1. The Judiciary Branch
Only in the US do judges play such a large role in policy-making. This
activism started with the creation of judicial review (Marbury v.
Madison, 1803).
* much debate over interpretation of Constitution (strict v. loose)
* activism does not correlate to liberal v. conservative
Federal Courts
- Founders didn’t expect judiciary to play such an active role
(Hamilton said the courts were the least dangerous branch and that
their authority only limits law, not create it)
- federal judiciary evolved toward judicial activism throughout 3
different historical eras (see “Historical Eras of Judiciary” handout)

2. Structure of the Courts
- 2 kinds of federal courts were created by Congress to handle
cases that don’t go to the Supreme Court
1. Constitutional Courts
- exercise broad judicial powers
- judges serve for life
- salaries can’t be reduced while in office
- ie: District courts (94), Courts of Appeals (12)
2. Legislative Courts
- created by Congress for specialized purposes
- judges have fixed terms, can be removed
- no salary protection
- ie: Court of Military Appeals

3. - all constitutional court judges are nominated by president and
confirmed by the Senate
* appointees must pass the “litmus test”
* a president seeks judicial appointees who share their political
ideologies, but there are concerns that this causes too many
delays in the Senate’s confirmation of judges
- constitutional rulings are based on factors other than just the facts
of the case…
* judicial behavior (activism, strict v. loose interpretation)
* precedent
* lawyers’ arguments
Checks on Judicial Power
- courts rely on others to implement their decisions- if the decision is
not highly visible (public) then those affected sometimes choose to
ignore the ruling

4. Congress
- have power of confirmation, impeachment, to change the number
of judges and giving the president more/less appointment
opportunities
- Supreme Court decisions can be undone by…
* revising legislation
* amending the Constitution
* altering the jurisdiction of the courts
* restricting court jurisdiction
- judicial activism has increased in the Supreme Court because
* the government has continued to increase in size/scope
* idea of judicial activism has become more publicly accepted