Review

1. Review • How did federalism both cause and prevent the Civil War. •  Missouri compromise of 1820 balance of slave and free states – • Why? Maintained slavery and for the time, prevented the war. Out of balance by admitting California but the fugitive slave act. Who won in that balance? •  Problem with western expansion of slavery – too expensive. • Too many immigrants…

2. Review • Is the constitution self enforcing? • What is the credible commitment? • What controls the monster? (monster = states, federal government, senators, members of Congress, Supreme Court = all of them) • What is the evidence?

3. Review • What causes the rule of law to be self enforcing? • Weingast • History • Short term versus long term

4. Review • What causes democracies to be stable? • Constitutions? • Separation of powers? • Checks and balances (veto players)

5. Review • FDR fireside chat • Public opinion • Congress • Court • Who won? • Evidence for Weingast?

6. The Court System Lecture Goals • Federalism in the courts (relationship between the federal and state courts) • Basic operation of the federal courts • In the federal system, the courts’ role in checks and balances

7. Are Judges like referees? =

8. Or like other politicians? =

9. 2 Separate (but Connected) Court Systems Appeal possible if there is a federal question-- criminal or civil US Supreme Court (last word on federal law) State Supreme Court (last word on state law unless conflict with federal law) State prisoner complains of unconstitutional procedures during trial Federal Appeals Courts State Appellate Courts Federal District Courts (trial courts) State Trial Courts Civil Defendant can move the case if there is federal jurisdiction Plaintiffs bring lawsuit Plaintiffs bring lawsuit in a case that triggers federal jurisdiction Criminals Arrested by Federal Law Enforcement, prosecuted by US attorneys Criminals Arrested by State Police, prosecuted by state’s district attorneys

10. The Federal Courts are Courts of Limited Jurisdiction Article III of the Constitution Says: “The judicial power shall extend to all Cases ... arising under this Constitution, the Laws of the United States, and Treaties made...” (Cases Involving Some Type of Federal Law) “... to Controversies to which the United States shall be a party...” “... to Controversies between two or more States...” “... between Citizens of different States...” (and a few other types of cases involving States or Foreign Nations)

11. “Controversies” Standing

12. Why were the federal courts limited? • People were afraid of the power of the federal government. • They limited the federal courts just like they limited the rest of the new government. • Note: State courts are NOT limited in this way--you can generally bring a federal claim in state court (with a few exceptions). (also no controversy)

13. Supreme Court • The Supreme Court gets to choose its cases • It only hears about 70-80 cases per year--out of thousands of requests • These cases come mostly from the federal appeals courts or from the state supreme courts (the Supreme Court’s “original jurisdiction” is not used much) • Chief Justice (Roberts) is the tie-breaker. (or Kennedy) • In the Dred Scott case, each justice wrote separately (9 opinions!) so the Chief Justice’s opinion became the law in that case!

14. Marbury v Madison • Adams is no longer president. Midnight appointments before Jefferson takes over. Jefferson ordered Madison not to give Marbury his commission. Marbury sued Madison asking the Supreme Court for a Writ of Mandamus (a power given to the Supreme Court by Congress). • Options – order and then Madison could refuse. • Not order and then no one has to follow the law. • The power of the Writ of Mandamus was unconstitutional because it expanded the court’s power of original jurisdiction • Comparative examples

15. Federal Selection Process • The selection of judges is a political process. • Federal judges are nominated by the President and confirmed by the Senate. • Why the Senate and not the House? • For LIFE!!!!? Yes. • Provides the President the opportunity to put their philosophical stamp on federal courts

16. Appointment • President • Senatorial courtesy • Political implications • Obama’s recent move to appoint judges

19. Stare Decisis • “let the decision stand” • The Supreme Court prefers to, but doesn’t have to, follow its own prior decisions (“precedents”) • Note: the lower courts MUST follow the decisions of courts above them in the hierarchy

20. Civil, criminal • Civil – contracts, business, torts, divorce • Criminal – anything against the law • Note: some cases can be both (O.J.)

21. Miranda v. Arizona (1966) • This is the case that brought you “you have the right to remain silent” • Ernesto Miranda was arrested in Phoenix, Arizona by the state police • While in police custody, the police got a signed confession but they didn’t tell him his rights first • Miranda was convicted of kidnapping and rape, and he appealed his conviction through the state system arguing his rights were violated • The Arizona Supreme Court affirmed his conviction--said his Constitutional rights weren’t violated by what the police did • The Supreme Court took the case and REVERSED the Arizona Supreme Court

22. Miranda v Arizona US Supreme Court held that his rights were violated--told Arizona they had to re-try him to keep him in prison Miranda Appealed Arguing his Constitutional Rights were Violated AZ Supreme Court said there was no rights problem The Supreme Court Granted “Cert” State Appellate Courts heard the case Federal Appeals Courts--(didn’t play a role) At trial, Miranda convicted and sentenced Federal District Courts (trial courts)--didn’t play a role Miranda Arrested by AZ Police, prosecuted by Arizona’s district attorney

