1. the Judiciary

2. Judicial Review Need independent judges Hamilton – Federalist 78
Right to rule a law or action unconstitutional
Need independent judges
Hamilton – Federalist 78
None in Great Britain
Appointment and tenure
Jurisprudence
Traditional
Originalist
Activist
Strict-constructionalist
Krytocracy – rule by judges

3. Evolution of the courts
National supremacy and slavery
Marbury v. Madison
McCulloch v. Maryland
Dred Scott v. Sanford
Government and the economy
Plessy v. Ferguson
Schenck v. US
Political liberty – Brown v. BEO-Topeka
State sovereignty – Roe v. Wade
Terror and Privacy = 9/11/2001

4. Structure Supreme Court Required by Article III Lower Federal Courts
Created by Congress
Constitutional
94 districts - original
12 circuits - appellate
Legislative - specialized
Much increased in number

5. Selecting Judges Party effect Ideology Facts of the case Prior rulings
Lawyers’ arguments
Senatorial courtesy
“Blue slip”
Not for Supreme Court
“Litmus Test”

6. Jurisdiction Dual court system Federal – from Constitution
Federal-question cases
Diversity cases
State – all else
Dual sovereignty doctrine
Each level has the right to enact laws serving its own purpose
Neither level wants the other to block prosecution

7. Getting to the Supreme Court
Most start in federal districts
Petition for appeal
Writ of certiorari
Lawyers submit briefs
Oral arguments
Amicus curiae
Conference
Closed debate
Vote and opinion

8. Access to the Supreme Court
Filing is easy and cheap
Standing – one is entitled to bring a case
Sovereign immunity – cannot sue government without consent
Process is long and expensive
In forma pauperis
Fee shifting
Class action suits

9. Making Decisions Per Curium Opinions Majority Opinion
Dissenting Opinion
Concurring Opinion
Unanimous Opinion

10. Making Policy Apply settled law Remedies Administratively
Legislatively
Stare decisis
Equal justice

11. Judicial Activism Why has it increased over time? Unelected judges
Too many lawyers
Easier to get standing
Cost of litigation, class-action suits
Vague language in legislation
Bureaucratic decisions
Attitudes of judges
Size, scope of whole government

12. Constraints No enforcement Congressional checks Confirmation
Impeachment
Number of judges
Amendment
Re-pass legislation
Change jurisdiction
Public opinion