 2011 Cengage

Pop quiz 3 Draw and identify the 3 groups of the Iron Triangle. What is it called when the president courteously informs a Senator of the same political party as the President, that they are going to nominate someone from their state to a Judicial branch judgeship? Florida is under what Circuit/Appallete court? How many Supreme court justices are there today? How many does it take to give a hearing “Cert”?

The Supreme Court in Action VI:A-F Brief Amicus curiae Per curiam opinion Opinion of the court Concurring opinion Dissenting opinion Include picture of the current Supreme Court, p. 447 Copyright © 2011 Cengage

Types of Opinions When an opinion (a decision) is written it often takes months and many drafts Majority Opinion – justices in the majority must draft an opinion setting out the reasons for their decision Concurring Opinion – justices who agree for other reasons can give their opinion Dissenting Opinion – justices who disagree with the opinion write their side Per curiam (opinion): brief and unsigned

Charles Dharapak/AP Photo The members of the Supreme Court, front row, from left are: Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia, and Clarence Thomas. Back row, from left are: Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447 Copyright © 2011 Cengage

The Power of the Federal Courts VII:A-D The Power to Make Policy Stare decisis Political question Remedy Views of Judicial Activism Legislation and the Courts Alex Webb/Magnum Photos The activism of federal courts is exemplified by the sweeping orders they have issued to correct such problems as overcrowded prisons. p. 448 Copyright © 2011 Cengage

Checks on Judicial Power VIII:A-D Congress and the Courts Confirmations Impeachment Number of judges Jurisdiction Public Opinion and the Courts Bettmann/Corbis 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 Copyright © 2011 Cengage

Implementation “John Marshall has rendered his decision; now let him enforce it!” – Andrew Jackson “All deliberate speed” – Chief Earl Warren 10 years after Brown only 1% of Southern schools were desegregated Court must rely on branches, states, and officials to enforce its ruling

Conservatism vs. Liberalism Justices are supposed to be “above politics” However, they do have personal ideologies EX. – Chief Justice Earl Warren (1953-69) and Chief Justice Warren Burger (1969-1986) were very liberal Chief Justice William Rehnquist (1989-2005) and Chief Justice John Roberts (2005-?) swing conservative

Figure 16.4 Public Confidence in the Court, 1974 - 2006 Replace with jpeg, p. 453 Source: The Gallup Poll. Copyright © 2011 Cengage

Constraints on the Power of Federal Courts Adversarial system – decision must be made between 2 choices, and court can’t bring up an issue Justiciable dispute – must judge actual situations, not hypothetical situations 3. Political question – absence of law to rule on a case and the court calls on the Congress to create law Ex. – gay marriage – equal protection

Checks on the SC President appoints all judges Congress must confirm appointed judges Congress may alter the structure of the court system (# of courts and justices) Congress has the power to impeach judges Congress may amend the Constitution if the Courts find a law unconstitutional Ex. Income tax originally found unconstitutional so Congress added 16th amendment

Legislative Responses Supreme Court decisions can be undone by a) Revising legislation b) Amending the Constitution c) Altering jurisdiction of the Court d) Restricting Court remedies

Judicial and Political Philosophy Judicial Activism Judges should interpret law loosely, using their power to promote their preferred political and social goals. Judges are said to be activists when they are likely to interject their own values in court decision. They make law. Equality Liberal Leans to the left on public policy and would vote Democrat Conservative Leans to the right on public policy and would vote Republican Freedom Order Freedom Judicial Restraint Legislators, not judges, should make the laws. Judges are said to exercise judicial restraint when they rule closely to statute and previous cases when reaching their decisions. They follow their perceived “original intent” of the framers.

WHAT WOULD YOU DO? M E M O R A N D U M To: Senator Ann Gilbert From: Amy Wilson, legislative assistant The Supreme Court has held that the attorney general cannot use his authority over federally controlled drugs to block the implementation of the Oregon “Death With Dignity” law. Now some of your colleagues want to enact a federal equivalent of that law that would allow physicians to prescribe deadly drugs to patients who request them. Copyright © 2011 Cengage

WHAT WOULD YOU DO? Arguments for: 1. The law respects the people’s rights to choose the time and place of their own death. 2. It is already permissible to post “Do Not Resuscitate” orders on the charts of terminally ill patients. 3. Physicians can be held to high standards in implementing the law. Copyright © 2011 Cengage

WHAT WOULD YOU DO? Arguments against: 1. The law will corrupt the role of doctors as many think has happened in Holland, where a similar law has led some physicians to kill patients prematurely or without justification. 2. Such a law will lead some physicians to neglect or ignore the desires of the patient. 3. This law will undermine the more important goal of helping patients overcome pain and depression. Copyright © 2011 Cengage

WHAT WOULD YOU DO? Your decision: Support the law? Oppose the law? Copyright © 2011 Cengage