1. Chapter 16
The Judiciary

2. The Judiciary: THEN
Alexander Hamilton wrote in Federalist Paper No. 78 that the new system of federal courts would be “the least dangerous” branch of government
Least dangerous because:
1) Unlike the president, it would not command the sword
Execute the laws; punish lawbreakers
2) Unlike Congress, it would not control the purse strings
Nowhere in the Constitution was the Supreme Court given the right to declare laws of Congress or decisions of the president to be unconstitutional, though Hamilton argued that such as power was necessary

3. The Judiciary: NOW
Congress used the “necessary and proper” clause to expand their powers
The Supreme Court then began to declare many federal and several state laws to be unconstitutional (judicial review)
This new found power resulted in many Supreme Court justices
Until recently, most justices were confirmed by the Senate
Recently, nominations have not received the universal confirmation – The Senate has rejected many nominations today – WHY?

4. The Judiciary: NOW
Congress used the “necessary and proper” clause to expand their powers
The Supreme Court then began to declare many federal and several state laws to be unconstitutional (judicial review)
This new found power resulted in many Supreme Court justices
Until recently, most justices were confirmed by the Senate
Recently, nominations have not received the universal confirmation – The Senate has rejected many nominations today – WHY?

5. 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

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7. Map 16.1 U.S. District and Appellate Courts
Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth.
Source: Administrative Office of the United States Courts (January 1983).
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8. 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

9. 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

10. Library of Congress/LC-USZ62-44166
Roger B. Taney, chief justice from 1836 to 1864, wrote the Dred Scott decision, which asserted that blacks were not citizens of the United States. Dred Scott claimed that when his master brought him north to a free state, he ceased to be a slave. The public outcry against the decision was intense, at least in the North, as is evident from this poster announcing a mass meeting “to consider the atrocious
decision.” p. 434
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11. National Supremacy
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, and federal law is supreme over state law

12. 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

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14. 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

15. Bettmann/Corbis
The “nine old men”—The Supreme Court in 1937, not long after President Franklin D. Roosevelt tried, unsuccessfully, to “pack” it by appointing six additional justices who would have supported his New Deal legislation. Justice Owen J. Roberts (standing, second from the left) changed his vote on these matters, and the Court ceased to be a barrier to the delegation of power to the bureaucracy. P. 435
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16. 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)

17. 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

18. Figure 16.1: Female and Minority Judicial Appointments, 1963-2003
Break into three slides, if necessary.
Source: Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2005–2006 (Washington, D.C.: Congressional Quarterly, 2006), table 7.5.

19. Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 (cont.)
Break into three slides, if necessary.
Source: Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2005–2006 (Washington, D.C.: Congressional Quarterly, 2006), table 7.5.

20. Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 (cont.)
Break into three slides, if necessary.
Source: Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2005–2006 (Washington, D.C.: Congressional Quarterly, 2006), table 7.5.

21. Figure 16. 2 Confirmation Rates for Nominees to the U. S
Figure 16.2 Confirmation Rates for Nominees to the U.S. Court of Appeals (1947–2005)
Source: “The Consequences of Polarization: Congress and the Courts” by Sarah A. Binder, in David Brady and Pietro Nivola, Eds., Red and Blue Nation? (Vol. 2) Consequences and Correction of America’s Polarized Politics. Brookings Institutions and Hoover Institution Presses. Reprinted with permission of the author.
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22. Karen Bleier/AFP/Getty Images
Sonia Sotomayor became the third female and first Hispanic justice on the Supreme Court. p. 440
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23. Federal Cases
Federal question cases: involving the U.S. Constitution, federal law, or treaties
Diversity cases: involving different states, or citizens of different states

24. 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

25. Figure 16.3 The Jurisdiction of the Federal Courts
Replace with jpeg, p. 441
p. 441
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26. Getting to Court In forma pauperis Fee Shifting Standing
Class Action Suits
Carl Iwasaki/Time Life Pictures/Getty Images
Linda Brown was refused admission to a white elementary school in Topeka, Kansas. On her behalf, the NAACP brought a class-action suit that resulted in the 1954
landmark Supreme Court decision Brown v. Board of Education. p. 445
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28. 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

