Unit IV: Institutions Ch. 16 – The Judiciary

I. The Development of Federal Courts Introduction: power of judicial review: Two views of interpreting the Constitution: Judicial restraint: Judicial activism: Does NOT mean political liberals are liberal constructionists and political conservatives are strict constructionists.

Three Historical Eras in the Evolution of the Federal Courts Founders’ view: Judges interpret the law and do not make policy Federalist 78 (Hamilton) argued that the Courts were the least dangerous branch, although the federal judiciary has evolved towards judicial activism Era 1: National Supremacy and Slavery (1787-1865) Marshall Court Marbury vs. Madison, 1803 McCulloch vs. Maryland, 1819 Gibbons v. Ogden, 1824 Chief Justice Taney and the Dred Scott decision (1857)

Private property rights Judicial activism emerged Era 2: Government and the Economy (1865-1937) Era 3: Government and Political Liberty (1938-present) Conflict Private property rights Judicial activism emerged Both the 14th and 15th Amendments were narrowly applied to blacks personal liberties and becomes active in defining rights 1990s: shift to state sovereignty; limits on supremacy of the federal government US v. Lopez, 1995

II. The Structure of the Federal Courts Only the ________is created by the Constitution (Article ??) A. Congress created 2 types of lower federal courts: Constitutional courts (“regular”) Supreme Court and also gives Congress the power to create “inferior” (lower) federal courts. Judges in these courts hold life terms. Three levels of constitutional courts: Day 2

1) The District Courts Federal trial courts in which 90% of the federal cases are heard Created There are ?? district courts and ??? judges presiding Cases are tried by ????? Use grand juries to issue indictments, but a petit jury decides outcome Jurisdiction: May try 3 types of cases: Decisions may be appealed to:

2) The Circuit Courts of Appeals Created by Congress in 1891 to relieve the Supreme Court’s docket of appeals from district courts ?? courts of appeals: ?? judicial circuits plus ?? ?? judges on the circuit plus 1 Supreme Court justice assigned to each of the appellate courts Cases are usually heard by a panel of 3 judges, except when “en banc” _________ Jurisdiction:

Types of Federal Courts 2. Legislative (“special”) courts, also called Article I courts: Created to ____________________ Judges in these courts hold _______ Examples:

B. Selecting Judges Appointed by the president with the “advice and consent” of the Senate. Article III states they shall hold their offices They can be impeached and removed by Congress Compensation 2010: District Court - $174,000 Courts of Appeals - $184,500 Supreme Court - $213,900 (C.J. $223,500) http://www.csmonitor.com/Business/2010/0409/John-Paul-Stevens-Supreme-Court-retirees-keep-lifetime-pay http://www.uscourts.gov/JudgesAndJudgeships/JudicialCompensation/PaychartsTables/SalariesOfMembersOfCongressAndFederalJudges.aspx

C. Factors Affecting Selection of Federal Judges Senatorial Courtesy Senate Judiciary Committee Senate: Political party Diversity: Age: Presidential influence continues then, even after they leave office Ideology: Presidents try to appoint people of similar philosophy. ABA “paper trail” Number of judges: Nominations to know: Bork Thomas Souter Miers

D. Federal Attorneys Attorney General: Solicitor General: U.S. Attorneys:

III. Jurisdiction of the Federal Courts Dual system of courts: federal and state courts, reflective of federalism Jurisdiction is Federal courts hear cases based on: Subject matter (federal-question cases): (3 types) Parties involved (diversity cases): (5 types) All cases not heard by the federal courts are heard in States’ courts

Types of Jurisdiction Exclusive Jurisdiction: Concurrent Jurisdiction: Original Jurisdiction: Appellate Jurisdiction: Supreme Court can exercise both original and appellate jurisdiction

IV. Getting to Court Only those with standing may challenge a law or government action. Types of law: Statutory: Common: Based on a system of unwritten law Unwritten laws are based on precedents. stare decisis Criminal: Civil: Writ of mandamus, injunctions, class action lawsuits, breach of contract, slander Day 4

