1. The Judiciary

2. Is the Judiciary a political branch of the government? Should it be? What are the dangers of an unelected, activist judiciary? What are the dangers of a literalist interpretation of the Constitution?

3. How does viewing the court as a political institution raise questions about its legitimacy?

4. The Supreme Court’s legitimacy problem Appointed, not elected Serve for life Can overrule acts of Congress and state legislatures Define rights Make policy Rely on elected branches for enforcement

5. Brown v. Board of Education (1954) **Remember that in 1954 “separate but equal” was legal precedent, and that many laws required and enforced segregation.

6. 14 th amendment All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

7. Brown v. Board of Education Decision: Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment -- even though the physical facilities and other "tangible" factors of white and Negro schools may be equal.

8. Brown v. Board of Education reasoning: (a) The history of the Fourteenth Amendment is inconclusive as to its intended effect on public education. (b) The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. (c) Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. (d) Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other "tangible" factors may be equal.

9. Brown II While giving weight to... public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner… To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.... [T]he cases are remanded to the District Courts to take such proceedings and … admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

10. The judiciary as a political institution Part of interest groups’ strategies Political nominations –Senatorial courtesy Political confirmations Judges’ own political beliefs Political internal decision-making Political effects from decisions

11. Justice Scalia vs. Justice Breyer

12. Arguments Scalia: Should interpret the Constitution true to its originally understood meaning. Breyer: Should consider the intent of the document as a whole, with consideration for how one clause relates to another. Should consider real-world consequences.

13. Arguments for Originalism FOR Does not give too much power to judges Guiding principle Relieves legitimacy problems Non-originalist interpretations have limited rights AGAINST No one way to read history, either Narrow interpretation of BoR never intended If too literal a reading, the court’s legitimacy can be threatened by political branches