29. 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

30. 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

31. Charles Dharapak/AP Photo
The members of the Supreme Court, front row, from left are: Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia, and Clarence Thomas. Back row, from left are: Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447
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32. The Power of the Federal Courts
The Power to Make Policy
Stare decisis
Political question
Remedy
Views of Judicial Activism
Legislation and the Courts
Alex Webb/Magnum Photos
The activism of federal courts is exemplified by the sweeping orders they have issued to correct such problems as overcrowded prisons. p. 448
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33. Checks on Judicial Power
Congress and the Courts
Confirmations
Impeachment
Number of judges
Jurisdiction
Public Opinion and the Courts
Bettmann/Corbis
Thurgood Marshall became the first black Supreme Court justice. As chief counsel for the NAACP, Marshall argued the 1954 Brown v Board of Education case in front of the Supreme Court. He was appointed to the Court in 1967 and served until p. 452
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34. Figure 16.4 Public Confidence in the Court, 1974 - 2006
Replace with jpeg, p. 453
Source: The Gallup Poll.
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35. 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

36. 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

37. 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

38. Checks on Judicial Power
Judges have no enforcement mechanisms
Confirmation and impeachment proceedings
Changing the number of judges
Revising legislation
Amending the Constitution
Altering jurisdiction
Restricting remedies

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

40. THEMIS
BLIND JUSTICE
SCALES
&
SWORD

41. THE U.S. SUPREME COURT BUILDING

42. LOCATION OF THE U.S. SUPREME COURT BUILDING

43. Chief Justice Associate Justices John Roberts Samuel Alito
Stephen Breyer
Ruth Bader Ginsberg
Elena Kagan
Anthony Scalia
Sonia Sotomayor
Clarence Thomas

44. 2010 Supreme Court Official Photo
Goes
Here

46. Participants in the Judicial System
Litigants
Plaintiff—the party bringing the charge
Defendant—the party being charged
Jury—the people (normally 12) who often decide the outcome of a case
Legal Standing have sustained or likely to sustain a direct injury
Justiciable disputes - a case must be capable of being settled as a matter of law.

48. (Old Court Line-up)

50. Back

53. CONFIRMATION IS A POLITICAL PROCESS

55. Back

60. JOHN MARSHALL 4TH CHIEF JUSTICE OF THE U.S. SUPREME COURT (1801-1835)

62. EARL WARREN CHIEF JUSTICE 1953-1969 (LIBERAL) (NIXON)

63. WILLIAM REHNQUIST CHIEF JUSTICE 1986-2005 (CONSERVATIVE) (REAGAN)

64. JOHN ROBERTS CHIEF JUSTICE 2005 - ????
(CONSERVATIVE)
(GEORGE W BUSH)

65. WHAT WOULD YOU DO?
M E M O R A N D U M To: Senator Ann Gilbert From: Amy Wilson, legislative assistant The Supreme Court has held that the attorney general cannot use his authority over federally controlled drugs to block the implementation of the Oregon “Death With Dignity” law. Now some of your colleagues want to enact a federal equivalent of that law that would allow physicians to prescribe deadly drugs to patients who request them.

66. WHAT WOULD YOU DO?
Arguments for: 1. The law respects the people’s rights to choose the time and place of their own death. 2. It is already permissible to post “Do Not Resuscitate” orders on the charts of terminally ill patients. 3. Physicians can be held to high standards in implementing the law.
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67. WHAT WOULD YOU DO?
Arguments against: 1. The law will corrupt the role of doctors as many think has happened in Holland, where a similar law has led some physicians to kill patients prematurely or without justification. 2. Such a law will lead some physicians to neglect or ignore the desires of the patient. 3. This law will undermine the more important goal of helping patients overcome pain and depression.
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68. WHAT WOULD YOU DO? Your decision: Support the law? Oppose the law?
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