1. Chapter 16 The Judiciary

2. Copyright © 2011 Cengage WHO GOVERNS? WHO GOVERNS? 1.Why should federal judges serve for life? TO WHAT ENDS? TO WHAT ENDS? 1.Why should federal courts be able to declare laws unconstitutional? 2.Should federal judges only interpret existing laws or should they be able to create new laws?

3. http://www.youtube.com/watch?v=s D5PIeGt8is http://www.youtube.com/watch?v=s D5PIeGt8is Warm-up President Obama ponders choice for US Supreme Court http://www.youtube.com/watch?v=s D5PIeGt8is http://www.youtube.com/watch?v=s D5PIeGt8is

4. Overview Judicial Review – the power of courts to declare laws unconstitutional Judicial Review – the power of courts to declare laws unconstitutional Judicial Restraint Approach – judges should decide cases strictly on the basis of the language of the Constitution Judicial Restraint Approach – judges should decide cases strictly on the basis of the language of the Constitution Activist Approach – judges should discern the general principles underlying the Constitution and apply them to modern circumstances Activist Approach – judges should discern the general principles underlying the Constitution and apply them to modern circumstances Copyright © 2011 Cengage

6. The Development of the Federal Courts National Supremacy and Slavery National Supremacy and Slavery Marbury v Madison (1803)  upheld judicial review of congressional actsMarbury v Madison (1803)  upheld judicial review of congressional acts McCulloch v Maryland (1819)  federal bank “necessary and proper” even though not mentioned in ConstitutionMcCulloch v Maryland (1819)  federal bank “necessary and proper” even though not mentioned in Constitution Dred Scot decision (1857)  blacks not US citizensDred Scot decision (1857)  blacks not US citizens Copyright © 2011 Cengage

7. Government and Economy John Marshal  est. supremacy of federal government 1880s mainly used to protect private property

8. Government and political liberty 1937-1974 did not overturn a single federal law designed to regulate business but did not overturn any laws that violated personal political liberties

9. Revival of state sovereignty 1992 to present States have right to resist some forms of federal action/limits federal supremacy

10. Copyright © 2011 Cengage 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 Library of Congress/LC-USZ62-44166

11. Copyright © 2011 Cengage

12. 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 Bettmann/Corbis

13. Map 16.1 U.S. District and Appellate Courts Copyright © 2011 Cengage 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).

14. Selecting Judges Selecting Judges/Pres. Nominates/Senates approves Selecting Judges/Pres. Nominates/Senates approves Senatorial Courtesy—gives preference to senator of that state to pick judgeSenatorial Courtesy—gives preference to senator of that state to pick judge The “Litmus Test” test of political ideology to select a judge/president uses thisThe “Litmus Test” test of political ideology to select a judge/president uses this

15. The Structure of the Federal Courts Lower Federal Courts Lower Federal Courts Constitutional Court (Constitutional protection)Constitutional Court (Constitutional protection) District courts—most important, 94/federal trials held here District courts—most important, 94/federal trials held here Courts of appeal—hear appeals from district courts/no trials Courts of appeal—hear appeals from district courts/no trials Legislative Court (created by congress)Legislative Court (created by congress) Court of Military Appeals/judges can be fired Court of Military Appeals/judges can be fired Copyright © 2011 Cengage

16. Selecting Judges/Court system Dual court system State and federal Federal-Question cases  cases concerning the Constitution, federal laws, or treaties (Rob federal bank) Diversity cases  involving citizens of different states who can bring suit in federal courts if it is over$75,000

17. Figure 16.1 Female and Minority Judicial Appointments, 1963–2004 Copyright © 2011 Cengage 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.

18. Figure 16.1 Female and Minority Judicial Appointments, 1963–2004 Copyright © 2011 Cengage 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 16.2 Confirmation Rates for Nominees to the U.S. Court of Appeals (1947–2005) Copyright © 2011 Cengage 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.

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

21. The Jurisdiction of the Federal Courts Writ of certiorari – An order by a higher court directing a lower court to send up a case for review. Writ of certiorari – An order by a higher court directing a lower court to send up a case for review. Supreme Court picks the cases it would like to review Supreme Court picks the cases it would like to review 4 Justices need to agree to hear the case 4 Justices need to agree to hear the case Grant it if 2 court of appeals courts decided it different/violation of Constitution Grant it if 2 court of appeals courts decided it different/violation of Constitution Copyright © 2011 Cengage

22. Figure 16.3 The Jurisdiction of the Federal Courts Copyright © 2011 Cengage p. 441

23. Getting to Court In forma pauperis  poor person can have his/her case heard in federal court without cost In forma pauperis  poor person can have his/her case heard in federal court without cost Fee Shifting  plaintiff recovers costs from the defendant if plaintiff wins Fee Shifting  plaintiff recovers costs from the defendant if plaintiff wins Standing  if you sue, you must be entitled to bring a suit Standing  if you sue, you must be entitled to bring a suit Class Action Suits  help him/her and all others who are in similar situation Class Action Suits  help him/her and all others who are in similar situation Copyright © 2011 Cengage 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 Carl Iwasaki/Time Life Pictures/Getty Images

24. Copyright © 2011 Cengage

25. Warmup http://www.youtube.com/watch?v= WsIZM6bzoEM&feature=related http://www.youtube.com/watch?v= WsIZM6bzoEM&feature=related Warm-up Constitution review

26. The Supreme Court in Action Brief  document, sets forth facts of case/laws supporting it written by an attorney Brief  document, sets forth facts of case/laws supporting it written by an attorney Amicus curiae  Brief submitted by “friend of court” interested group Amicus curiae  Brief submitted by “friend of court” interested group Per curiam opinion—brief unsigned opinion of court Per curiam opinion—brief unsigned opinion of court Opinion of the court—majority of the court write it/sign it Opinion of the court—majority of the court write it/sign it Concurring opinion—written when majority has agreed but for different reasons Concurring opinion—written when majority has agreed but for different reasons Dissenting opinion—signed opinion in which one or more justice disagree with the majority view Dissenting opinion—signed opinion in which one or more justice disagree with the majority view Copyright © 2011 Cengage

27. 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 Charles Dharapak/AP Photo

28. The Power of the Federal Courts The Power to Make Policy The Power to Make Policy Stare decisis “allowing prior rulings to control current case”Stare decisis “allowing prior rulings to control current case” Political question “lets congress/President decide” district boundariesPolitical question “lets congress/President decide” district boundaries Remedy—correct situation judge believes wrongRemedy—correct situation judge believes wrong Copyright © 2011 Cengage The activism of federal courts is exemplified by the sweeping orders they have issued to correct such problems as overcrowded prisons. p. 448 Alex Webb/Magnum Photos

29. Checks on Judicial Power Congress and the Courts Congress and the Courts Confirmations Impeachment (15) 4 convicted Number of judges alter the number/create to their liking Jurisdiction—prevent matters it did not want federal courts to act on to ever make it to court Copyright © 2011 Cengage 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 1991. p. 452 Bettmann/Corbis

30. Figure 16.4 Public Confidence in the Court, 1974 - 2006 Copyright © 2011 Cengage Source: The Gallup Poll.

31. 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. Copyright © 2011 Cengage WHAT WOULD YOU DO?

32. 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. Copyright © 2011 Cengage WHAT WOULD YOU DO?

33. 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. Copyright © 2011 Cengage WHAT WOULD YOU DO?

34. Your decision: Support the law? Oppose the law? Copyright © 2011 Cengage WHAT WOULD YOU DO?