1. Chapter 14 The Judiciary Joel Pazol AP Government Class 2

2. The Court’s Power Only in the United States do judges play such a large role in influencing public policy. The main aspect of this is judicial review - the federal courts have the right to declare laws of Congress and acts of the executive branch unconstitutional.

3. Judicial Review There are two competing views on how the judges deem something unconstitutional. - Strict-Constructionist Approach: apply only rules stated or clearly implied in the language of the Constitution. - Activist Approach: as a group, discover the principles in the Constitution’s often vague language, and apply them to cases.

4. Development of the Federal Courts The Founders designed the judicial to interpret the law and not to make policy. This has changed since the Founder’s time, especially in the Supreme Court. Three major time periods covered the growth of the judicial branch from a traditional strict- constructionist approach, to a far more activist approach.

5. National Supremacy and Slavery (1787-1865) From 1789 until the Civil War, the Supreme Court mainly dealt with the relationship between federal government and states. Two important cases, Marbury v. Madison and McCulloch v. Maryland, decided the Supreme Court could declare an act of Congress unconstitutional. It was also decided that federal law was supreme over state’s laws.

6. The Dred Scott Case The most disastrous judicial mistake with this power was in the Dred Scott case. A slave, Dred Scott was taken by his slave- owner to a territory where slavery was illegal under Federal law. Chief Justice Roger B. Taney reasoned that Scott was not a citizen and the law prohibiting slavery in northern territories – the Missouri Compromise - was unconstitutional. The public in the North discredited this decision and this was a factor in leading up to the civil war.

7. Government and the Economy (1865- 1937) The federal Government now has power over the state Governments but to what extent had not been decided yet. Using power from the 14 th amendment, the supreme court took control over interstate commerce. During that decade, 1200 state laws were overturned and 48 declared unconstitutional.

8. Government and Political Liberty (1938-present) From the New Deal onwards, the main focus of the Supreme Court was protecting personal liberties. As the composition of the court changes, so do the average views on the topics. This time period was marked by a shaky relationship between the government and the rights of the people (ex. McCarthyism), therefore the courts had to take a more activist approach to protect people’s rights.

9. The Revival of State Soverignty Since the civil war, the Supreme Court had allowed Congress to pass almost any and all laws relating to states’ rights. It justified this by claiming that those laws affected interstate commerce in some way (which the Constitution puts in the Federal Government’s domain). However, after 1992, the court has backed away from this view and given the states room to resist.

10. The Structure of the Federal Courts The only federal court required by the Constitution is the Supreme Court. Two lower federal courts were created by Congress to handle cases that need not be decided by the Supreme Court: constitutional courts and legislative courts. The constitutional courts are divided into 94 district courts and the Court of Appeals. The legislative courts include the Court of Military Appeals and territorial courts.

11. Selecting Judges Judges on the constitutional courts are appointed for life and all have the power of judicial review. All are nominated by the president and confirmed by the Senate. Almost always the president nominates from his own political party, but the judges can and often will differ from the president on certain topics.

12. Senatorial Courtesy A key way for presidents to get their nominees confirmed is through Senatorial courtesy. If a key senator has a negative opinion of a nominee they will not be confirmed. Usually the president will try to be courteous to those key senators to get their nominee confirmed.

13. The Litmus Test To select nominees that have the same views as the president and key senators, the president will often conduct a “Litmus Test.” This Litmus test is a test of ideological similarity, and is used often. It is simply an interview of the potential nominee and their political views.

14. The Jurisdiction of the Federal Courts In Article III and the 11 th amendment, the Constitution lists the cases over which the Federal courts preside; the other cases are left to the state courts by implication. The Federal Courts can hear all cases involving the Constitution and the laws of the United States’ and its treaties – federal-question cases. It can also hear those involving citizens of different states – diversity cases.

15. Jurisdiction cont’ Some cases can be heard in both courts if they involve state and federal laws. Therefore, federal and state courts can both prosecute a person for a single infraction. This is the principle of Dual Soverignity: Each level of government has the right to enact laws serving its own purposes. Some are clearly under the federal courts – when a federal law is broken. A purely state case can be appealed to the Supreme Court.

16. Writ of Certiorari The volume of appeals the district courts send to the Supreme Court is massive, and the Supreme does not have to hear any it does not want to. It picks the ones it wants to hear by issuing a writ of Certiorari, (abbreviated cert.) If four justices agree to hear a case, cert. is issued. The court will grant cert. if: 1). Two or more federal courts have decided on the same issue in different ways, or 2). A state case brings up large questions regarding if something is constitutional or not.