The Judicial Branch Chapter 16

Constitutional Underpinnings and Early Legislation Constitution gives very little power to the Judicial Branch in the Constitution They are not allowed to declare anything unconstitutional under Article 3 in the Constitution Federalist 78 and Anti-federalist 78-79 discuss the fact that the judicial branch will be the most important and the least dangerous, but also the least powerful Marbury v. Madison – established judicial review The power of the courts to declare laws unconstitutional Judicial review is the most important check that the judicial branch has on the other 2 branches Interpretation of the Constitution Judicial restraint – the view that judges should decide cases with a strict and literal interpretation of the language and laws written into the constitution. Judicial activism – the view that judges should interpret the constitution in a way that is relevant to modern circumstances. Which approach do you agree with more and why?

Federalism and SCOTUS Relevant cases: From 1789-Civil War Era – the courts generally gave federal law supremacy McCulloch v. Maryland – national bank – federal law is supreme Eventually the Supreme Court will give more power back to the states Relevant cases: Gibbons v. Ogden – gives feds power to regulate commerce US v. Lopex – Banning firearms not covered by commerce clause – limits fed power US v. Morrison – attacks against women are not interstate commerce – limits fed power Alden v. Maine – upholds 11th amendment – protects states from lawsuits from citizens in other states

SCOTUS, the Economy, and Civil Liberties After 1936, SCOTUS stopped imposing any restrictions on state or federal power to regulate the economy From 1937-1974 – SCOTUS did not overturn any federal law designed to regulate business However, it did overturn more than 36 laws that violated personal political liberties Restriction of freedom of speech, denying passports to communists, revoking of citizenship, withholding mail, restricting benefits, etc.

Structure of the Courts The Supreme Court is the only federal court required by the Constitution Congress has created 2 kinds of lower federal courts Constitutional Courts – Judges protected by Constitution District Courts Courts of Appeals Legislative Courts Set up by Congress for a special purpose Court of Military Appeals and territorial courts

Jurisdiction of the Federal Courts Dual court system – state and federal Some cases can be heard in either state or federal courts Citizens of different states want to sue each other Breaking both federal and state law Federal hears all cases under the Constitution, laws, and treaties of the US, as well as cases involving citizens of different states – the rest is left to the states SCOTUS does not have to hear any appeal it doesn’t want to hear Can call cases up they want to hear with a writ of certiorari Usually used if 2 or more federal courts have decided the same issues in different ways The highest court has held a federal or state law in violation of the constitution SCOTUS rejects 96% applications for certiorari it receives

Getting to Court Each party in a suit must pay their own way, which can get expensive Fee shifting – allows the plaintiff – the person who starts the suit to collect fees from the defendant if the defendant loses Cannot sue whenever you want, there has to be standing Standing = who is authorized to start a lawsuit Actual controversy among adversaries Show that you have been harmed by the law or practice Being a taxpayer does not entitle you to challenge constitutionality Cannot sue the government without its consent – sovereign immunity Can sue government officials Class-action suits Case brought into court that applies to all other persons in similar circumstances Brown v. Board of Education was a class action suit Class action suits happen against corporations all the time.

Selecting Judges Party background influences how judges rule Decisions are also shaped by the facts of the case, prior rulings, arguments presented Presidents sometimes make the mistake of trying to predict how their nominees will rule In theory, a President nominates a qualified person to be a judge and senate approves or denies based on the qualifications However, if the Senator of a state does not like a district court judge, they will not be nominated, so the President typically chooses nominees that the top Senators like Litmus Test A test of ideological purity in selecting judges Views on abortion, gay marriage, etc.

SCOTUS in Action In session 36 weeks out of the year – early October to end of June Each justice reads the briefs in their individual offices Brief = document that sets forth the facts of the case, summarize lower-court decision, arguments for each side, and other relevant case law They then hear oral arguments in the courtroom Each attorney has no more than 30 minutes The attorney for the federal government (if the case say US v. …) is the solicitor general of the US – after attorney general and deputy attorney general Usually allowed so the justices can question each side There may be written briefs and oral arguments given by “friends of the court” – amicus curiae – an interested party not directly involved in the suit Don’t usually sway the court – it is a lobbying tactic for interest groups to take a side on an issue Then discuss their decisions with one another in a conference room where no outsider is allowed – every Friday they meet to discuss cases heard that week Chief Justice speaks first, then the others in order of seniority They then vote – a tie means the lower court opinion stands Concurring opinion – opinion by one or more justices who agree with the majority’s conclusion Dissenting opinion – opinion of the justices on the losing side Blocs: Conservative = Alito, Roberts, Thomas Liberal = Sotomayor, Breyer, Ginsburg, Kagan Swing = Kennedy

Current Justices

Powers of the Court Power to make policy Precedents or stare decisis – “let the decision stand” This means that the meaning of the law can be constantly changing Declaring laws unconstitutional More than 160 laws have been declared unconstitutional Political questions Issues that SCOTUS will leave to the branch of government it is assigned to in the constitution – like congressional districts Remedies A judicial order enforcing a right of redressing a wrong EX: if a prisoner is wrongfully treated in CA, the court can choose to revamp the entire prison system in the state

Checks on Judicial Power Judge has no police force or army Congress Chooses to approve or deny appointments Can impeach judges Can alter number – add as many as it wants Can undo a court decision by altering the unconstitutional law Can alter jurisdiction of the lower courts – narrowing it or withdrawing jurisdiction Executive – appoints justices Public Opinion’s influence The courts are often subject o public opinion During times that the country is more activist, the court has become more activist Courts are subject to interest group influence as well – amicus curiae briefs Courts have widened their decisions to include the whole population or whole groups of people