PO 111: INTRODUCTION TO AMERICAN POLITICS

1. PO 111: INTRODUCTION TO AMERICAN POLITICS Summer I (2014) Claire Leavitt Boston University

2. TABLE OF CONTENTS • The Basics: Judicial Powers and Judicial Review • SCOTUS as Political Institution • The Role of Justices: Interpretation and Construction • Scalia and textualism • Breyer and the living Constitution • Case Studies and Confirmation Politics

3. LEGAL SYSTEMS • Civil Law: • Codified law • Judges have very little discretion; they follow laws/rules established by the legislative or executive branch • Case law (precedent) is subordinate to statutory (legislative) law

4. LEGAL SYSTEMS • Common Law: • Uncodified law • Independent judiciary not beholden to the laws of Congress or the Executive • Judges governed not by extant laws but by judicial precedent and thus enjoy considerable discretion • American judges are constrained by the Constitution

5. JUDICIAL AUTHORITY UNDER ARTICLE III • The Supreme Court is head of the Judicial branch of government (equivalent to the President atop the Executive branch) • Congress may create and shape lower federal courts • SCOTUS size conspicuously absent from Constitution (left to Congress to decide)

6. JUDICIAL AUTHORITY UNDER ARTICLE III • Original Jurisdiction: With a few notable exceptions, all SCOTUS cases will come from a lower court • Right to a trial by jury • Establishes judicial protocols for the singular crime of treason

7. JUDICIAL AUTHORITY UNDER ARTICLE III Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

8. JUDICIAL STRUCTURE

9. JUDICIAL AUTHORITY UNDER ARTICLE III • Judicial Review: • “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” • Does judicial review exist under the Constitution?

10. FEDERALIST 78 • Judiciary is weakest form of government • Possible that Congressional agents may betray their principals • All laws revolve around the Constitution • Constitution supreme law (Article VI) • Judicial power extends to all cases (Article III) • Judicial check necessary to prevent augmentations of power and constitutional violations by Congress (strongest branch)

11. MARBURY V. MADISON • Judiciary Act of 1789 granted Supreme Court more jurisdictional power • Justice Marshall ruled the Act violated the Constitution • Since Constitution is supreme law of the land, Court obligated to side with the Constitution and against Congress • Established power of judicial review

12. MARBURY V. MADISON • Justice Marshall’s Chess Move: • Marshall loyal to Federalist party (supporters of Judiciary Act) • Marshall cognizant that Jefferson might ignore his ruling in the Federalists’ favor; possible embarrassment; loss of prestige • Marshall rules that litigant (Marbury) was right, but that Marbury’s case simply fell outside the Court’s constitutionally-mandated jurisdiction

13. MARBURY V. MADISON • Justice Marshall’s Chess Move: • Marbury decision seemed, prima facie, to reduce Court’s power in favor of the Constitution • In fact, Marbury decision strengthened Court’s power, by establishing right to judicial review • Court became a branch of government equally as powerful as the Executive and Legislative

14. THE COURT AS POLITICAL INSTITUTION • Judiciary reconciles competing preferences of various actors with the Constitution; is thus political • Judiciary’s legitimacy based on reputation as an objective legal institution • What does public opinion say?

15. THE COURT AS POLITICAL INSTITUTION • Perceptions of judicial legitimacy dependent upon personal preferences • Judiciary cannot escape being perceived as political • How political is the judiciary: Does it actually respond directly to popular opinion?

16. THE COURT AS POLITICAL INSTITUTION • 1950-1981: Majoritarian Era • SCOTUS directly responded to public opinion, even without a change in membership • Approximately five year lag in PO response • Court response to PO was then reinforced and validated by PO • Examples: Review of New Deal legislation; Korematsu v. United States

17. THE COURT AS POLITICAL INSTITUTION • 1981-present: Counter-Majoritarian Era • Ideological tenor of the Court has shifted • Court no longer directly responds to public opinion; decisions run counter to majority opinion • Why?

18. ORIGINS OF THE OBJECTIVITY NORM • In the first decade or so of American political life, Court was viewed as unabashedly political • Public opinion and political elites supported a politicized judiciary • Jefferson-backed impeachment of Justice Samuel Chase ushered in the new norm • Objective, legalistic depoliticized accepted norm of Court has since persisted

19. ORIGINS OF THE OBJECTIVITY NORM • In the first decade or so of American political life, Court was viewed as unabashedly political • Public opinion and political elites supported a politicized judiciary • Jefferson-backed impeachment of Justice Samuel Chase ushered in the new norm

20. IS IMPARTIALITY A MYTH? • What is the role of SCOTUS justices? • Court cannot choose its cases • Court hears approximately .8 percent of cases • Interpretation: What does the Constitution say? • Construction: What does the Constitution mean?

21. SCALIA AND TEXTUALISM • Strict Constructivism: Constitution should be interpreted as stringently as possible, based on the text alone • Textualism: Constitution should be interpreted reasonably, without supplementary investigation about intent; some interpretation will always be necessary

22. SCALIA AND TEXTUALISM • The problem with principle: • Judges often take advantage of case law to qualify or tweak precedent in order to put their ethical stamp on a law • These judges believe that laws should be the best versions of themselves, encompassing the intent of the lawmakers and the zeitgeist • For Scalia, there is no “best” version of the Constitution, and thus no best laws

23. SCALIA AND TEXTUALISM • “Flexible” Constitution often used to justify limits on, not expansions of, personal liberties • Courts should not be the agents of change in American politics • Court’s responsibility is to defend the Bill of Rights against the encroachments that the Founders predicted

24. SCALIA AND TEXTUALISM • Problems? • How to deal with Court mistakes? Only by constitutional amendment? • What if amendment fails despite popular support? How legitimate is the amendment process as a vehicle for social change? • Is textualism itself a political principle?? • Constitution Legislatures  Social Change  Courts Constitution 

25. BREYER AND ACTIVE LIBERTY • Spirit of the Constitution as a whole should be considered when reviewing laws • What is the purpose behind the laws under review? What is/are the political context/circumstances? • Court should defer to the democratically-elected institutions

26. POLITICAL ACTIONS (?) • Bush v. Gore in hindsight • Did the Court make a mistake? • NFIB v. Sebelius(Affordable Care Act) • Did Roberts change his mind for political reasons? What might those reasons be?

27. APPOINTMENT AND CONFIRMATION • Strategic game between the president and the Senate; begins during presidential campaigns • Attack ads (Diane Wood; Romney and Bork) • The confirmation process is highly politicized, but both senators and the justices themselves lionize the Court as independent and apolitical • Confirmation battles (Roberts; Thomas; Bork)