1. The Judiciary Chapter 16 AP United States Government and Politics

2. Introduction Little public interest in judicial nominations but considerable congressional interest Little public interest in judicial nominations but considerable congressional interest Power of the federal courts has increased at the same time as the federal government Power of the federal courts has increased at the same time as the federal government Federal policy expansion has increased opportunities for judges to interpret policies Federal policy expansion has increased opportunities for judges to interpret policies U.S. judges play a large role in policy-making U.S. judges play a large role in policy-making Judicial review means little in other countries Judicial review means little in other countries In Great Britain, Parliament is supreme In Great Britain, Parliament is supreme Exceptions: Australia, Canada, West Germany, India Exceptions: Australia, Canada, West Germany, India

3. How Should the Constitution Be Interpreted? Strict constructionist (interpretivist or judicial restraint) approach: bound to wording of the Constitution Strict constructionist (interpretivist or judicial restraint) approach: bound to wording of the Constitution Activist (legislative) approach: look to underlying principles of the Constitution Activist (legislative) approach: look to underlying principles of the Constitution Not a matter of liberal versus conservative Not a matter of liberal versus conservative Judges can be both liberal and conservative Judges can be both liberal and conservative Activists tend to be liberal and constructionists tend to be conservative Activists tend to be liberal and constructionists tend to be conservative

4. Development of the Federal Courts Founders’ View Founders’ View Expected judicial review, but not such an extensive role Expected judicial review, but not such an extensive role Traditional view: judges find and apply existing law Traditional view: judges find and apply existing law Activists say that judges make the law Activists say that judges make the law Believed to be least dangerous branch Believed to be least dangerous branch Has evolved toward judicial activism Has evolved toward judicial activism

5. National Supremacy and Slavery: 1789-1861 McCulloch v. Maryland McCulloch v. Maryland Federal law declared supreme over state law Federal law declared supreme over state law Interstate commerce clause placed under federal law; any conflicting state laws void Interstate commerce clause placed under federal law; any conflicting state laws void Dred Scott v. Sandford African Americans could not become free citizens of the U.S. One of the causes of the Civil War

6. Government and the Economy: Civil War to 1936 Dominant issue: Should the economy be regulated by the state or the national government? Dominant issue: Should the economy be regulated by the state or the national government? Private property held to be protected by the 14 th Amendment Private property held to be protected by the 14 th Amendment Anti-monopoly laws upheld by judicial activism Anti-monopoly laws upheld by judicial activism Supreme Court determines what is “reasonable” regulation Supreme Court determines what is “reasonable” regulation Interprets the 14 th and 15 th Amendments narrowly as applied to African Americans Interprets the 14 th and 15 th Amendments narrowly as applied to African Americans

7. Government and Political Liberty: 1936-present Court established tradition of deferring to the legislature in economic cases Court shifts attention to personal liberties and becomes active in defining rights FDR and “Court-Packing”

8. Revival of State Sovereignty Since 1992, the Supreme Court rules that states have right to resist some forms of federal action (11 th Amendment) Since 1992, the Supreme Court rules that states have right to resist some forms of federal action (11 th Amendment) Hint at some limits to supremacy of federal government Hint at some limits to supremacy of federal government

9. Two Kinds of Federal Courts Constitutional Courts Constitutional Courts Created under Article III Created under Article III Judges serve during good behavior (can’t be fired) Judges serve during good behavior (can’t be fired) Salaries not reduced while in office Salaries not reduced while in office Ex.: District Courts (94), Courts of Appeals (12), and Supreme Court (1) Ex.: District Courts (94), Courts of Appeals (12), and Supreme Court (1) Legislative Courts Legislative Courts Created by Congress for specialized purposes Created by Congress for specialized purposes Fixed terms Fixed terms No salary protection No salary protection Ex.: Court of Military Appeals and the Territorial Courts Ex.: Court of Military Appeals and the Territorial Courts

10. Selecting Judges Party background makes a difference in judicial behavior Party background makes a difference in judicial behavior Senate hold hearings and then must confirm Senate hold hearings and then must confirm Senatorial courtesy: judges for U.S. district courts must be approved by that state’s senators Senatorial courtesy: judges for U.S. district courts must be approved by that state’s senators Litmus test Litmus test Presidential political ideology go hand-in-hand in selecting judges, especially in Supreme Court nominations Presidential political ideology go hand-in-hand in selecting judges, especially in Supreme Court nominations Concerned that this downplays professional qualifications Concerned that this downplays professional qualifications Increasing importance of ideology Increasing importance of ideology Sharp drop in confirmation rates of appeals nominees Sharp drop in confirmation rates of appeals nominees Even more important in respect to Supreme Court appointments Even more important in respect to Supreme Court appointments

