The Judiciary Mr. Ognibene Schenectady High School Government

Key Questions and Objectives of Judiciary Chapter 1.Explain what judicial review is and trace its origins. 2.List and comment on the three eras of varying Supreme Court influences on national policy. 3.Explain what is meant by a dual court system and describe its effects on how cases are processed, decided, and appealed. 4.List the various steps that cases go through to reach the Supreme Court and explain the considerations involved at each step. 5.Discuss the dimensions of power exercised today by the Supreme Court and the opposing viewpoints on an activist Supreme Court.

Judicial Review Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions It is the chief judicial weapon in the checks and balances system THEME A: THE HISTORY OF THE FEDERAL JUDICIARY

To become a member of the Supreme Court: You’re a top lawyer or even more likely, a top judge (at the state or federal level). You’re appointed by a President who agrees with your past decisions (and therefore thinks you’ll agree with his/her stances on the issues). After a hearing by the Senate Judiciary Committee (assuming approval), the entire Senate votes for you.

Senatorial Courtesy Senators have a de facto veto power over (all) judicial nominees, as they consent to any Presidential nomination. If the Senator who hails from the same state as the judicial nominee (and is from the President’s party) does not want the judge to be confirmed, he/she likely will not be supported by the Senate and the nomination will be defeated, so the President will not nominate him/her.

U.S. District and Appellate Courts Administrative Office of the United States Courts.

How do cases get to the Supreme Court?

Constitutional Interpretation Strict construction: judges are bound by the wording of the Constitution Activist: judges should look to the underlying principles of the Constitution Today, most strict constructionists tend to be conservative, most activists tend to be liberal Activist vs. Strict Constructionists Issue: Gay Marriage Same Sex Marriage Debate

Chief Justice John Roberts President Bush’s first nomination to the Court He was NOT a judge at any level of the federal or state court system. He worked for President Reagan in the Attorney General’s office. Conservative 53 years old

Antonin Scalia Most conservative member of the Court Nominated by Reagan He always questions both sides of the case thoroughly. He is the most outspoken conservative & therefore the most controversial. Born in 1936 (turns 72 in 2008)

Anthony Kennedy Nominated by Reagan He’s a key moderate vote. He was THE deciding vote in Bush v. Gore and reportedly was distraught throughout the decision-making process. Born in 1936 (turns 72 in 2008)

Sonia Sotomayor Born in Bronx, New York, on June 25, She earned a B.A. in 1976 from Princeton University, graduating summa cum laude and receiving the university's highest academic honor. In 1979, she earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal. She served as Assistant District Attorney in the New York County District Attorney's Office from 1979– In 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and she served in that role from 1992–1998. She served as a judge on the United States Court of Appeals for the Second Circuit from 1998–2009. President Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26, 2009, and she assumed this role August 8, 2009.

Clarence Thomas He became 2 nd African American on Court when Bush 41 nominated him. Received a lot of negative attention when Anita Hill accused him of sexual harassment before the Senate confirmed him. A strong conservative vote Born in 1948 (turns 60 in 2008)

Ruth Bader Ginsberg Became the 2 nd woman ever to serve on the Supreme Court when Bill Clinton nominated her. Served for 12 years; thinking about retirement? (Born in 1933—turns 75 in 2008) A consistent liberal vote

Stephen Breyer He was nominated by Clinton in He is a solid vote on liberal block of the Court. He clerked for the Supreme Court after Law School. Born in 1938 (turns 70 in 2008)

Samuel Alito He became the 2nd nomination by George W. Bush after he withdrew the nomination of Harriet Meirs. He was a Judge on the Appellate level and also worked for President Reagan (down the hall from John Roberts). A strong conservative vote. Born in 1950 (turns 58 in 2008)

Elena Kagan First Justice to be appointed by Barak Obama (2010), and third female justice to serve on the US Supreme Court. Liberal Born April 28, 1960

There is no C-Span for the Supreme Court! Though you can see the Supreme Court live, there is no taping of hearings for the public to watch. Additionally, most of the Court’s work is behind closed doors.

Here’s a final question to ponder: If the President appoints the Supreme Court justices, how is the Court expected to be impartial?

Do you think that Lady Justice is truly blind in the eyes of the Supreme Court?

