Supreme Court Building

Supreme Court Holy temple with priests wearing black robes. Very strange in a democracy Perception of Judges as non-political What role should an unelected institution play in a democracy?

Constitutional Debate Hamilton, Fed #78 – the least dangerous branch – holds neither the purse nor the sword – Lifetime appointment Brutus, Anti-federalist – unelected judiciary – no room for appeal – all powerful expansive judiciary which will subvert state rights

Structure of Federal Judiciary Supreme Court 9 Justices Mostly appellate Hears about 100 out of 10,000 requests U.S. Courts of Appeals 13 districts with 170 judges 3-judge panels hear appeals 33,000 cases per year U.S. District Courts 94 district courts with 650 judges Trial courts with original jurisdiction 225, 000 cases per year State courts

Imperial Judiciary or Least Dangerous Branch? What is judicial review? Can the Appeal and Circuit courts exercise judicial review? Are there any constitutional limits on judicial review? Can congress or president overturn ruling with 2/3rds vote? 3/4ths votes? Does it happen very often? Why?

How does a case get to the Supreme Court? What procedure do judges use? What happens if Supreme Court does not hear a case? Why do the justices agree to hear one case and not another? How much discretion do they have? What are “political questions”?

How the Court Decides Oral argument Conference Opinion writing Forming a majority – Brown v. Board of Education – What are you doing for Lunch – Call me a second rate intellect will you Dissents and concurring opinions

Pre-Bush Supreme Court Ginsburg, Souter, Thomas, Breyer Scalia, Stevens, Rehnquist, O’Connor, Kennedy

The Pre-Bush Court Left – John Paul Stevens dissents on ½ of cases Leaning Left – David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg voted together 62% Leaning Right – Anthony M. Kennedy, Sandra Day O'Connor voted together 64 % Right- Conservative – William H. Rehnquist Right –Movement Conservatives – Thomas and Scalia voted together 82%

Ginsburg, Souter, Breyer and Stevens Scalia, Thomas, Alito, Roberts (CJ)

It’s the Kennedy Court Appointed by President Reagan

It’s the Kennedy Court 2007 voted with the majority in all 24 of the cases decided by votes of 5 to – Kennedy writes the majority opinion – Boumediene v. Bush Guantánamo case, – Kennedy v. Louisiana, the death penalty for child rape – Dada v. Mukasey, procedural rights to immigrants facing deportation

Nominating SC Justices What is the constitutional process? How and why has it changed in recent years? President’s most important decision – Alito, Roberts both under 53

The kabuki dance of “advice and consent” – Clarence Thomas- I have never thought about Roe v. Wade. If I did though, I wouldn’t tell you. Start of the Retirement/Death Watch

Robert Bork Borking

Stealth Strategy Appoint people no one knows anything about David Souter Harriet Miers

Minority Strategy Alberto Gonzalez  Clarence Thomas Miguel Estrada (below)

Respected Liberal/Conservative Jurists Well respected Within ideological mainstream

Nuclear Option v. Filibuster Compromise 51 votes, not 60 for cloture Group of 14 compromise – vowed to filibuster judicial nominees only “under extraordinary circumstances, where each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.” – Votes on Bush nominees to the federal Circuit Courts of Appeals: Janice Rogers Brown, Priscilla Owen, and William Pryo

Alito Confirmation Battle O’Conner –swing vote on abortion, civil rights, environment etc Bush- major executive power in wartime cases Judge Alito (Ct of Appeals) – Catholic/pro life – Former prosector

Death Watch Justice John Paul Stevens - 88 Ruth Bader Ginsburg - 75 David Souter-68

Litmus test for SC Nominees No – Judicial skills – Undermines constitutional system – No reason to treat court’s decisions as authoritative Yes – Everyone else is doing it – Process has always been political – Independence comes after nomination

We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our property under the Constitution. –Chief Justice Hughes, 1907 Importance of precedent! (stare decisis) Judge-Made Law

Interpreting the Constitution What does original intent mean? Judicial restraint? How do you identify original intent? Why should judges use original intent? What are the arguments against original intent? Do conservative justices practice what they preach?

Brown v. Board of Education How did Justices take political considerations into account? Why did they do it? What were consequences? What about present case of race based admissions to universities?

Guantanamo Bay

“The worst of the worst”?

Hamdi v. Rumsfeld and Rasul v. Bush Hamdi v. RumsfeldRasul v. Bush – -combatants are entitled to some neutral adjudicatory process Congress – Detainee Treatment Act Detainee Treatment Act

Detainee Treatment ActDetainee Treatment Act (2005) Detainee Treatment Act no court, justice, or judge shall have jurisdiction to hear or consider-- `(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or `(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba

Scalia- "Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?"

Military Commissions Act (2006) unlawful enemy combatant- determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." forbid explicitly the invocation of the Geneva Conventions Establishes alternative judicial procedures

Boumediene v. Bush and Al Odah v. United States (2008) Justice Kennedy writes the 5-4 majority – prisoners had a right to the habeas corpus under the United States Constitution and that the MCA was an unconstitutional suspension of that right. Kennedy “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is‘”

Scalia’ Dissent MCA provides habeas corpus guarantees "how to handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails." “Guantanamo Bay lies outside the sovereign territory of the United States."

Dissents Roberts –MCA is "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Scalia - "will almost certainly cause more Americans to be killed."

Implementation Courts have few tools to force compliance with rulings Implementation through the Courts – Gideon v. Wainwright Implementation through states – Engel v. Vitale – Brown v. Board

Limits on Judicial Review Are Self Imposed Judicious use of power – Refuses to get involved in “Political questions” – Delays rulings till controversy dies down Roche-- “The court’s power has been maintained by a wise refusal to employ it in unequal combat”

Conclusion the least dangerous branch or an imperial judiciary? – The Tom Delay view But... – a government of limited powers – a written constitution – the court exercises a good deal of restraint – possible to impeach judges