11. Jurisdiction of the Federal Courts Dual court system Dual court system One state, one federal One state, one federal Federal cases listed in Article III and the 11 th Amendment Federal cases listed in Article III and the 11 th Amendment Federal question cases: involving U.S. matters Federal question cases: involving U.S. matters Diversity cases: involving citizens of different states Diversity cases: involving citizens of different states All others are left to state courts All others are left to state courts Some cases can be heard in either court Some cases can be heard in either court If both federal and state laws have been broken (dual sovereignty) If both federal and state laws have been broken (dual sovereignty) Justified: each government has right to enact laws, and neither can block prosecution out of sympathy for the accused Justified: each government has right to enact laws, and neither can block prosecution out of sympathy for the accused State cases can be appealed to SC State cases can be appealed to SC Excusive federal jurisdiction over federal criminal laws, appeals from federal regulatory agencies, bankruptcy, and controversies between 2 states Excusive federal jurisdiction over federal criminal laws, appeals from federal regulatory agencies, bankruptcy, and controversies between 2 states

12. Route to the Supreme Court Most cases begin in U.S. district courts, are straightforward, and do not lead to new public policy Most cases begin in U.S. district courts, are straightforward, and do not lead to new public policy The Supreme Court picks cases it wants to hear on appeal The Supreme Court picks cases it wants to hear on appeal Uses writ of certiorai (“cert”) Uses writ of certiorai (“cert”) Requires agreement of four justices to hear case Requires agreement of four justices to hear case Usually deals with significant federal of constitutional questions Usually deals with significant federal of constitutional questions Conflicting decisions by circuit courts Conflicting decisions by circuit courts State court decisions involving the Constitution State court decisions involving the Constitution Only 3-4% of appeals are granted certiorar i Only 3-4% of appeals are granted certiorar i Others are left to lowers courts; this results in a diversity of constitutional interpretation Others are left to lowers courts; this results in a diversity of constitutional interpretation

13. Getting to Court The Court rejects over 95% of the applications for certiorari The Court rejects over 95% of the applications for certiorari Costs can be very high Costs can be very high About ½ of the petitions before the SC are in forma pauperis About ½ of the petitions before the SC are in forma pauperis Interest groups may help with fees. Interest groups may help with fees. The ACLU (American Civil Liberties Union) represents people who believe that their constitutional rights have been violated. The ACLU (American Civil Liberties Union) represents people who believe that their constitutional rights have been violated. Center of Individual Rights represents those who feel they have been victimized by racial quotas. Center of Individual Rights represents those who feel they have been victimized by racial quotas. NAACP has brought many key civil rights cases to the Court. NAACP has brought many key civil rights cases to the Court.

14. Fee Shifting Each party pays own court costs Each party pays own court costs Fee Shifting: allows the plaintiff to collect its costs from the defendant if the defendant loses Fee Shifting: allows the plaintiff to collect its costs from the defendant if the defendant loses Section 1983 of Chapter 42 of the United States Code allows a citizen to sue a governmental official for a violation of rights and win money damages and court fees from the government Section 1983 of Chapter 42 of the United States Code allows a citizen to sue a governmental official for a violation of rights and win money damages and court fees from the government

15. Standing A person must have “standing” (entitlement to bring a case) in order to sue A person must have “standing” (entitlement to bring a case) in order to sue Must be an actual controversy between real adversaries Must be an actual controversy between real adversaries You must show that you have been harmed by the law or practice about which you are complaining You must show that you have been harmed by the law or practice about which you are complaining Being a taxpayer does not give you the right to challenge a federal governmental action Being a taxpayer does not give you the right to challenge a federal governmental action You may sue a governmental official individually for damages, but you may not sue the government itself without its consent (sovereign immunity) You may sue a governmental official individually for damages, but you may not sue the government itself without its consent (sovereign immunity) Many of these statutes have been liberalized by Congress, making it easier for citizens to sue Many of these statutes have been liberalized by Congress, making it easier for citizens to sue

16. Class-Action Suits A case brought into court by a person on behalf of not only himself/herself, but all other people in the same circumstances A case brought into court by a person on behalf of not only himself/herself, but all other people in the same circumstances People may benefit even if they have not been directly involved in the suit People may benefit even if they have not been directly involved in the suit Brown v. Board of Education Brown v. Board of Education The Court ruled that Linda Brown was denied her 14 th Amendment rights, but the NAACP lawyers had asked that the decision cover all “others similarly situated.” The Court ruled that Linda Brown was denied her 14 th Amendment rights, but the NAACP lawyers had asked that the decision cover all “others similarly situated.” Some cases may be monetarily advantageous for both the lawyers and plaintiffs Some cases may be monetarily advantageous for both the lawyers and plaintiffs

17. The Supreme Court in Action Sessions last from early October to the end of June Sessions last from early October to the end of June Read briefs in individual offices, hear oral arguments in the courtroom, and discuss decisions in the conference room Read briefs in individual offices, hear oral arguments in the courtroom, and discuss decisions in the conference room Most cases come to the SC on a writ of certiorari. Most cases come to the SC on a writ of certiorari. Lawyers must submit briefs. Lawyers must submit briefs. Lawyers them present oral arguments in open court. Lawyers them present oral arguments in open court. The U.S.’s top trial lawyer, the solicitor general, will appear in cases where the U.S. is a party. The U.S.’s top trial lawyer, the solicitor general, will appear in cases where the U.S. is a party. Written briefs and oral arguments may also be offered by Written briefs and oral arguments may also be offered by amicus curiae (interested party not directly involved in the suit).