Maps of US on each State’s Approach to Gay Marriage

List of States allowing same sex marriage (16) and allowing you to marry your cousin (31). Court Orders - MASSACHUSETTS, CONNECTICUT, IOWA, CALIFORNIA, NEW JERSEY LEGISLATIVE ACTION- VERMONT, NEW HAMPSHIRE, HAWAII, WASHINGTON, D.C., NEW YORK, RHODE ISLAND - DELAWARE, MINNESOTA, ILLINOIS REFERENDUMS - MAINE, MARYLAND, WASHINGTON STATE 1 st Cousins marrying is legal in… Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, New York, Rhode Island, South Carolina, Wisconsin, Massachusetts, Maine, Maryland, Mississippi, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Tennessee, Virginia, West Virginia, Vermont

Development of the Federal Courts Most Founders probably expected judicial review but did not expect the federal courts to play such a large role in policy-making But the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces The Supreme Court | PBS

3 Eras of The USSC (1) National Supremacy Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional Marbury vs. Madison excerpt from PBS McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law Video Explanation

Era 2 Separate, But Equal 1865 to 1936 The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states PBS Video Forced Busing in Boston

Era 3 Civil Rights and Civil Liberties 1936 to Present The Court establishes tradition of deferring to the legislature in economic regulation cases The Warren Court provided a liberal protection of rights and liberties against government trespass Miranda v. Arizona

Selecting Judges Party background has a strong effect on judicial behavior Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U.S. district courts)

Selecting Judges Presidents seek judicial appointees who share their political ideologies This raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmations Reagan decides who to appoint to Supreme CourtReagan decides who to appoint to Supreme Court President Bush’s nominates Judge Samuel Alito

Table 14.2: How Partisanship Affects Judicial Attitudes

Figure 16.1: Female and Minority Judicial Appointments, Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

Figure 16.1: Female and Minority Judicial Appointments, Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

Figure 16.1: Female and Minority Judicial Appointments, Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

Discussion Questions for Theme A 1.What problems did the Court have in trying to limit economic regulation in the era between the Civil War and the New Deal? 2.What was the Roosevelt court-packing plan? What does it suggest about the relationship between the Supreme Court and the other branches of government? 3.How would one distinguish successful from unsuccessful assertions of judicial power? What is it that puts Marbury in one class and Dred Scott in another?

Federal Cases Federal question cases: involving the U.S. Constitution, federal law, or treaties Diversity cases: involving different states, or citizens of different states THEME B: THE SUPREME COURT IN ACTION)

Federal Cases Some cases that begin in state courts can be appealed to the Supreme Court Controversies between two state governments can only be heard by the Supreme Court

Figure 14.2: The Jurisdiction of the Federal Courts

Writs of Certiorari Requires agreement of four justices to hear the case Involves significant federal or constitutional question Involves conflicting decisions by circuit courts Involves Constitutional interpretation by one of the highest state courts

Standing to Sue There must be a real controversy between adversaries Personal harm must be demonstrated Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved

The Supreme Court in Action Most cases arrive through a writ of certiorari Lawyers then submit briefs that set forth the facts of the case, summarizes the lower court decision, gives the argument of that side of the case, and discusses other issues Oral arguments are given by lawyers after briefs are submitted Example: Roe v. WadeRoe v. Wade

Kinds of Court Opinions Per curiam: brief and unsigned Opinion of the court: majority opinion Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning Dissenting opinion: minority opinion

Arguments for Judicial Activism Courts should correct injustices when other branches or state governments refuse to do so Courts are the last resort for those without the power or influence to gain new laws THEME C: THE POWER OF THE FEDERAL JUDICIARY

Arguments Against Judicial Activism Judges lack expertise in designing and managing complex institutions Initiatives require balancing policy priorities and allocating public revenues Courts are not accountable because judges are not elected

Checks on Judicial Power Judges have no enforcement mechanisms Confirmation and impeachment proceedings Justice Alito on the Bork confirmation hearing Changing the number of judges FDR Court Packing Scheme Revising legislation Amending the Constitution Altering jurisdiction Restricting remedies

Public Opinion and the Courts Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion Bush v. Gore and the 2000 Election Opinion in realigning eras may energize court Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally

Figure 14.3: Patterns of Public Confidence in the Court Source: Updated from The Gallup Poll: Public Opinion 1991 (Wilmington, Del.: Scholarly Resources, Inc., 1992), 213.

Discussion Questions for Theme C 1.Why do presidents give careful thought to the political views of prospective judicial nominees? Isn’t legal competence more important? 2.What kinds (and how many) resources are required to bring a case to the Supreme Court? Is the judicial system more accessible than the legislative or executive branches?

3.What sorts of legal doctrines or principles will an activist judge favor? 4.Is the judiciary still the “least dangerous” branch? 5.What are the checks on the power of the judiciary? Are they potent and easily invoked, or weak and difficult to invoke? Why haven’t unpopular decisions, such as those on busing and school prayer, been overturned?