Chapter 14: The Judiciary (Mr. Hughes’s favorite!!!)

1. Chapter 14: The Judiciary (Mr. Hughes’s favorite!!!)

2. Theme A: History of the Judiciary • The power of the Supreme Court evolved slowly. Under the leadership of Chief Justice John Marshall (aka “The Chief”), 3 things happened that established the Court’s institutional legitimacy: • Defeated impeachment of Samuel P. Chase. Impeachment was purely political. Validated the doctrine of judicial independence. • The issuance of a single majority opinion that allowed the court to speak w/one authoritative voice rather than each justice writing separately • Assumption of the power of judicial review w/Marbury v. Madison, making the SC an equal partner in govt w/Congress and Prez.

4. 3 eras of Supreme Court decision-making: • 1787 – 1865Federal – state relations and slavery were the big issues. Federal preeminence was written into K theory, but only after the CW was the theory applied. Judicial review used sparingly, attesting to SC’s still uncertain status.

5. 3 eras of Supreme Court decision-making: • 1865 – 1937 Relationship b/w the govt and the economy was the big issue. SC acted to support property rights and held that the due process clause of the 14th Amendment protected commercial enterprises from some forms of regs. SC reflected laissez-faire attitude of the time. SC did however act against injustices of capitalism. In balancing public interest and private property rights, decisions became riddled w/inconsistencies in deciding b/w what is reasonable or unreasonable in terms of regulations, and inter- vs. intra-state regs. Necessities of the Great Depression compelled a revision in K theory on economic issues.

6. 3 eras of Supreme Court decision-making: • 1938 – present SC has switched its focus to the protection of personal liberties. Brought about in part by FDRs effort to pack the court for New Deal purposes. SC allowed govt a freer hand in econ regulation, and took up the stewardship of civil liberties.

7. Structure of the Federal Courts • Two kinds of federal courts were created by Congress to ease the burden on the SC. • Constitutional courts: exercise Article III judicial powers • Judges serve during “good behavior” (life) • Examples: district courts (94), Courts of Appeals (12) • Legislative courts • Created by Congress for specialized purposes • Judges have fixed terms • Judges can be removed • Example: Court of Military Appeals

8. The Three Courts

9. Selecting judges • all constitutional court judges are nominated by prez and confirmed by Senate. • Party background has some effect on judicial behavior, but rulings also influenced by: facts of the case, precedent, lawyers’ arguments • Senatorial courtesy: appointees for fed courts are reviewed by senator(s) of that state, if the senator(s) is/are of the prez’s party

10. The litmus test • Presidents seek judicial nominees who share their political ideology • Has caused different circuits to come to different rulings about similar cases • Raises concerns that ideological (litmus) tests are too dominant, and has caused delays in Senate confirmations • Greatest impact is at Supreme Court level, where there is no senatorial courtesy

11. The jurisdiction of federal courts • Dual court system – one State, one Federal • Another example of federalism in our system

12. Federal cases listed in Article III and 11th Amendment • Federal question cases: involve K, federal law, or treaties • Diversity cases: involve different states, or citizens of different states • Some cases can be tried in fed court OR state court • If both fed and state laws have been broken (dual sovereignty) • State cases can sometimes be appealed to SCOTUS

13. Route to the Supreme Court • Most federal cases begin in district court • Most are straightforward; do not lead to any new public policy • Supreme Court picks cases it wants to hear on appeal • Requires agreement of 4 justices to hear case – to issue writ of certiorari (Rule of Four)

14. Usually deals with • Significant federal or K question • Conflicting decisions by circuit courts • K interpretation by one of the highest state courts, about state or fed law • Fewer than 100 cases per term (year) are granted cert

15. Getting to court – • Why it is difficult • SC rejects all but a few applications for cert • Costs of appeal are high • Costs can sometimes be lowered: • In forma pauperis: plaintiff is indigent, costs paid by taxpayers • Indigent defendant in criminal trial: atty provided by taxpayer, no charge to defendant • Payment by interest groups (ACLU, NRA, etc.)

16. Standing: deciding who is entitled to bring a case • Must be a real controversy – no “friendly” cases • Personal harm must be demonstrated • Being a taxpayer does not automatically entitle a person to bring suit against govt. Somewhat relaxed in 1st Am. Cases • Sovereign immunity: govt must consent to being sued

17. Supreme Court Hearings

18. Supreme Court Deciding Cases

19. Supreme Court in action • Oral arguments after submitting briefs in advance • Each side has ½ hr, but justices can interrupt w/questions • Role of solicitor general: decides what cases the fed govt will appeal to the Court • Also submits amicus curiae briefs on many cases; SC has high regard for these briefs • Amicus briefs may be submitted if parties agree or SC grants permission, which they do about 85% of the time • Justices influenced by many sources…law journals, international law, precedent, political climate (RARELY, and always justifiably), personal convictions…

20. In conference: • Chief Justice, speaks first, votes last • Chief Justice assigns opinion writing duties, if voting w/majority. If voting w/minority, assigns dissenting opinion and senior associate justice in majority assigns the majority opinion • Concurring opinions – justice agrees w/majority, but for different or additional reasons • Dissenting opinions – explains logic of dissent. These often become basis for future majority opinion on those rare occasions the SC reverses an earlier opinion

21. Voting patterns: • 1960s Warren Court – • liberal, activist in terms of civil liberties and civil rights • 1970s and 1980s Burger Court – • generally balanced b/w conservatives (Burger, Rehnquist, O’Connor), liberals (Brennan, Marshall, Blackmun, Powell), and swing voters White and Stevens. As the swing vote goes, so goes the Court. • 1990s Rehnquist Court • Balanced, leaning toward conservative • Conservative: Rehnquist, Scalia, Thomas • Liberal: Ginsberg, Breyer, Stevens, Souter • Swing voters: O’Connor, Kennedy

22. SCOTUS Today • The Roberts Court • Balanced, leaning conservative • Liberal: Ginsberg, Breyer, Kagan, Sotomayor • Conservative: Roberts, Alito, Scalia, Thomas • Swing Vote: Kennedy

23. THE POWER OF THE FEDERAL JUDICIARY • The power to make policy • Over 130 laws declared unconstitutional • Over 260 prior cases overturned (not following stare decisis) • Courts more likely to tackle political questions than before • Judges can order massive remedies based on K or on interpretation of federal laws

24. Views of judicial activism • Supporters • Courts should correct injustices when other branches or state govts fail to • Courts are the last resort of regular people (those not wealthy/powerful enough to have true access to policymakers

25. Views of judicial activism • Critics • Judges lack expertise in policymaking • Initiatives involve balancing policy priorities and allocating taxpayer $; judges not qualified or informed enough to do that • Judges are unelected and therefore unaccountable

26. SC decisions can be undone by • Revising legislation • Amending K • Altering jurisdiction of the Court • Restricting Court remedies

27. Public opinion and the courts • Defying public opinion could be dangerous for the legitimacy of the SC • Opinion in realigning eras may energize the court (1950s and 60s, civil rights movement) • Public confidence in the SC has generally gone up and down w/support of the govt over the last 40 years