18. The Supreme Court in Action Amicus curiae is really a type of polite lobbying by interest groups. Amicus curiae is really a type of polite lobbying by interest groups. On Fridays, the justices vote on the cases they have heard. On Fridays, the justices vote on the cases they have heard. About 2/5 of the decisions are unanimous About 2/5 of the decisions are unanimous Issues a written opinion Issues a written opinion Per curiam opinion (brief and unsigned) Per curiam opinion (brief and unsigned) Opinion of the Court (reflects the majority’s view) Opinion of the Court (reflects the majority’s view) Concurring opinion (opinion by one or more who agree with the decision, but for different reasons) Concurring opinion (opinion by one or more who agree with the decision, but for different reasons) Dissenting opinion (opinion of those on losing side) Dissenting opinion (opinion of those on losing side)

19. The Supreme Court in Action Conference procedures Conference procedures Role of Chief Justice: speaking first, voting last Role of Chief Justice: speaking first, voting last Selection of opinion writer(s) Selection of opinion writer(s) Strategic retirements from the U.S. Supreme Court Strategic retirements from the U.S. Supreme Court There has been a sharp increase in the rate of retirements There has been a sharp increase in the rate of retirements Early duties were physically taxing, adverse to one’s health Early duties were physically taxing, adverse to one’s health More recently, retirements occur when justices and presidents share same party More recently, retirements occur when justices and presidents share same party Types of cases Types of cases Great majority of cases have little to do with public policy Great majority of cases have little to do with public policy Most cases are people accused of bank robbery, disputes over contracts, personal-injury cases, and patent law Most cases are people accused of bank robbery, disputes over contracts, personal-injury cases, and patent law

20. The Power to Make Policy The power to make policy The power to make policy Reinterpret the law or the Constitution Reinterpret the law or the Constitution Extend the reach of laws Extend the reach of laws Design remedies for problems Design remedies for problems Measures of power Measures of power More than 160 federal laws have been declared unconstitutional. More than 160 federal laws have been declared unconstitutional. Number of prior cases overturned; NOT following stare decisis: “let the decision stand;” principle of precedent Number of prior cases overturned; NOT following stare decisis: “let the decision stand;” principle of precedent Deference to the legislative branch (political questions) Deference to the legislative branch (political questions) Kinds of remedies imposed; judges go beyond what justice requires Kinds of remedies imposed; judges go beyond what justice requires Basis for sweeping orders either from the Constitution or interpretation of federal laws Basis for sweeping orders either from the Constitution or interpretation of federal laws

21. Views of Judicial Activism Supporters Supporters Courts should correct injustices Courts should correct injustices Courts are last resort Courts are last resort Critics Critics Judges lack expertise Judges lack expertise Courts not accountable; judges not elected Courts not accountable; judges not elected Various reasons for activism Various reasons for activism Too many lawyers; but real cause adversary culture Too many lawyers; but real cause adversary culture Easier to get standing in courts Easier to get standing in courts

22. Legislation and Courts Laws and the Constitution are filled with vague language Laws and the Constitution are filled with vague language Ambiguity gives courts opportunities to design remedies Ambiguity gives courts opportunities to design remedies Courts can interpret language in different ways Courts can interpret language in different ways Federal government is increasingly on the defensive in court cases; laws induce litigation Federal government is increasingly on the defensive in court cases; laws induce litigation The attitudes of federal judges affect their decisions The attitudes of federal judges affect their decisions

23. Checks on Judicial Power Confirmation and impeachment proceedings alter the composition of the courts Confirmation and impeachment proceedings alter the composition of the courts Changing the number of judges Changing the number of judges Revising legislation declared unconstitutional Revising legislation declared unconstitutional Altering jurisdiction of the courts and restricting remedies Altering jurisdiction of the courts and restricting remedies Constitutional amendment Constitutional amendment Judges are not immune to politics or public opinion Judges are not immune to politics or public opinion Effects will vary from case to case Effects will vary from case to case Decisions can be ignored Decisions can be ignored Ex: school prayer, segregated schools Ex: school prayer, segregated schools Usually if register is not highly visible Usually if register is not highly visible

24. Checks on Judicial Power: Public Opinion and Activism Defying public opinion, especially elite opinion, frontally is dangerous Defying public opinion, especially elite opinion, frontally is dangerous Opinion in realigning eras may energize court Opinion in realigning eras may energize court Public confidence in court since 1966 has varied Public confidence in court since 1966 has varied Change caused by changes of personnel and what government is doing Change caused by changes of personnel and what government is doing Reasons for increased activism? Reasons for increased activism? Growth of government Growth of government Activist ethos of judges Activist ethos of judges