V. The Supreme Court ______, in cases involving: A. Background B. Jurisdiction Only court mentioned in the Constitution 8 associate justices, 1 Chief Justice Set by Congress Key powers: Judicial review (Marbury) Power to overrule earlier S.C. decisions ______, in cases involving: Appellate, in cases from Cases from appellate jurisdiction are far more numerous than from original jurisdiction

C. How Cases Reach the Supreme Court SCOTUS controls its own docket Thousands of requests are made, relatively few are granted Rule of 4: writ of certiorari attorneys’ briefs per curiam

D. The Supreme Court at Work Terms: Hear cases Oral Arguments: Briefs, amicus curiae can also be filed Friday Conferences:

Assigning the opinion is a key power of the CJ – 6. Types of Opinions: 7. Assigning and Politics of Opinions Unanimous Majority opinion Dissenting opinion Concurring opinions Assigning the opinion is a key power of the CJ – Opinion must structure the argument so as to keep the support of at least 4 other justices

Voting blocs on the current Supreme Court Liberals: 1. Elena Kagan (Obama, 2010, 50) 2. Ruth Bader Ginsburg (Clinton, 1993, 77) 3. Stephen Breyer (Clinton, 1994, 72) 4. Sonia Sotomayor, (Obama, 2009, 56) Conservatives: 1. John Roberts (Bush 43, 2005, 56) 2. Antonin Scalia (Reagan, 1986, 74) 3. Clarence Thomas (Bush 41, 1991, 62) 4. Samuel Alito (Bush 43, 2006, 60) Swing: 1. Anthony Kennedy (Reagan, 1987, 74) Seated, from left are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, and Associate Justice Ruth Bader Ginsburg. Standing, from left are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan.

VI. The Power of the Federal Courts A. The Power to Make Policy: By interpretation By extending the reach of existing law By designing remedies Measures of power: Judicial review not following stare decisis Determining political questions Kinds of remedies imposed Sweeping orders from Constitution or interpretation of law Tues. 2/15

B. Judicial Activism C. Judicial Restraint Philosophy that the courts should take an active role in solving society’s problems Examples: Brown v. Board, 1954 Texas v. Johnson, 1989 and U.S. v. Eichmann, 1990 U.S. v. Lopez, 1995 Clinton v. NY, 1998 Bush v. Gore, 2000 Atkins v. VA, 2002 Lawrence v. Texas, 2003 D.C. v. Heller, 2008 Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems. Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers. Courts should merely interpret the law rather than make law. Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted. (Originalism)

From “In Defense of Judicial Activism” – D. Root Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights. For instance, in his dissent in Lawrence v. Texas (2003), where the majority nullified a state law banning homosexual activity, Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new ‘constitutional right' by a Court that is impatient of democratic change." Indeed, "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."Look up Scalia's dissents in cases as different as Planned Parenthood v. Casey (1992), where the majority upheld abortion rights, or Boumediene v. Bush (2008), where the Court recognized habeas corpus rights for enemy combatants, and you'll find similar arguments. As Scalia likes to say, when the Constitution is vague or unclear, the courts should let the people, via their elected representatives, have their way. Reason.com

D. Historical Developments 20th Century (before 1937): FDR’s “court packing” attempt (1937) Now, conservatives complained about the liberal Court being too activist, especially the Warren Court (1954-69). Rights of the accused (Miranda v AZ, 1966) Civil Rights (Brown v Board, 1954) Civil Liberties (Engel v. Vitale, 1962) Political Issues (Baker v. Carr, 1962) The Burger Court (1969-86) decisions like Roe v. Wade, 1973 and UC Regents v. Bakke, 1978 Full circle: Rehnquist Court (1986-2005) US v. Lopez, 1995 Bush v. Gore, 2000 U.S. v. Oakland Cannabis Buyers Cooperative, 2001 Similar views about Roberts Court (2005-present): DC v. Heller, 2008, McDonald v. Chicago (2009), Citizens United (2010)

VII. Checks on Judicial Power Courts can make decisions, but cannot enforce them. State and local governments may not carry it out. Presidential appointment of judges Stare decisis Existing laws The Constitution Public opinion Congress: Senate confirmation Impeachment and removal Increasing the number of judges and courts Passing Constitutional amendments-Court cannot strike down something as unconstitutional if it’s in the Constitution. Determining jurisdiction of the courts