Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions 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 It is the chief judicial weapon in the checks and balances system blog.abhinav.com

District Courts, Appellate Courts, and the Supreme Court District Courts, Appellate Courts, and the Supreme Court District Courts have original jurisdiction for most cases District Courts have original jurisdiction for most cases Supreme Court has original jurisdiction in three types of cases: disputes between the states, disputes between a state(s) and the federal government, and disputes with foreign diplomats Supreme Court has original jurisdiction in three types of cases: disputes between the states, disputes between a state(s) and the federal government, and disputes with foreign diplomats

Administrative Office of the United States Courts (January 1983).

Strict construction: judges are bound by the wording of the Constitution Strict construction: judges are bound by the wording of the Constitution Activist: judges should look to the underlying principles of the Constitution Activist: judges should look to the underlying principles of the Constitution yglesias.thinkprogress.org ourlivingconstitution.com

Today, most strict constructionists tend to be conservative, most activists tend to be liberal Today, most strict constructionists tend to be conservative, most activists tend to be liberal Ex. Does the 9 th Amendment grant a “right to privacy?” – abortion, assisted suicide Ex. Does the 9 th Amendment grant a “right to privacy?” – abortion, assisted suicide crooksandliars.com

Most Founders probably expected judicial review but did not expect the federal courts to play such a large role in policy-making Most Founders probably expected judicial review but did not expect the federal courts to play such a large role in policy-making The traditional view is that courts hear disputes between parties and supply relief to the wronged party The traditional view is that courts hear disputes between parties and supply relief to the wronged party But the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces But the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces

Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly (by virtue of the necessary but proper clause), and federal law is supreme over state law McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly (by virtue of the necessary but proper clause), and federal law is supreme over state law

The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business Corporations and businesses are treated by the courts like they are individuals Corporations and businesses are treated by the courts like they are individuals herightwingfringe.com

The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states – Plessy v Ferguson The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states – Plessy v Ferguson score.rims.k12.ca.us

The Court establishes tradition of deferring to the legislature in economic regulation cases – Change came with the election of FDR – Court packing efforts – “the switch in time that saved nine” The Court establishes tradition of deferring to the legislature in economic regulation cases – Change came with the election of FDR – Court packing efforts – “the switch in time that saved nine” dipity.co m

The Warren Court provided a liberal protection of rights and liberties against arbitrary government intervention The Warren Court provided a liberal protection of rights and liberties against arbitrary government intervention postbourgie.com Earl Warren

Racial segregation: Brown v. Board of Education Racial segregation: Brown v. Board of Education Racial segregation: Brown v. Board of Education Racial segregation: Brown v. Board of Education Redistricting, and malapportionment: Baker v. Carr, Redistricting, and malapportionment: Baker v. Carr, Redistricting, and malapportionment: Redistricting, and malapportionment: Criminal procedure:, Mapp v. Ohio, Miranda v. Arizona, Escobedo v. Illinois, Gideon v. Wainwright, Katz v. United States Criminal procedure:, Mapp v. Ohio, Miranda v. Arizona, Escobedo v. Illinois, Gideon v. Wainwright, Katz v. United States Criminal procedure:, Mapp v. Ohio, Miranda v. Arizona, Escobedo v. Illinois, Gideon v. Wainwright, Katz v. United States Criminal procedure:, Mapp v. Ohio, Miranda v. Arizona, Escobedo v. Illinois, Gideon v. Wainwright, Katz v. United States Free speech: New York Times Co. v. Sullivan, Brandenburg v. Ohio Tinker v. Des Moines School District Free speech: New York Times Co. v. Sullivan, Brandenburg v. Ohio Tinker v. Des Moines School District Free speech: New York Times Co. v. Sullivan, Brandenburg v. Ohio Tinker v. Des Moines School District Free speech: New York Times Co. v. Sullivan, Brandenburg v. Ohio Tinker v. Des Moines School District Establishment Clause: Engel v. Vitale, Establishment Clause: Engel v. Vitale, Establishment Clause: Establishment Clause: Right to privacy and reproductive rights: Griswold v. Connecticut Right to privacy and reproductive rights: Griswold v. Connecticut Right to privacy and reproductive rights: Griswold v. Connecticut Right to privacy and reproductive rights: Griswold v. Connecticut Cruel and unusual punishment: Trop v. Dulles Cruel and unusual punishment: Trop v. Dulles Cruel and unusual punishment: Trop v. Dulles Cruel and unusual punishment: Trop v. Dulles

