Supreme Court Judiciary – The cornerstone of our democracy

The Judiciary Branch In this chapter we will cover… The Constitution and the National Judiciary The American Legal System The Federal Court System How Federal Court Judges are Selected The Supreme Court Today How the Justices Vote Judicial Policy Making and Implementation

Take Five What powers of “checks and balances” does the Supreme court have?

The Judiciary Alexander Hamilton penned in the Federalist # 78 that the judiciary would be the “least dangerous branch of government. It lacked the teeth of both the other branches of government; it had neither the power of the sword nor the power of the purse.” Today the federal courts are very powerful. Nevertheless, the courts still have two basic limitations: they have neither the power of the purse, nor the of the sword. The court cannot fund programs or their implementation nor can it force compliance with its rulings.

The Constitution and the National Judiciary Article III of the Constitution establishes: – a Supreme Court in which the judicial power of the United States is vested – life tenure or 'good behavior’ for judges – judges receive compensation that cannot be diminished during their service – such inferior courts as Congress may choose to establish – the original jurisdiction of the Supreme Court The intent of Article III was to remedy the failings of the Articles of Confederation which left judicial matters to the states.

Take Five An easy one…which case established judicial review? What is it?

Judicial Review Marbury v. Madison (1803) –Allows the courts to rule on the constitutionality of laws, giving the court the power to strike down or reinforce policy –Judiciary Act of 1789 and the writ of mandamus

Judicial Review Judges have used this power sparingly. The power has only been used about 140 times to strike down acts of Congress. Although more frequently (over 1200 times) to invalidate acts of state legislatures.

The American Legal System The American legal system is a dual system: – state courts--actually 50 different 'systems' – federal courts Both systems have three tiers: – trial courts--litigation begins and courts hear the facts of the case at hand (original jurisdiction) – appellate courts--decide questions of law, not fact (appellate jurisdiction) – high or supreme courts

Federal Selection Process The selection of judges is a very political process. Judges are nominated by the president and confirmed by the Senate. –Often presidents solicit suggestions from members of the House of Representatives, Senators, their political party, and others. Provides president opportunity to put philosophical stamp on federal courts

Public Influence on Justices Justices are NOT elected, appointed by Prez However, not entirely immune to public opinion 1.Appointed by Prez, agree with his ideologies, Prez was elected, chosen because of bias 2.Justices are aware of public opinion, and are aware that decisions that flagrantly go against public opinion will not be implemented

Appointment President appoints judges for ALL federal court vacancies Senate must confirm all nominations by majority vote (Advice and consent) Senatorial courtesy – tradition started by G.Washington to seek approval from local senators over locally appointed judges

Nomination Process No constitutional qualifications Competence Ideology/Policy Preferences Rewards Pursuit of Political Support Religion Race and gender Elena Kagan

Federal Court System Step 1 – DISTRICT COURTS –94 US Dist. – Hear 342,000 cases/yr –Trial by jury (only federal court with jury) Step 2 – APPEAL (CIRCUIT) COURTS –12 Courts of Appeal – Hear 61,000 cases/yr –Panel of 3 judges, sometimes more –No cases start here, review district court decisions –(IL, IN, and WI in the 7 th circuit)

Federal Court System Step 3 – US Supreme Court –2003 – Argued 84 cases, decided 71 –Hear appeals – writ of certiorari –Rule of 4 – 4 justices needed to agree to hear a case Chief Justice John Roberts

Types of Opinions When an opinion is written (a decision), it often takes months and many drafts –Majority Opinion – justices in the majority must draft an opinion setting out the reasons for their decision –Concurring Opinion – justices who agree for other reasons can give their opinion –Dissenting Opinion – justices who disagree with the opinion write their side

Implementation “John Marshall has rendered his decision; now let him enforce it!” – Andrew Jackson “All deliberate speed” – Chief Earl Warren –10 years after Brown only 1% of Southern schools were desegregated Court must rely on branches, states, and officials to enforce its ruling

Take Five What does the term Stare decisis mean?

Conservatism vs. Liberalism Justices are supposed to be “above politics” However, they do have personal ideologies –EX. – CJ Earl Warren ( ) and CJ Warren Burger ( ) were very liberal –CJ William Rehnquist ( ) and CJ John Roberts (2005-?) swing conservative

How the Justices Vote? Legal Factors Judicial Philosophy – Judicial Restraint - advocates minimalist roles for judges – Judicial Activism - feels that judges should use the law to promote justice, equality, and personal liberty. – Strict interpretation- rule on basis of Constitution as it is written, resists interpretation or interpreting it to fit contemporary issues(Scalia) – “Living Constitution” philosophy- evolution of Const. to contemporary world (Breyer) Precedent – Prior judicial decisions serve as a rule for settling subsequent cases of a similar nature. Stare decisis—doctrine of precedent

Extra-Legal Factors Behavioral Characteristics – The personal experiences of the justices affect how they vote. (Early poverty, job experience, friends and relatives all affect how decisions are made.) Ideology – Ideological beliefs influence justices' voting patterns. Liberal or conservative The “Attitudinal Model” – A justice's attitudes affect voting behavior. Public Opinion – Justices watch TV, read newspapers, and go to the store like everyone else. They are not insulated from public opinion and are probably swayed by it some of the time.

All judges make policy. This was particularly noticeable following the Court ordered desegregation in 1954 Brown ruling. Reminder: courts do not have the power to implement their decisions. The executive branch must enforce the Court’s decisions.

Constraints on the Power of Federal Courts 1.Adversarial system – decision must be made between 2 choices, and court can’t bring up an issue 2.Justiciable dispute – must judge actual situations, not hypothetical situations 3. Political question – absence of law to rule on a case and the court calls on the Congress to create law Ex. – gay marriage – equal protection

Checks on the SC President appoints all judges Congress must confirm appointed judges Congress may alter the structure of the court system (# of courts and justices) Congress has the power to impeach judges Congress may amend the Constitution if the Courts find a law unconstitutional –Ex. Income tax originally found unconstitutionally so Congress added 16 th amendment

Judicial and Political Philosophy Liberal Leans to the left on public policy and would vote Democrat Conservative Leans to the right on public policy and would vote Republican Judicial Activism Judges should interpret law loosely, using their power to promote their preferred political and social goals. Judges are said to be activists when they are likely to interject their own values in court decision Judicial Restraint Legislators, not judges, should make the laws. Judges are said to exercise judicial restraint when they rule closely to statutes and previous cases when reaching their decisions. They follow the “original intent” of the framers. FreedomOrder Equality Freedom

Take Five… How is the issue of “Don’t Ask Don’t Tell” applicable to the terms of judicial restraint?

According to a 1990 poll, only 23% of Americans knew how many justices sit on the Supreme Court, and two thirds could not name a single member. In 1998, a poll of teenagers showed that only 2% could name the Chief Justice. The Supreme Court, and the federal court system, have a number of powers and some significant limitations. The courts are peopled by individuals like all of us who are influenced by participation in society.

The “new” court… Chief Justice John Roberts (George W) Associates: –Antonin Scalia (Reagan) –Anthony Kennedy (Reagan) –Clarence Thomas (Bush Sr) –Ruth Ginsburg (Clinton) –Stephen Breyer (Clinton) –Samuel Alito (George W) –Sonia Sotomayor (Obama) –Elena Kagan (Obama)