The Federal Judiciary The third branch

Trends: The Supreme Court functions mainly as an appellate court The judiciary has become increasingly powerful as a policymaking body Decisions are constrained by the Constitution, federal statutes, and precedents

The Supreme Court 9 members Appointed by president; confirmed by the Senate (simple majority) Life term No constitutional requirements Is the only court created in and by the Constitution

Jurisdiction Original JurisdictionAppellate Jurisdiction Case is heard for the first time In Supreme Court: ▫State v. State ▫State v. Federal ▫Federal v. State ▫Diplomats Not very many cases are OJ ▫None in the last three terms Authority to Review cases that have been heard in lower courts Tests whether the lower court acted in accordance with the law Almost all cases fall into this category

Selecting and Deciding Judicial Review Established: Marbury v. Madison, 1803 Precedent: A decision that sets the rule for future cases Writ of certiorari: the Supreme Court decides to hear a case ▫of 8,000 -> 80 (1%) ▫Most likely to hear a case requested by the solicitor general ▫Rule of 4 Cases are not selected to correct errors of lower courts; they are selected to resolve legal issues ▫Inconsistency in lower courts

Court Opinions: The opinion with which a majority of justices agree is called: The opinion of the losing side is called:

Appointed and Confirmed: John Roberts Antonin Scalia Anthony Kennedy Clarence Thomas Ruth Bader Ginsberg Stephen Breyer Samuel Alito Sonia Sotomayor Elena Kagen George W. Bush, 2005 Reagan, 1986 Reagan, 1988 George H.W. Bush, 1991 Clinton, 1993 Clinton, 1994 George W. Bush, 2006 Obama, 2009 Obama, 2010

How they vote how they vote

What are the politics of choosing? The politics of nominations:The politics of confirmations: Presidents pick nominees that: ▫will help his party’s electoral ambition (win future elections) ▫further policy goals and preferences ▫fit a certain demographic  Gender, race, region, religion, etc. Confirmations are more likely if the candidate is: ▫Moderate ▫Properly vetted ▫The Senate was consulted  Senatorial courtesy  Lower courts only Confirmations are less likely if: ▫Divided government ▫Filibuster ▫Scandal

And Public Opinion

How are justices insulated from public opinion? Appointed, not elected Serve for life terms Court sets own agenda (Certiorari: Rule of 4) Salaries cannot be reduced Court proceedings are behind closed doors

Even so, why don’t courts deviate too much from public opinion? Confirmation process Can be checked by Congress ▫Amendments (only happened once) ▫Rewrite laws ▫Congress can create and destroy courts ▫Impeachment Can be checked by the Executive ▫Reliance on executive branch to enforce ▫Clemency powers Legitimacy (Marbury v. Madison)

The Nature of Decisions Courts are restrained by 1.The Constitution 2.Statutes 3.Administrative Laws Any decision they make must be consistent with prior rulings, which reflects the philosophy of stare decisis (let the decision stand)

To what extent do justices adhere to precedent? Restraint:Activism: Justices generally adhere to the language of precedent and the legislature Policy issues should be decided by elected lawmakers Justices interpret the Constitution, statutes, and precedents based on contemporary meaning Policies should not be upheld when core principles (liberty, equality, and self-government) are threatened

How far should justices go in substituting their opinion over that of elected officials? Originalism TheoryLiving Constitution Theory More conservative Constitution should be interpreted based on when it was written What did the framers mean at the time? Strict Constructionists More liberal Framers used broad language intentionally, which makes the Constitution adapt over time How does the Constitution protect basic liberties now? Loose Constructionists

Restraint? Activism? Originalism? Living? Marbury v. Madison Brown v. BOE Roe v. Wade Schenk v. United States Dred Scott v. Sanford Activism/Living Restraint/Originalism

CJ: Earl Warren (The Warren Court) Most liberal (activist) Court ever: only 35% of decisions were considered “conservative” ▫Brown v. BOE 1954 ▫Mapp v. Ohio 1961 ▫Gideon v. Wainwright 1963 ▫Escobedo v. Illinois 1964 ▫Miranda v. Arizona 1966 ▫Terry v. Ohio 1968 ▫Engle v. Vitale 1962 ▫Loving v. Virginia 1967 ▫Tinker v. Des Moines 1969

CJ: Warren Burger (The Burger Court) 1969 – 1986 A Conservative Shift: 55% of decisions were conservative ▫US v. Nixon 1974 ▫Bowers v Hardwick 1986 ▫INS v. Chadha 1983 ▫Gregg v. Georgia 1976 ▫California Regents v. Bakke 1978 ▫But wait: Roe v. Wade 1973

CJ: Rehnquist (The Rehnquist Court) 1986 – % of decisions were conservative ▫Romer v. Evans 1996 ▫Bush v. Gore 2000 ▫Gratz v. Bollinger 2003 ▫Grutter v. Bollinger 2003 Federalism, Equal Rights, School Prayer

CJ: Roberts (The Roberts Court) 2006 – present First 5 years: 58% Conservative 2010 – 2011: 65% Conservative ▫Detainee Cases ▫Citizens United v. FEC 2010 ▫ Morse v. Frederick 2008

On the docket this year:

Issue: Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.

Issue: Whether a legislative prayer practice violates the Establishment Clause of the First Amendment.

Issue: Whether the Massachusetts law which makes it a crime for protestors come within thirty five feet or less from “a reproductive health care facility.”

Issue: Whether the EPA determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gasses.

Issue: Whether the Religious Freedom Restoration Act of 1993 (RFRA), which provides that the government “shall not substantially burden a person’s exercise of religion” allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.