Chapter 16 The Judiciary

The Judiciary: THEN Alexander Hamilton wrote in Federalist Paper No. 78 that the new system of federal courts would be “the least dangerous” branch of government Least dangerous because: 1) Unlike the president, it would not command the sword Execute the laws; punish lawbreakers 2) Unlike Congress, it would not control the purse strings Nowhere in the Constitution was the Supreme Court given the right to declare laws of Congress or decisions of the president to be unconstitutional, though Hamilton argued that such as power was necessary

The Judiciary: NOW Congress used the “necessary and proper” clause to expand their powers The Supreme Court then began to declare many federal and several state laws to be unconstitutional (judicial review) This new found power resulted in many Supreme Court justices Until recently, most justices were confirmed by the Senate Recently, nominations have not received the universal confirmation – The Senate has rejected many nominations today – WHY?

The Judiciary: NOW Congress used the “necessary and proper” clause to expand their powers The Supreme Court then began to declare many federal and several state laws to be unconstitutional (judicial review) This new found power resulted in many Supreme Court justices Until recently, most justices were confirmed by the Senate Recently, nominations have not received the universal confirmation – The Senate has rejected many nominations today – WHY?

Judicial Review Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions It is the chief judicial weapon in the checks and balances system

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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

Constitutional Interpretation Strict construction: judges are bound by the wording of the Constitution Activist: judges should look to the underlying principles of the Constitution Today, most strict constructionists tend to be conservative, most activists tend to be liberal

Development of the Federal Courts Most Founders probably expected judicial review but did not expect the federal courts to play such a large role in policy-making But the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces

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

National Supremacy Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law

1865 to 1936 The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states

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1936 to Present The Court establishes tradition of deferring to the legislature in economic regulation cases The Warren Court provided a liberal protection of rights and liberties against government trespass

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

Selecting Judges Party background has a strong effect on judicial behavior Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U.S. district courts)

Selecting Judges Presidents seek judicial appointees who share their political ideologies This raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmations

Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 Break into three slides, if necessary. 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.

Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 (cont.) Break into three slides, if necessary. 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.

Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 (cont.) Break into three slides, if necessary. 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.

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

Federal Cases Federal question cases: involving the U.S. Constitution, federal law, or treaties Diversity cases: involving different states, or citizens of different states

Federal Cases Some cases that begin in state courts can be appealed to the Supreme Court Controversies between two state governments can only be heard by the Supreme Court

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

Getting to Court 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

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Writs of Certiorari Requires agreement of four justices to hear the case Involves significant federal or constitutional question Involves conflicting decisions by circuit courts Involves Constitutional interpretation by one of the highest state courts

Standing to Sue There must be a real controversy between adversaries Personal harm must be demonstrated Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved

The Supreme Court in Action Most cases arrive through a writ of certiorari Lawyers then submit briefs that set forth the facts of the case, summarizes the lower court decision, gives the argument of that side of the case, and discusses other issues Oral arguments are given by lawyers after briefs are submitted

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 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 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

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

Kinds of Court Opinions Per curiam: brief and unsigned Opinion of the court: majority opinion Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning Dissenting opinion: minority opinion

Arguments for Judicial Activism Courts should correct injustices when other branches or state governments refuse to do so Courts are the last resort for those without the power or influence to gain new laws

Arguments Against Judicial Activism Judges lack expertise in designing and managing complex institutions Initiatives require balancing policy priorities and allocating public revenues Courts are not accountable because judges are not elected

Checks on Judicial Power Judges have no enforcement mechanisms Confirmation and impeachment proceedings Changing the number of judges Revising legislation Amending the Constitution Altering jurisdiction Restricting remedies

Public Opinion and the Courts Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion Opinion in realigning eras may energize court Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally

THEMIS BLIND JUSTICE SCALES & SWORD

THE U.S. SUPREME COURT BUILDING

LOCATION OF THE U.S. SUPREME COURT BUILDING

Chief Justice Associate Justices John Roberts Samuel Alito Stephen Breyer Ruth Bader Ginsberg Elena Kagan Anthony Scalia Sonia Sotomayor Clarence Thomas

2010 Supreme Court Official Photo Goes Here

Participants in the Judicial System Litigants Plaintiff—the party bringing the charge Defendant—the party being charged Jury—the people (normally 12) who often decide the outcome of a case Legal Standing have sustained or likely to sustain a direct injury Justiciable disputes - a case must be capable of being settled as a matter of law.

(Old Court Line-up)

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CONFIRMATION IS A POLITICAL PROCESS

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JOHN MARSHALL 4TH CHIEF JUSTICE OF THE U.S. SUPREME COURT (1801-1835)

EARL WARREN CHIEF JUSTICE 1953-1969 (LIBERAL) (NIXON)

WILLIAM REHNQUIST CHIEF JUSTICE 1986-2005 (CONSERVATIVE) (REAGAN)

JOHN ROBERTS CHIEF JUSTICE 2005 - ???? (CONSERVATIVE) (GEORGE W BUSH)

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.

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