1. 1) Unlike the president, it would not command the sword
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

2. Congress used the “necessary and proper” clause to expand their powers
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?

3. Congress used the “necessary and proper” clause to expand their powers
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. 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

5. Copyright © 2011 Cengage

6. 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).
Copyright © 2011 Cengage

7. 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

8. 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

9. 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
Copyright © 2011 Cengage

10. 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

11. 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

12. 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)

13. 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

14. Karen Bleier/AFP/Getty Images
Sonia Sotomayor became the third female and first Hispanic justice on the Supreme Court. p. 440
Copyright © 2011 Cengage

15. Federal Cases
Federal question cases: involving the U.S. Constitution, federal law, or treaties
Diversity cases: involving different states, or citizens of different states
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

16. Figure 16.3 The Jurisdiction of the Federal Courts
Replace with jpeg, p. 441
Copyright © 2011 Cengage
p. 441

17. 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
Copyright © 2011 Cengage

18. 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

19. 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

20. 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

21. 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
Copyright © 2011 Cengage

22. Figure 16.4 Public Confidence in the Court, 1974 - 2006
Replace with jpeg, p. 453
Source: The Gallup Poll.
Copyright © 2011 Cengage

23. 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

24. 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
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

25. 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

26. 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

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

28. 2010 Supreme Court Official Photo
Goes
Here

30. Plaintiff—the party bringing the charge
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.

32. (Old Court Line-up)

34. Back

37. CONFIRMATION IS A POLITICAL PROCESS

39. Back