Case Closed: Processes and Decisions of the Supreme Court What is the impact of judicial review on other federal branches? What is the difference between judicial activism and judicial restraint? What is the relationship between stare decisis and precedents?

“Never forget…it is a Constitution we are expounding.” Chief Justice John Marshall

Remember…? Main jobs of the Supreme Court as a result of the Marbury decision and the Constitution: carry out justice to decide the constitutionality of law and its execution Final interpreter of US Constitution Judicial review: the power of the courts to review acts of other branches of government and the states

Remember… How does the Supreme Court decide what cases will be heard? Writ of certiorari (Latin: “to be informed”): request for the Court to order up the records from a lower court to review the case “Rule of Four”: when considering a case, at least FOUR justices of the Court must vote to consider a case before it can be heard

What is the process of granting a writ? “Review on a writ of certiorari is not a matter of right, but of judicial discretion...granted only for compelling reasons.” --US Supreme Court The case must come from a U.S. court of appeals, a special three-judge district court, or a state court of last resort The case MUST involve a federal question—questions of federal constitutional law or federal statute, action, or treaty.

100 million cases filed in U.S. state and federal trial courts Federal Courts Applications for S.C. review by appeal or writ of certiorari filed by lawyers Cert pool (clerks help justices select most important cases to discuss) State Courts Justices decide in conference which cases out of their discussion to hear (RULE OF FOUR)

When did the Rule of Four REALLY matter? When cases are appealed to the Court, some cases become more important to review than others, especially in the examples below: Brown v. Board of Education of Topeka, Kansas (1954) United States v. Nixon (1974) Snyder v. Phelps (2011)

Deciding the case, pt. 1 The Court sits for two consecutive weeks per month. At these sessions: From Monday to Wednesday, justices listen to oral arguments by lawyers on both sides of the case On Wednesday and Friday, justices meet in secret conferences to decide the cases Each justice in order of seniority asked their opinion by CJ CJ’s vote equal weight as other justices At least 6 must be present to decide a case; if there is a tie, the lower court decision is left standing VOTE IS NOT FINAL YET! After the two weeks, the Court recesses and the justices work privately on paperwork, considering arguments they’ve heard and study petitions for other cases.

Reading questions Why does the Judiciary Committee put prospective justices through the “litmus test”? What role does a filibuster have in the selection of a new justice of the Court? Why would the Senate reject a nominee? How many have been rejected in total? Why might some people decide not to apply for a writ of cert? How can this be overcome?

Deciding the case, pt. 2 They also work on their opinions—written statements on cases they have already decided (at least one written per case) As important as decision: set precedents, way to communicate with other branches and the people Four kinds of opinions: Unanimous—all justices vote the same way Majority—expresses views of majority of justices Concurring—expresses views of those that agree with majority, but for different reason(s) Dissenting—expresses opinions of justices of those disagreeing with majority (“losing side”) This could become the majority opinion later!

How are decisions made? precedent: a previous judicial decision that serves as a rule for settling subsequent (later) cases of a similar nature (become important cases for later reference) stare decisis: in Court rulings, a reliance on precedents or past decisions to make a decision in the current case What is the relationship between precedents and stare decisis? Why do precedents matter? How would stare decisis influence decisions made by justices in a case?

Compare: judicial activism: a philosophy/idea of decision making that argues judges should use their power broadly to further justice (equality, personal liberties) judicial restraint: a philosophy/idea of decision making that argues courts should allow decisions of other branches of government to stand, even if they offend a judge’s own sense of principles How would the use of these ideas by a judge impact their decision?

Judicial Activism or Judicial Restraint? What details tell you how the cartoonist feels about the court’s philosophy?

Would an advocate of judicial activism or of judicial restraint “just call balls and strikes”?

Judicial Activism or Judicial Restraint?

“Judges are like Umpires.” Judicial Restraint or Judicial Activism?