Judicial Policymaking November 25, 2017 Judicial Policymaking

Judicial review is the power of courts to declare unconstitutional the actions of the other branches and units of government. Judicial review

Marbury v. Madison The U.S. Supreme Court exercised the power of judicial review for the first time in Marbury v. Madison (1803).

Constitutional law Constitutional law is the Constitution and its interpretation. This is an important point: Constitutional law is both the Constitution and the courts’ interpretation of the Constitution.

Hughes “We are under a Constitution, but the Constitution is what the judges say it is.” --Charles Evans Hughes, Chief Justice of the United States, 1930-1941

Judicial Policymaking How judges courts make policy What judges and courts don’t do Pass laws Issue executive orders Make laws Issue vetoes President Congress Decide cases Interpret law Interpret the Constitution Rule on legal disputes Find actions and laws constitutional or unconstitutional Write opinions Congress President Who does each of these actions?

“The least dangerous branch” “The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” What does “sword or the purse” mean? Control of the military and the power of the purse.

Checks on Judicial Power The Supreme Court must wait for a case to come to it. It cannot go out and manufacture a case and appeal it through the court system. The court is reactive. It acts in reaction to the policy actions of other branches and units of government. Congress and the president can rewrite a law to overcome the Court’s interpretation of the law. Congress and the states can amend the Constitution to overcome the Court’s interpretation of the Constitution. Decisions don’t enforce themselves. The appointment process is the ultimate check on the judiciary.

Politics & Judges The U.S. Supreme Court is closely divided between two blocs of justices.

Conservative judges Conservative judges favor government interests over criminal defendants, interpret narrowly the constitutional guarantees of equal rights for women and minorities, support corporate interests against the claims of individual workers or consumers, and rule against federal government involvement in local policy issues.

Liberal judges Liberal judges are more inclined than their conservative counterparts to favor judicial underdogs, such as consumers, workers, criminal defendants, and members of minority groups. They tend to support the federal government in federalism disputes over the relative power of the states and the national government.

A Divided Court Ruth Bader Ginsburg (Clinton) Stephen Breyer (Clinton) Liberal bloc Conservative bloc Ruth Bader Ginsburg (Clinton) Stephen Breyer (Clinton) Sonia Sotomayor (Obama) Elena Kagan (Obama) Clarence Thomas (GHW Bush) John Roberts (GW Bush) Anthony Kennedy (Reagan) Gene Gorsuch (Trump) What do these folks have in common? What do these folks have in common? They were appointed by Republican presidents. They were appointed by Democratic presidents.

Most important man in America?

Anthony Kennedy Associate Justice Anthony Kennedy (a Reagan appointee) may be the key member of the U.S. Supreme Court. When the Court’s nine justices divide 5-4, Kennedy is in the majority more than any other justice. He is conservative, but not consistently conservative.

Anthony Kennedy’s vote often decides the outcome of important cases. Kennedy has been the swing vote on cases involving affirmative action in higher education, voting rights, campaign finance, and same-sex marriage. It’s Anthony Kennedy’s world. The rest of us just live in it.

What You Have Learned What is judicial review? What is the significance of Marbury v. Madison? What is constitutional law? Why did the framers consider the judiciary the “least dangerous branch?” What checks are there on the power of the courts? How is today’s court politically divided? Why is Anthony Kennedy the key justice?