23. “It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. ... Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Miranda v. Arizona (1966)

24. The Miranda Court Relied on Prior Supreme Court Decisions (stare decisis) “This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United States, 168 U.S. 532, 542 (1897), this Court held: ‘In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment . . . commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’’” Miranda v. Arizona

25. E-BAY Patent Case: A Civil Suit US Supreme Court reverses the Federal Circuit(interpreting federal patent statute) State Supreme Court (not involved) Federal Circuit--reverses in part, ordering E-Bay to stop using the technology State Appellate Courts (not involved) Federal District Court--after trial, E-Bay ordered to pay $$, but didn’t order E-Bay to STOP using the technology State Trial Courts (not involved) Small Company Sues E-Bay Saying its “Buy it Now” Feature Infringes its Patent Note: Federal Jurisdiction exists because patent law is federal law

26. Torts – personal injury Punitive damages McDonald’s hot coffee Woman sues for psychic damages Dis-torting the law?

27. Judicial Independence • “The Judges . . . shall hold their Offices during good Behaviour, and shall . . . receive for their services, a Compensation, which shall not be diminished during their Continuance in Office” US Const. Art III • In other words, judges have it even better than tenured college profs--they basically can’t be fired.

28. Why? • To be free of political influences in making their decisions • To be able to play their role in “checking” the other branches of government • would they ever strike down a statute or executive regulation if Congress or the President could fire them?

29. What kinds of things can judges “strike down” as unconstitutional? (Judicial Review) • Federal Statutes (Acts of Congress) • Federal Regulations or Decisions (acts of the executive branch) • State statutes • State regulations

30. The rule of law Limited government

31. Judicial Policy Making • All judges make policy, BUT…… • The Court must coexist with other governmental bodies that have their own powers, interests, constituencies, and perceptions of the public good. • Courts do not have the power to implement their decisions. The executive branch must enforce the Court’s decisions. (Eisenhower) • The president and Congress have certain constitutional powers that give them some degree of influence over the Court.

32. When do Courts Matter (have independent power)? • Paralysis of other institutions • Brown v. Board of ed. • 58 lonely men • 10 years before the legislature acts • Legislature divided and courts help decide • Leave details to the courts • Statutes that do not have all of the kinks worked out because they have low saliency and highly technical • Pass the buck • Let the courts be the bad guy so legislatures do not have to deal with the constituencies at the polls

33. “Most” of the time… • The courts serve to legitimize the status quo (remember this!) • When they TRULY act out of bounds, they can be ignored or reprimanded by the other branches (or the states)

34. Certiorari • Test cases • Signaling • Policy implications • Amicus briefs

35. Judicial Review and “Judicial Activism” • When they do this a lot, some people call them “activist” judges • Remember that civil rights/liberties limit what the other types of government can do (Congress, Executive, the state governments) • For example, they might strike down an internet porn law passed by Congress because they have a broad view of the right to free speech.

36. Griswold • Right to privacy • Contraception • History

37. Roe v. Wade is held up as a classic “activist” decision • Because the justices had a broad view of Constitutional rights, leading them to recognize a right to privacy • The result of Roe v. Wade is that state governments were more limited in what they could do (couldn’t ban abortions anymore)

38. “Activist” judges can be conservatives or liberals--it depends on which right they are treating broadly • free speech, privacy, criminal procedure rights OR • property rights, rights of businesses, 2nd Amendment, etc.

39. People opposed to “activist” judges may have different reasons • they may not like the politics of the particular decision (and so may change their views on activism depending on the case) • they may think the courts should defer more to other, more democratic, branches of government

40. Craig versus Boren I - History of gender in the courts • Before: women could be prevented from practicing law, serving on juries, working as barmaids, voting (before the constitutional amendment), • Supreme Court of Illinios: “That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth . .

41. Craig versus Boren II - gender in the courts • the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race” (comparing women with children – since they are incapable of taking care of themselves, they need the help of government protection, just like children). (balancing) • Barmaid = as long as the reason is “entertainable”

42. Craig versus Boren IV- gender in the courts • Oklahoma had a law that said that if you were a woman, you could drink when you are 18, but if you were a man, you had to wait until you were 21. 93% of those arrested for drunk driving were male, and arrests had increased 138%. • strict scrutiny test – presumption of unconstitutionality – “least restrictive means for a compelling state interest” – this probably isn’t the least restrictive means • rational basis – reasonable measure for a legitimate purpose – there is a legitimate purpose since men drink and drive more

43. Craig versus Boren V- gender in the courts • Strategy – Burger made it clear that he might join the opinion as long as scrutiny wasn’t strict. • Brennan, Marshall, White, Stevens  strict • Stewart, Blackmun and Powell – unclear – but the other four needed one of their votes. • So, if they had to choose between strict and rational, they would have had to have gone with rational. • Heightened. What? • So, in order to get someone to agree – ie Powell and Stevens, they had to go with this new “heightened” scrutiny.

44. States vs. Fed • Proposition 187 • Prenatal care to immigrants • Rights to immigrants? • Tenth amendment?