AP GOV: Chapter 14 The Judiciary

Intro to the Judiciary The US is unique in the large role judges play in policy making Judicial review: the right of federal courts to rule on the constitutionality of laws and executive acts There is debate over how the Constitution should be interpreted. Strict constructionist approach: judges should rule based on the exact language of the Constitution Activist approach: judges should discern the underlying principles of the Constitution and assess how best to apply them to contemporary circumstances

The Founders & the Supreme Court (1789-1865) The Founders expected the Supreme Court to have the power of judicial review, but they expected the Court to find and apply existing law, not create new policy. From 1789 until the Civil War, the focus of the Supreme Court was the relationship between the national government and the states’ governments. The SC made it clear that national law is dominant, and that the SC has the power to determine what the Constitution means. Marbury v. Madison (1803) – the SC can declare an act of Congress unconstitutional McCulloch v. Maryland (1819) – federal law is supreme over state law The SC has ruled that it has the right to review the decisions of state courts and overturn them if necessary.

Government and the Economy (1865-1937) Following the Civil War and leading into the New Deal, the Supreme Court debated over when the economy should be regulated by the states vs. the national government.

Government and Political Liberty (1937-Present) From 1937 to 1974, the SC did not overturn any federal laws regarding the regulation of business, but they did overturn 36 laws which violated personal liberties. Activism began to redefine the relationship between citizens and the government, and focused on preventing government trespass.

Federal Court Structure The only federal court specified by the Constitution is the Supreme Court (Article III). Congress has the right to create further courts, and they made two types to handle cases the SC does not need to decide: Constitutional Courts: exercises judicial powers found in Article III, judges are given constitutional protection. Examples: Supreme Court, U.S. Courts of Appeals (12), District Courts (94), Court of International Trade Legislative Courts: set up for a specialized purpose and staffed with judges who have fixed terms and can be removed. Examples: Court of Military Appeals

Selecting Judges All constitutional court judges are nominated by the President and confirmed by the Senate. Party background can affect how judges will behave. The biggest differences occur in cases alleging discrimination based on race or sex and in cases involving rights of the accused. Senatorial courtesy: typically, the Senate will not approve a judge if both senators from the state where the federal district judge is to serve disapprove of the nomination.

The “Litmus Test” Presidents seek judicial appointees who share their political ideologies. Some worry that presidents use a litmus test—a test of ideological purity—to select judges. Many argue judges should be chosen based on qualifications, not political beliefs. Presidents find it difficult to get judges approved who do not pass the litmus test in the eyes of the Senate. The litmus test most greatly impacts Supreme Court nominees—Presidents openly look for nominees who share their philosophies.

Jurisdiction of Federal Courts The U.S. has a dual court system: one state, one federal. Federal courts hear federal-question cases (cases arising under the Constitution, the laws of the US, and treaties) and diversity cases (cases involving citizens of different states). Under the dual sovereignty doctrine, state and federal courts can prosecute the same person for the same conduct. Each level of government has the right to enact laws serving its own purposes. Neither level of government wants the other to be able to block prosecution of an accused person who has the sympathy of authorities at that level. Matters that belong to state courts can be appeled to the U.S. Supreme Court. The SC picks which cases it wants to hear on appeal. At least four justices must agree to hear the case, at which point a writ of certiorari is issued.

Getting to Court The Supreme Court rejects over 96% of the applications for certiorari it receives. Of cases that are approved, costs are very high. If you are indigent, you can file and be heard for free as a pauper—a procedure known as in forma pauperis. If a case is not a criminal case and you cannot afford a lawyer, often interest groups will provide one for you if the case issue is important. Fee shifting: enables the plaintiff to collect its costs from the defendant if the defendant loses. To sue, one must have standing, or entitlement to bring a case. You cannot sue the government without its consent—this is called sovereign immunity. Class-action suit: a case brought into court by a person on behalf of all other people in similar circumstances. Ex: Brown v. Board of Education The Supreme Court will not hear class-action suits unless each and every member of the class was individually notified of the case, except in special cases, such as civil rights issues.

The Supreme Court in Action The Supreme Court is in session for 36 weeks out of the year. Most cases come to the SC via writ of certiorari. Lawyers from each side submit a brief, which includes: facts of the case, the lower-court decision, arguments for their side, and a discussion of other cases the Court has decided bear on the issue The lawyers for each side present their oral arguments in open court, which is limited to a half hour. The federal government is usually represented by their top trial lawyer— the solicitor general. Written briefs and oral arguments can also be submitted by amicus curiae, or “friends of the court” who are interested groups/individuals not directly involved with the suit.

The Court’s Decision The justices retire every Friday to a conference room to vote. The chief justice speaks first and votes last. If there is a tie, the lower-court decision stands. The Supreme Court issues a written opinion explaining its decision: Opinion of the Court: reflects the majority’s view Concurring Opinion: an opinion by one or more justices who agree with the majority’s conclusion, but for different reasons that they wish to express Dissenting Opinion: the opinion of the justices on the losing side

Power of the Federal Courts The courts make policy whenever they reinterpret the law/Constitution or extend the reach of existing laws. How do we know the SC is powerful? More than 130 federal laws have been declared unconstitutional. The SC can change its mind. One rule of judicial decision making is stare decisis, which is the principle of precedent: a court case should be decided in accordance with prior decisions on similar cases. The SC has overruled its own previous decisions in 260 cases since 1810. The Court now hears more matters previously left to the legislature: previously, matters that were a political question (questions the Constitution leaves to the legislative branch) were not heard by the SC. Now, that is no longer a barrier to judicial power. Federal courts impose remedies (a judicial order setting forth what must be done to correct a situation) which go far beyond what is required to “do justice.”

Views of Judicial Activism Judicial activism has always been controversial. Those who support it argue that federal courts must correct injustices when other branches refuse to do so. Those who oppose it say judges have no expertise in matters they are “activists” for, and they are not popularly elected. Some say we have activist courts because we have so many lawyers—the more matters that go to the courts for resolution, the more powerful courts will become. Additionally, it has become easier for people to get their case to courts.

Checks on Judicial Power The Court has no police force or army. The Senate can alter the composition of the judiciary by which appointments it confirms, and it can impeach judges. Congress can undo a SC interpretation of the Constitution by amending the Constitution. Congress can decide what the jurisdiction is of lower courts and the appellate jurisdiction of the SC.