1. The Judicial Branch
Chapter 16

2. Constitutional Underpinnings and Early Legislation
Constitution gives very little power to the Judicial Branch in the Constitution
They are not allowed to declare anything unconstitutional under Article 3 in the Constitution
Federalist 78 and Anti-federalist discuss the fact that the judicial branch will be the most important and the least dangerous, but also the least powerful
Marbury v. Madison – established judicial review
The power of the courts to declare laws unconstitutional
Judicial review is the most important check that the judicial branch has on the other 2 branches
Interpretation of the Constitution
Judicial restraint – the view that judges should decide cases with a strict and literal interpretation of the language and laws written into the constitution.
Judicial activism – the view that judges should interpret the constitution in a way that is relevant to modern circumstances.
Which approach do you agree with more and why?

3. Federalism and SCOTUS Relevant cases:
From 1789-Civil War Era – the courts generally gave federal law supremacy
McCulloch v. Maryland – national bank – federal law is supreme
Eventually the Supreme Court will give more power back to the states
Relevant cases:
Gibbons v. Ogden – gives feds power to regulate commerce
US v. Lopex – Banning firearms not covered by commerce clause – limits fed power
US v. Morrison – attacks against women are not interstate commerce – limits fed power
Alden v. Maine – upholds 11th amendment – protects states from lawsuits from citizens in other states

4. SCOTUS, the Economy, and Civil Liberties
After 1936, SCOTUS stopped imposing any restrictions on state or federal power to regulate the economy
From – SCOTUS did not overturn any federal law designed to regulate business
However, it did overturn more than 36 laws that violated personal political liberties
Restriction of freedom of speech, denying passports to communists, revoking of citizenship, withholding mail, restricting benefits, etc.

5. Structure of the Courts
The Supreme Court is the only federal court required by the Constitution
Congress has created 2 kinds of lower federal courts
Constitutional Courts – Judges protected by Constitution
District Courts
Courts of Appeals
Legislative Courts
Set up by Congress for a special purpose
Court of Military Appeals and territorial courts

6. Jurisdiction of the Federal Courts
Dual court system – state and federal
Some cases can be heard in either state or federal courts
Citizens of different states want to sue each other
Breaking both federal and state law
Federal hears all cases under the Constitution, laws, and treaties of the US, as well as cases involving citizens of different states – the rest is left to the states
SCOTUS does not have to hear any appeal it doesn’t want to hear
Can call cases up they want to hear with a writ of certiorari
Usually used if 2 or more federal courts have decided the same issues in different ways
The highest court has held a federal or state law in violation of the constitution
SCOTUS rejects 96% applications for certiorari it receives

7. Getting to Court
Each party in a suit must pay their own way, which can get expensive
Fee shifting – allows the plaintiff – the person who starts the suit to collect fees from the defendant if the defendant loses
Cannot sue whenever you want, there has to be standing
Standing = who is authorized to start a lawsuit
Actual controversy among adversaries
Show that you have been harmed by the law or practice
Being a taxpayer does not entitle you to challenge constitutionality
Cannot sue the government without its consent – sovereign immunity
Can sue government officials
Class-action suits
Case brought into court that applies to all other persons in similar circumstances
Brown v. Board of Education was a class action suit
Class action suits happen against corporations all the time.

8. Selecting Judges Party background influences how judges rule
Decisions are also shaped by the facts of the case, prior rulings, arguments presented
Presidents sometimes make the mistake of trying to predict how their nominees will rule
In theory, a President nominates a qualified person to be a judge and senate approves or denies based on the qualifications
However, if the Senator of a state does not like a district court judge, they will not be nominated, so the President typically chooses nominees that the top Senators like
Litmus Test
A test of ideological purity in selecting judges
Views on abortion, gay marriage, etc.

9. SCOTUS in Action
In session 36 weeks out of the year – early October to end of June
Each justice reads the briefs in their individual offices
Brief = document that sets forth the facts of the case, summarize lower-court decision, arguments for each side, and other relevant case law
They then hear oral arguments in the courtroom
Each attorney has no more than 30 minutes
The attorney for the federal government (if the case say US v. …) is the solicitor general of the US – after attorney general and deputy attorney general
Usually allowed so the justices can question each side
There may be written briefs and oral arguments given by “friends of the court” – amicus curiae – an interested party not directly involved in the suit
Don’t usually sway the court – it is a lobbying tactic for interest groups to take a side on an issue
Then discuss their decisions with one another in a conference room where no outsider is allowed – every Friday they meet to discuss cases heard that week
Chief Justice speaks first, then the others in order of seniority
They then vote – a tie means the lower court opinion stands
Concurring opinion – opinion by one or more justices who agree with the majority’s conclusion
Dissenting opinion – opinion of the justices on the losing side
Blocs:
Conservative = Alito, Roberts, Thomas
Liberal = Sotomayor, Breyer, Ginsburg, Kagan
Swing = Kennedy

10. Current Justices

11. Powers of the Court Power to make policy
Precedents or stare decisis – “let the decision stand”
This means that the meaning of the law can be constantly changing
Declaring laws unconstitutional
More than 160 laws have been declared unconstitutional
Political questions
Issues that SCOTUS will leave to the branch of government it is assigned to in the constitution – like congressional districts
Remedies
A judicial order enforcing a right of redressing a wrong
EX: if a prisoner is wrongfully treated in CA, the court can choose to revamp the entire prison system in the state

12. Checks on Judicial Power
Judge has no police force or army
Congress
Chooses to approve or deny appointments
Can impeach judges
Can alter number – add as many as it wants
Can undo a court decision by altering the unconstitutional law
Can alter jurisdiction of the lower courts – narrowing it or withdrawing jurisdiction
Executive – appoints justices
Public Opinion’s influence
The courts are often subject o public opinion
During times that the country is more activist, the court has become more activist
Courts are subject to interest group influence as well – amicus curiae briefs
Courts have widened their decisions to include the whole population or whole groups of people