Supreme Court

1. Supreme Court Judiciary – The cornerstone of our democracy

2. Judicial Review • Marbury v. Madison (1803) • Allows the courts to rule on the constitutionality of laws, giving the court the power to strike down or reinforce policy • Judiciary Act of 1789 and the writ of mandamus ruled unconstitutional

3. Applications of Judicial Review • Review of Congressional Acts • Since 1803, close to 200 congressional acts have been struck down as unconstitutional • People can litigate (initiate lawsuits) to oppose a law, especially if they feel like their voice was not heard • Allows people without the political clout or influence to lobby Congress directly to still be heard

4. Applications of Judicial Review • Review of Presidential Actions • Citizens and courts can challenge the president’s use of executive order • Truman sent troops to seize the steel mills in 1952 when there was strike because would have diminished our military capacity in the Korean War and would hurt the national economy • SCOTUS struck it down as unconstitutional (Youngstown Sheet & Tube v. Sawyer) • Will we see Boehner v. Obama in the near future?

5. Applications of Judicial Review • Review of State Actions • Judicial review of state and local acts reinforce the “supremacy clause” of the Constitution • Fletcher v. Peck 1810- first time a state law was struck down as unconstitutional • McCulloch v. Maryland 1819 – taxing the bank of the United States was unconstitutional

6. Limits on Judicial Review • Justiciable dispute – must judge actual situations, not hypothetical situations (aka Live Controversy rule) no “What if we passed a law about ____? Is it Constitutional? All cases must be real or “live”. • Political question – absence of existing law makes it difficult for the court to rule on a case; won’t hear a case until a law has been passed regarding the issue • Ex. – anti-gay marriage laws in the past 10 years - the court began to hear those cases in March of 2013 – more expected

7. Types of Jurisprudence Adversarial system – in the US • “Blind justice” - decision must be made between 2 choices (defense vs. prosecution – each presents its side of the case) • Innocent until proven guilty • court can’t bring up an issue - court maintains impartiality and decorum and the jury weighs the evidence • 5th Amendment - defendant doesn’t have to testify against oneself - we use this system in the US • Civil lawsuits – plaintiff vs. defendant – suing over money or property - 7th amendment

8. Types of Jurisprudence • Inquisitorial system • presumed guilty unless you can prove innocence • court is actively involved in pursuing facts/investigating the case • European (Roman/Napoleonic code) model • judge questions the defendant to try to get them to admit guilt • defendant can present their side of the story w/out being cross-examined; think Amanda Knox case in Italy – three trials took place • Remember World Civ. “Spanish Inquisition”

9. Federal Court System • Step 1 – DISTRICT COURTS • 94 US Dist. – Hear 342,000 cases/yr • Trial by jury (only federal court with jury) • Judge David Bunning sits at this level • Step 2 – APPEAL (CIRCUIT) COURTS • 12 Courts of Appeal – Hear 61,000 cases/yr • Panel of 3 judges, sometimes more • No cases start here, review district court decisions • (MI, OH, KY, TN in the 6th District)

10. Federal Court System • Step 3 – US Supreme Court • 2013 – plenary review with oral arguments in about 100 cases – 5000 petition the court but most are denied • 80-90 opinions written; 50-60 cases decided without oral arguments • Cases audio recorded and released on www.oyez.org • Hear appeals – writ of certiorari – ask for records of the case • Very few “original jurisdiction” cases (they hear it first) • “Rule of 4” – four justices needed to agree to hear a case –this is “to grant cert.” • To refuse a case the court will say “Cert. Denied”

11. The Roberts Court Chief Justice John Roberts

12. Appointment process • President appoints judges for ALL federal court vacancies • Senate must confirm all nominations by majority vote (Advice and consent) • Senatorial courtesy – tradition started by GWashington to seek approval from Senators over appointed judges from their states – Senators get first right of refusal

13. Public Influence on Justices • Justices are NOT elected, appointed by President • However, not entirely immune to public opinion • Since they were appointed by a specific president, they generally agree with his ideologies. • Justices are aware of public opinion, and are aware that decisions that flagrantly go against public opinion will not be implemented or will be subverted by the legislative or amendment process

14. Checks on SCOTUS • President appoints all judges • Senate must confirm appointed judges • Congress may alter the structure of the court system (add or subtract # of courts and justices) • Congress has the power to impeach judges • Congress may amend the Constitution if the Courts find a law unconstitutional • Ex. Income tax law originally found unconstitutionally so Congress added 16th amendment in 1913

15. Types of Opinions • When an opinion is written (a decision), it often takes months and many drafts • Majority Opinion – justices in the majority must draft an opinion setting out the reasons for their decision – who won the case? Why? • Concurring Opinion – justices who agree with the end result (who won), but not the legal logic used by the majority (still get their name in the legal/historical record) • Dissenting Opinion – justices who disagree with the majority opinion write their side – can be one dissent or multiples depending on legal logic used

16. Implementation • The court is only as powerful as the president that will enforce its decisions. • “John Marshall has rendered his decision; now let him enforce it!” – Andrew Jackson • Refused to enforce Cherokee land rights; resulted in the “Trail of Tears” – his successor Martin Van Buren eventually carried out the removal • “All deliberate speed” – Chief Earl Warren • 10 years after Brown only 1% of Southern schools were desegregated • Eisenhower & JFK sent army south to desegregate • Court must rely on other branches, state & local officials and law enforcement agencies to enforce its ruling

17. More SCOTUS Vocab! • Stare decisis – “Let the decision stand” – refusing to take a case (Cert. Denied) ALSO means that the lower court decision stands – Stare decisis – it is a form of judicial restraint • Amicus curiae brief – “Friend of the court” – anyone can use their First Amendment right to petition the court to hear a case on behalf of someone else – the legal brief explains the seriousness of the issue and why the case should be heard

18. Conservatism vs. Liberalism??? • Justices are supposed to be “above politics” and maintain impartiality • However, they do have personal ideologies or biases • EX. – CJ Earl Warren (1953-69) and CJ Warren Burger (1969-1986) skewed liberal • CJ William Rehnquist (1986-2005) and CJ John Roberts (2005-?) skew(ed) conservative • Depends on the issue – can be “loose construction” on one issue but “strict construction” on another

19. Strict vs. Loose Construction • Loose Construction • Courts should interpret the meaning of the Constitution broadly and should not limit themselves to what is specifically stated or written • The Constitution must grow and adapt to new circumstances • Hamilton & Jefferson debated the “elastic clause” – Hamilton favored loose construction to create bank – Jefferson not so much

20. Strict vs. Loose Construction • Courts should not reinterpret the Constitution • Courts should interpret the Constitution as the framers intended • In other words, they follow the “original intent” of the framers. (Justice Scalia’s “originalism”)

21. Activism v. Restraint • Judicial Activism • Judges should interpret law loosely, using their power to promote their preferred political and social goals. • Judges are said to be activists when they are likely to interject their own personal values in court decision • Warren Court and Burger Courts (1950’s to mid 1980’s)

22. Activism v. Restraint • Judicial Restraint • Legislators, not judges, should make the laws. • Judges are said to exercise judicial restraint when they rule closely to laws/statutes and previous cases when reaching their decisions. • Rehnquist court (mid 1980’s to 2000’s) • But is using restraint still injecting one’s personal values?