Senatorial Courtesy - 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) Senatorial Courtesy - 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) Party background has a strong effect on judicial behavior Party background has a strong effect on judicial behavior

Presidents seek judicial appointees who share their political ideologies Presidents seek judicial appointees who share their political ideologies This raises concerns that ideological tests – ”litmus tests” - are too dominant, and has caused delays in securing Senate confirmations This raises concerns that ideological tests – ”litmus tests” - are too dominant, and has caused delays in securing Senate confirmations chem.wisc.edu

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

We have a dual court system We have a dual court system Dual Sovereignty each government has a right to enact and adjudicate its own laws Dual Sovereignty each government has a right to enact and adjudicate its own laws Federal Jurisdiction See the next slide Federal Jurisdiction See the next slide State Jurisdiction State crimes, people in conflict with others from their own state State Jurisdiction State crimes, people in conflict with others from their own state Dual Jurisdiction - state & federal crimes or people from different states in conflict Dual Jurisdiction - state & federal crimes or people from different states in conflict

Federal question cases: involving the U.S. Constitution, federal law, or treaties Federal question cases: involving the U.S. Constitution, federal law, or treaties Diversity cases: involving different states, or citizens of different states Diversity cases: involving different states, or citizens of different states The Code of Laws of the United States of America (United States Code, U.S. Code or U.S.C.) is a compilation and codification of the general and permanent federal laws of the United States. besttaxcode.com

21 Conduct trials at which witnesses and other evidence are either presented to a jury or a judge to determine the facts regarding a particular case. These courts have power to accept evidence from witnesses and make factual determinations regarding the evidence presented.

These courts determine what punishment (in criminal cases) or what damages (in civil cases) should be awarded in federal cases. These courts determine what punishment (in criminal cases) or what damages (in civil cases) should be awarded in federal cases. 22 organaholic.com

. 23 The appeals court considers only the record (that is, the papers the parties filed and the transcripts and any exhibits from any trial) from the trial court, and the legal arguments of the parties. It does not consider the guilt or innocence of the party involved.

24 Moreover, because the US Supreme Court chooses to hear fewer than 100 of the more than 10,000 cases filed annually, the US Courts of Appeals serve as the final arbiter on most federal cases. en.wikipedia.org

Some cases that begin in state courts can be appealed to the Supreme Court if they deal with questions of federal v. state law or the US Constitution Some cases that begin in state courts can be appealed to the Supreme Court if they deal with questions of federal v. state law or the US Constitution Controversies between two state governments can only be heard by the Supreme Court Controversies between two state governments can only be heard by the Supreme Court

Expensive: while filing fees are nominal getting records and retaining lawyers can be expensive. Expensive: while filing fees are nominal getting records and retaining lawyers can be expensive. Time Consuming Time Consuming In forma pauperis filing is free for the poor – in criminal cases, it could result in the appointment of a lawyer In forma pauperis filing is free for the poor – in criminal cases, it could result in the appointment of a lawyer

Special interest groups may pay for, manage, or even “create” a case Special interest groups may pay for, manage, or even “create” a case Fee Shifting: Some cases allow the plaintiff to collect court costs in addition to judgment if they win Fee Shifting: Some cases allow the plaintiff to collect court costs in addition to judgment if they win 27

Federal judges may interpret the law only through the resolution of actual legal disputes. Federal judges may interpret the law only through the resolution of actual legal disputes. A court cannot attempt to correct a problem on its own initiative, or to answer a hypothetical legal question. A court cannot attempt to correct a problem on its own initiative, or to answer a hypothetical legal question. 28

The plaintiff in a federal lawsuit also must have legal "standing" to ask the court for a decision. That means the plaintiff must have been aggrieved, or legally harmed in some way, by the defendant. (Pledge) The plaintiff in a federal lawsuit also must have legal "standing" to ask the court for a decision. That means the plaintiff must have been aggrieved, or legally harmed in some way, by the defendant. (Pledge) Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved 29

The case must present a category of dispute that the law in question was designed to address, and it must be a complaint that the court has the power to remedy. The case must present a category of dispute that the law in question was designed to address, and it must be a complaint that the court has the power to remedy. The case cannot be "moot," that is, it must present an ongoing problem for the court to resolve. The case cannot be "moot," that is, it must present an ongoing problem for the court to resolve.

