JUDICIARY WHAT DO YOU ALREADY KNOW ABOUT THE JUDICIARY? Article? Appointed?….term? Types of federal courts? (structure) Supreme Court # of justices Current Chief Justice last Associate Justice confirmed 1st African-American 1st Woman 1st Latino (Latina) Current African-American Current Women

Aim: How has the federal judiciary evolved? DO NOW: What do you already know about “judicial review”?

JUDICIARY What is Judicial Review? - the right of the federal courts to declare laws of Congress and acts of the executive branch void and unenforceable if they are judged to be in conflict with the Constitution What court case established the power of judicial review for the Supreme Court? What is the difference between a strict-constructionist approach and an activist approach to interpreting the Constitution? Who is likely to be the “liberal” or “conservative” today?

JUDICIARY DEVELOPMENT OF THE COURTS FOUNDERS probably expected judicial review but not such a large role in policy making FOUNDERS believed that the courts “interpret the law”, not make policy Courts - “least dangerous” branch – according to Alexander Hamilton, in Federalist 78 Judicial review was designed not to enlarge the power of the courts but to confine that of the legislature **things have changed since Hamilton’s time

JUDICIARY FEDERAL COURTS (1787-1865) Issues that dominated the Court Nation building, legitimacy of the federal government, and slavery Court asserts supremacy of the federal government over the states National law – dominant law Supreme Court had power to decide what the Constitution meant Landmark cases: -Marbury v. Madison (1803) -McCulloch v. Maryland (1819) -Dred Scott decision (1857)

JUDICIARY FEDERAL COURTS (1865-1937) Issues that dominated the Courts The Government and the Economy (proper relationship) Restrictions on powers of governments When would economy be restricted (regulated) by states and when by the nation? Resisted regulatory measures? Actually, tried to distinguish between reasonable and unreasonable regulation Evidence shows that major concern was the protection of private property IN ADDITION, the 14th and 15th Amendments construed so narrowly gave limited benefits to blacks

JUDICIARY FEDERAL COURTS (1938-present) Big issues before the Court PERSONAL LIBERTY AND SOCIAL EQUALILTY Enlarged scope of personal freedom and narrowed that of economic freedom Decidedly PRO-REGULATION Broad grants of discretionary authority to bureaucracy Create welfare state FDR attempts Court packing in 1936 Chief Justice Earl Warren – 1953 – begins most activist period in history of the Court (protect rights and liberties of citizens)

Aim: How does the federal judiciary influence U. S Aim: How does the federal judiciary influence U.S. government and politics? DO NOW: Why did Alexander Hamilton consider the federal judiciary to be the least dangerous branch? What is the significance of Marbury v. Madison? What types of issues have dominated the Court since 1938?

STRUCTURE OF FEDERAL COURTS

JUDICIARY SELECTION OF JUDGES (Constitutional Courts) Nominated by … Confirmed by … Term? Considerations (party, ideology, qualifications, competency, “diversity”) “litmus test” – seek out judges with record similar to ideology looking for Senatorial courtesy BOTTOM LINE: doesn’t always work out the way a President would think (examples – Nixon and Warren Burger and Harry Blackmun; Reagan and Sandra Day O’Connor)

U.S. SUPREME COURT: DO YOU KNOW WHOSE WHO?

Current Supreme Court Antonin Scalia, DC 1986– — N.J. 1936   — N.J. 1936 Roman Catholic Anthony M. Kennedy, Calif. 1988– Calif. Clarence Thomas, DC 1991– Ga. 1948 Ruth Bader Ginsburg, DC 1993– N.Y. 1933 Jewish Stephen G. Breyer, Mass. 1994– 1938 John G. Roberts, DC 2005– 1955 Samuel A. Alito, Jr., N.J. 2006– 1950 Sonia Sotomayor N.Y. 2009– 1954 Elena Kagan N.Y. 2010– 1960

JUDICIARY What kinds of matters do Federal Courts deal with? Criminal/civil cases Federal questions Diversity cases

JUDICIARY What falls within the original jurisdiction of the Supreme Court? A CONTROVERSY INVOLVING: Two or more states The U.S. and a state Foreign ambassadors/diplomats State and a citizen of a different state

Aim: How does the federal judiciary influence U. S Aim: How does the federal judiciary influence U.S. government and politics? So,… Describe the structure of the federal judiciary. (3 types of courts) How does one become a federal judge? What factors would a President consider when making appointments to the federal bench? What types of cases are within the “original jurisdiction” of the Supreme Court?

JUDICIARY OTHER TERMS Writ of Certiorari Gideon v. Wainwright In forma pauperis Fee-shifting Standing Sovereign immunity Class-action suits brief

JUDICIARY OTHER TERMS Amicus curiae brief Types of Opinions Opinion of the Court Majority opinion Concurring opinion Dissenting opinion Stare decisis remedy

Aim: How does the federal judiciary influence U. S Aim: How does the federal judiciary influence U.S. government and politics? DO NOW: Why did Alexander Hamilton consider the federal judiciary to be the least dangerous branch of government? What is the difference between judicial activism and judicial restraint? Which philosophy follows “strict constructionism”? Which follows a broad loose interpretation of the constitution? Which is associated with “original intent”? Which is associated with “contemporary meaning”?

Judicial Activism v. Judicial Restraint Correct injustices Institution of last resort for those without vote or influence Congress and state legislatures tolerated segregation of schools Court declared segregation unconstitutional “Contemporary meaning” JUDICIAL RESTRAINT Judges – no specific expertise (schools, prisons, environment) Judges not elected (don’t need an unelected legislature) Immune to popular control Mandates cost ($$$) “original intent”

Checks on Judicial Power NO INDEPENDENT ENFORCEMENT CHECKS BY CONGRESS Can gradually alter composition (appointments, impeachment Alter number of judges Undo S.C. decision by amending Constitution Congress can repass law that Court declared unconstitutional Change jurisdiction of lower courts and appellate jurisdiction of Supreme Court

Checks on Judicial Power MORE CHECKS ON JUDICIAL POWER CHECK BY PUBLIC OPINION Court is aware, especially of elite opinion Ignoring public opinion may destroy legitimacy of the Court (Dred Scott decision) Influences the remedies the Court offers (backing off on busing) Public opinion not only restrains but could energize the Court Activist periods tend to coincide with periods of political change Change in Court today result of Presidential appointments altering composition

JUDICIARY SUMMARY What is the significance of Marbury v. Madison? Describe the structure of the federal judiciary. (3 parts) What types of cases fall within the original jurisdiction of the Supreme Court? What is the difference between judicial restraint and judicial activism? How can the Court be checked (Congress, President, Public opinion)? TAKE OUT HOMEWORK PACKET