Chapter 14 The Judiciary

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

THEME A: THE HISTORY OF THE FEDERAL JUDICIARY 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 Copyright © Houghton Mifflin Company. All rights reserved.

U.S. District and Appellate Courts Insert map from page 445 in new edition (Map from page 410 in 9e) Administrative Office of the United States Courts (January 1983). Copyright © Houghton Mifflin Company. All rights reserved.

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 http://www.cbsnews.com/video/watch/?id=594676n&tag=mncol;lst;1 Copyright © Houghton Mifflin Company. All rights reserved.

Strong National Government Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

Marshall’s View of Federalism Copyright © Houghton Mifflin Company. All rights reserved.

National Supremacy Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional Copyright © Houghton Mifflin Company. All rights reserved.

Marbury v. Madison (1803) Copyright © Houghton Mifflin Company. All rights reserved.

McCulloch v. Maryland (1819) McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law Copyright © Houghton Mifflin Company. All rights reserved.

McCulloch v. Maryland (1819) Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

Plessy v. Ferguson 1896 http://vitalmedia.thirteen.org/bf09/bf09_vid_plessy/bf09_vid_plessy.mov Copyright © Houghton Mifflin Company. All rights reserved.

Brown v. Board of Education (1954) http://www.youtube.com/watch?v=TTGHLdr-iak Copyright © Houghton Mifflin Company. All rights reserved.

Dred Scott (1857) http://www.youtube.com/watch?v=1q5AgCzPIuA Copyright © Houghton Mifflin Company. All rights reserved.

Roe V. Wade (1973) http://www.youtube.com/watch?v=1q5AgCzPIuA Copyright © Houghton Mifflin Company. All rights reserved.

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 Today’s Backlash: Justice Sunday A middle ground Copyright © Houghton Mifflin Company. All rights reserved.

Minersville v. Gobitis (1940) Children do not have to say pledge? Copyright © Houghton Mifflin Company. All rights reserved.

WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE (1943) In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Copyright © Houghton Mifflin Company. All rights reserved.

Establishment-clause issues A First Amendment challenge to the Pledge of Allegiance concerns the phrase “under God,” which was added by Congress in 1954. The pledge was proposed in 1892 by the children’s magazine The Youth’s Companion, as part of the celebration of the 400th anniversary of Christopher Columbus’ discovery of America. Attributed to clergyman Francis Bellamy, the original version read: “I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all.” Copyright © Houghton Mifflin Company. All rights reserved.

Lemon v. Kurtzman (1971) The Court's decision in this case established the "Lemon test", which details the requirements for legislation concerning religion. Copyright © Houghton Mifflin Company. All rights reserved.

Lemon Test 1. The government's action must have a secular legislative purpose; 2. The government's action must not have the primary effect of either advancing or inhibiting religion; 3. The government's action must not result in an "excessive government entanglement" with religion. If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Copyright © Houghton Mifflin Company. All rights reserved.

4 Cases you should know… Mapp v. Ohio (1961) Gideon v. Wainwright (1963) Escobedo v. Illinois (1964) Miranda v. Arizona (1966) Copyright © Houghton Mifflin Company. All rights reserved.

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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) Copyright © Houghton Mifflin Company. All rights reserved.

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 Court President Bush’s nominates Judge Samuel Alito Copyright © Houghton Mifflin Company. All rights reserved.

Table 14.2: How Partisanship Affects Judicial Attitudes Copyright © Houghton Mifflin Company. All rights reserved.

Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 Break into three slides, if necessary. Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5. Copyright © Houghton Mifflin Company. All rights reserved.

Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 Break into three slides, if necessary. Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5. Copyright © Houghton Mifflin Company. All rights reserved.

Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 Break into three slides, if necessary. Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5. Copyright © Houghton Mifflin Company. All rights reserved.

Discussion Questions for Theme A What problems did the Court have in trying to limit economic regulation in the era between the Civil War and the New Deal? What was the Roosevelt court-packing plan? What does it suggest about the relationship between the Supreme Court and the other branches of government? 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? Copyright © Houghton Mifflin Company. All rights reserved.

THEME B: THE SUPREME COURT IN ACTION) Federal Cases Federal question cases: involving the U.S. Constitution, federal law, or treaties Diversity cases: involving different states, or citizens of different states Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

Figure 14.2: The Jurisdiction of the Federal Courts Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

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: Oral Arguments before Court on Roe v Wade Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

Discussion Questions for Theme B 1. The Theme Summary describes several of the practices and rituals of the Supreme Court. Based on the Summary, how would you describe the culture of this institution? In what ways are its folkways (and thus its culture) similar to or different from the other branches of the government? 2. In what respects is the Supreme Court a political institution? Think carefully about how you are defining political in answering this question. Copyright © Houghton Mifflin Company. All rights reserved.

3. What are the reasons for a greater number of concurring and dissenting opinions in the Court decisions of recent decades? What are the advantages and disadvantages of such outcomes? How do these opinions affect the relationships among the justices? 4. The role of the clerks of the Court is extremely powerful: clerks are the Court’s “agenda setters” in some important ways: they review all incoming petitions, provide research to the justices, and write drafts of the opinions. Most clerks are fresh out of an exclusive law school, are highly motivated by career, and are very intelligent. They generally share the philosophy of the justice they are clerking for, and they will hold this position for only one year. Is this an appropriate way for the Court to manage its workload? What are the advantages and disadvantages of this system? Copyright © Houghton Mifflin Company. All rights reserved.

Arguments for Judicial Activism THEME C: THE POWER OF THE FEDERAL JUDICIARY 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 Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

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 Copyright © Houghton Mifflin Company. All rights reserved.

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 (Mr. Banno video) Opinion in realigning eras may energize court Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally Copyright © Houghton Mifflin Company. All rights reserved.

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. Copyright © Houghton Mifflin Company. All rights reserved.

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? Copyright © Houghton Mifflin Company. All rights reserved.

4. Is the judiciary still the “least dangerous” branch? 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? Copyright © Houghton Mifflin Company. All rights reserved.

Wrap Up 31W Key Ideas from Supplemental Readings The Capitol Steps keep the Supreme Court ALIVE! Copyright © Houghton Mifflin Company. All rights reserved.