TYPES OF CASES HEARD TYPES OF CASES HEARD Cases that deal with the constitutionality of a law; Cases that deal with the constitutionality of a law; Cases involving the laws and treaties of the U.S.; Cases involving the laws and treaties of the U.S.; Cases involving ambassadors and public ministers; Cases involving ambassadors and public ministers; Disputes between two or more states; Disputes between two or more states; Admiralty law; Admiralty law; Bankruptcy; and Bankruptcy; and Habeas corpus issues. Habeas corpus issues. 31

Most criminal cases Most criminal cases Probate (involving wills and estates) Probate (involving wills and estates) Most contract cases Most contract cases Tort cases (personal injuries) Tort cases (personal injuries) Family law (marriages, divorces, adoptions), etc Family law (marriages, divorces, adoptions), etc State courts are the final deciders of state laws and constitutions. Their interpretations of federal law or the U.S. Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may choose to hear or not to hear such cases. State courts are the final deciders of state laws and constitutions. Their interpretations of federal law or the U.S. Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may choose to hear or not to hear such cases. 32

Sovereign Immunity the federal government may not be sued unless it has waived its immunity or consented to be sued Sovereign Immunity the federal government may not be sued unless it has waived its immunity or consented to be sued Class Action Suits a suit brought by a person on behalf of him/herself and others (et al) Class Action Suits a suit brought by a person on behalf of him/herself and others (et al) Ex. Wal-Mart discrimination suit Ex. Wal-Mart discrimination suit 33

The current procedure is that a party in a case may apply to the Supreme Court to review a ruling of the circuit court. This petitioning is called a writ of certiorari. the Supreme Court may choose at its sole discretion, to review any lower court ruling The current procedure is that a party in a case may apply to the Supreme Court to review a ruling of the circuit court. This petitioning is called a writ of certiorari. the Supreme Court may choose at its sole discretion, to review any lower court ruling Requires agreement of four justices to hear the case Requires agreement of four justices to hear the case Involves significant federal or constitutional question Involves significant federal or constitutional question

Involves conflicting decisions by circuit courts Involves conflicting decisions by circuit courts Involves Constitutional interpretation by one of the highest state courts Involves Constitutional interpretation by one of the highest state courts 35 courts.state.ny.us

Most cases arrive through a writ of certiorari 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 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 Oral arguments are given by lawyers after briefs are submitted

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

Most cases are straightforward and don’t make policy Most cases are straightforward and don’t make policy Occasionally a decision does change policy Occasionally a decision does change policy Stare Decisis - Let the opinion stand. Decisions that set precedent should not easily be changed Stare Decisis - Let the opinion stand. Decisions that set precedent should not easily be changed

Political Questions The courts have tried generally to stay out of politics, but … Political Questions The courts have tried generally to stay out of politics, but … Remedies - a judicial order to correct a wrong Remedies - a judicial order to correct a wrong 39

Allow the decision to stand Allow the decision to stand Over turn the decision Over turn the decision Remand the case - sends back a case to the trial court or lower appellate court for action Remand the case - sends back a case to the trial court or lower appellate court for action 40

Courts should correct injustices when other branches or state governments refuse to do so 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 Courts are the last resort for those without the power or influence to gain new laws The first 2 paragraphs on p.459 provide an excellent explanation The first 2 paragraphs on p.459 provide an excellent explanation

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

Judges have no enforcement mechanisms Judges have no enforcement mechanisms Confirmation and impeachment proceedings Confirmation and impeachment proceedings Changing the number of judges Changing the number of judges Revising legislation Revising legislation

Amending the Constitution Amending the Constitution Altering jurisdiction Altering jurisdiction Restricting remedies Restricting remedies Public Opinion Public Opinion Precedent Precedent 44

Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion Opinion in realigning eras may energize court (Civil Rights) Opinion in realigning eras may energize court (Civil Rights) Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally