the Judiciary

Judicial Review Need independent judges Hamilton – Federalist 78 Right to rule a law or action unconstitutional Need independent judges Hamilton – Federalist 78 None in Great Britain Appointment and tenure Jurisprudence Traditional Originalist Activist Strict-constructionalist Krytocracy – rule by judges

Evolution of the courts National supremacy and slavery Marbury v. Madison McCulloch v. Maryland Dred Scott v. Sanford Government and the economy Plessy v. Ferguson Schenck v. US Political liberty – Brown v. BEO-Topeka State sovereignty – Roe v. Wade Terror and Privacy = 9/11/2001

Structure Supreme Court Required by Article III Lower Federal Courts Created by Congress Constitutional 94 districts - original 12 circuits - appellate Legislative - specialized Much increased in number

Selecting Judges Party effect Ideology Facts of the case Prior rulings Lawyers’ arguments Senatorial courtesy “Blue slip” Not for Supreme Court “Litmus Test”

Jurisdiction Dual court system Federal – from Constitution Federal-question cases Diversity cases State – all else Dual sovereignty doctrine Each level has the right to enact laws serving its own purpose Neither level wants the other to block prosecution

Getting to the Supreme Court Most start in federal districts Petition for appeal Writ of certiorari Lawyers submit briefs Oral arguments Amicus curiae Conference Closed debate Vote and opinion

Access to the Supreme Court Filing is easy and cheap Standing – one is entitled to bring a case Sovereign immunity – cannot sue government without consent Process is long and expensive In forma pauperis Fee shifting Class action suits

Making Decisions Per Curium Opinions Majority Opinion Dissenting Opinion Concurring Opinion Unanimous Opinion

Making Policy Apply settled law Remedies Administratively Legislatively Stare decisis Equal justice

Judicial Activism Why has it increased over time? Unelected judges Too many lawyers Easier to get standing Cost of litigation, class-action suits Vague language in legislation Bureaucratic decisions Attitudes of judges Size, scope of whole government

Constraints No enforcement Congressional checks Confirmation Impeachment Number of judges Amendment Re-pass legislation Change jurisdiction Public opinion