11 Theory of Knowledge/Government Ms. Halle Bauer The Judicial Branch 11 Theory of Knowledge/Government Ms. Halle Bauer

The Role of the Courts What is the role of the judicial branch of government? Why does it exist? Hamilton’s Federalist Papers: The judicial branch is the “least dangerous” in American government because it carries “neither force nor will but merely judgment.” Is this true today?

The Evolution of the Court System Jay and Ellsworth Courts 1789-1800 Demonstrated that the courts existed to mediate individual conflicts, not to shape policy Marshall and Taney Courts 1801-1864 Increased powers and role of the Federal government and courts Civil War-New Deal Courts Defined “reasonable” and “unreasonable” government intervention in economic affairs Warren Court Focused on rights and political liberty with an increase in activist decisions 1992-Present Returned to limiting the role of the federal government in state affairs

Types of Law Statutory Law Codified in the written legal system Criminal Law Violations of laws against the criminal code Common Law Unwritten law based on precedent Stare decisis “Let the decision stand” Civil Law Disputes or conflicts between two parties not necessarily involving society as a whole

Judicial Powers Judicial Review But how? The Federal courts have the power and the responsibility to determine if laws are consistent with the Constitution. But how? Strict constructionists use judicial restraint. Judges should make decisions solely on the language of the law. Loose constructionists take the activist approach. Judges should make decisions using the underlying principles of the law to guide policy on moral and/or economic grounds.

How do you think judges should interpret the law?

Jurisdiction Federal Jurisdiction State Jurisdiction Question Cases directly concern federal laws, treaties, or the Constitution Diversity Cases involve citizens from two or more different states The Dual Sovereignty Doctrine allows both state and federal courts to try an individual for the same act Other cases in which… A federal law is broken A person declares bankruptcy Two states are in conflict Most criminal cases Most contract cases Family law Cases involving state laws

Original Jurisdiction The U.S. Supreme Court has original jurisdiction for cases involving… Two or more states The U.S. government and a state Ambassadors and diplomats A state and a citizen of a different state Original Jurisdiction The U.S. Supreme Court

The Federal Court System Constitutional Court Legislative Court District Courts 94 total, with at least one in each state The lowest federal courts Where trials take place Courts of Appeals In 11 circuits plus D.C. and a federal circuit court Where appeals take place Ordered by Congress for specific purposes Court of Military Appeals

Judges…as Policy Makers? Courts have ruled over 1000 federal laws unconstitutional, and the Supreme Court has reversed its decisions over 200 times since 1810. When judges reinterpret the law or the Constitution in significant ways, policy changes. In the summer of 2013, the Supreme Court struck down the Defense of Marriage Act. Since then 5 federal courts have decided using U.S. v. Windsor as a precedent.

Our Judges… Senatorial courtesy is a practice allowing senators from a state affected by a nomination to influence the candidate. Senators often look at the political ideology and philosophies of nominees as a “litmus test” during confirmation hearings.

What does the Supreme Court do? 1. Create a docket. Review appeal applications and issue a writ of certiorari (cert) directing a lower court to send up cases that at least 4 justices want to hear

What does the Supreme Court do? 2. Hear Cases. Read briefs Containing lawyers’ arguments Amicus curiae: friend-of-the- court briefs Hear oral arguments Solicitor General represents U.S. government Consult expert opinions In journals and former cases Deliberate and decide Majority wins

3. Write opinions. (Such as with Shelby County v. Holder in 2013) Opinion of the Court “Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Concurring Opinion “By leaving the inevitable conclusion unstated, the court needlessly prolongs the demise of that provision [of the Voting Rights Act]”. I would find Provision 5 unconstitutional.” Dissenting Opinion “Just as buildings in California have a greater need to be earthquake proofed, places where there is a greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination.” Per Curiam Opinion

Is Judicial Review the Final Say?

Is Judicial Review the Final Say? Checks on the Supreme Court’s power: Congress shapes the courts by confirming appointees to the bench. Congress can impeach judges. Congress can change the number of judges in the federal system. Congress can amend the Constitution. Congress can repass slightly amended laws. Congress can determine the rules of jurisdiction in many cases.