1 The Courts Frank Brooks

2Introduction to American Politics Courts’ Function: Adjudication To “judge” Whether and how the law applies to a particular situation and what to do about it Whether and how the law applies to a particular situation and what to do about it Judge whether/which law has been broken Judge whether/which law has been broken Interpret the meaning of the law Interpret the meaning of the law Determine fault (who? to what extent?) Determine fault (who? to what extent?) Assign punishment or resolve dispute Assign punishment or resolve dispute Political impact of courts Immediate impact on individuals, small groups Immediate impact on individuals, small groups Controversy intrinsic, especially at higher levels Controversy intrinsic, especially at higher levels “rule of law” and “equality under the law” “rule of law” and “equality under the law”

3Introduction to American Politics Least Dangerous Branch? How Powerful are the Courts? Designed to be the weakest branch Hamilton (Federalist #78): "The judiciary... has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE NOR WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty." Hamilton (Federalist #78): "The judiciary... has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE NOR WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty." Direct impact very limited Direct impact very limited Too much court power? “Making law” rather than applying or interpreting “Making law” rather than applying or interpreting Decisions based on politics (partisanship, ideology, interests) rather than LAW Decisions based on politics (partisanship, ideology, interests) rather than LAW Accountability: elite body, anti-democratic Responses Sentencing guidelines Sentencing guidelines Philosophies of judicial decision-making Philosophies of judicial decision-making Appointment battles Appointment battles

4Introduction to American Politics The Courts as Policy-Makers Scope of impact Immediate impact at lowest level when law is “applied” Immediate impact at lowest level when law is “applied” Broader impact in appeals courts when law is interpreted Broader impact in appeals courts when law is interpreted Federal appeals courts have broad scope for interpretation because of Constitution “inspired ambiguity” “inspired ambiguity” Interpretation necessary, so playing politics possible Interpretation necessary, so playing politics possible Judicial review as most obvious example Judicial review as most obvious example Setting remedies as “making policy” Scope of punishment/damages Scope of punishment/damages Attempts to prevent/deter future problems Attempts to prevent/deter future problemsLimitations Facts of the case Facts of the case Precedent and case law Precedent and case law Political reputation Political reputation

5Introduction to American Politics The Supreme Court’s Power Grounded in reputation as authoritative interpreters of the law and the Constitution Expected to interpret, but law’s meaning and political context change over time (hence situational) Expected to interpret, but law’s meaning and political context change over time (hence situational) The highest authority for interpretation The highest authority for interpretation Reputation, i.e. also relational Reputation, i.e. also relational Key relations (audiences for decisions) Congress and the President Congress and the President Judges and legal community Judges and legal community Public opinion, media Public opinion, media

6Introduction to American Politics Philosophies of Judicial Decision-Making How should the law and the Constitution be interpreted? Strict Construction Narrow – focus on the wording, don’t “read into” the text Narrow – focus on the wording, don’t “read into” the text Defer to the understanding of legislators who wrote the law Defer to the understanding of legislators who wrote the law Can refer to “original intent” Can refer to “original intent” Judicial Activism Times change, so meaning of law should too Times change, so meaning of law should too Elected officials can violate law and Constitution Elected officials can violate law and Constitution Wording often vague – needs interpretive framework Wording often vague – needs interpretive framework

7Introduction to American Politics Increasing (Political) Role of Courts Rules of access loosened More laws to interpret More lawyers to push disputes into court Increasing complexity of society and economy Greater use of legal strategies by interest groups Congress and bureaucracy increasingly seen as unresponsive (or responsive to “wrong” interests)