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The Judicial Branch

This informative article explores the role of judges in making public policy, the concept of judicial review as a check and balance, and the controversial expansion of rights and entitlements during the 60s and 70s. It also delves into two competing views - strict constructionist and activist approach - and how the evolution of courts has impacted the nation. Additionally, it examines different eras in the history of the judicial branch and highlights important Supreme Court cases.

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The Judicial Branch

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  1. The Judicial Branch This time it’s judicial!

  2. Role of the Judicial Branch • US - judges play a large role in making public policy • Judicial review - checks & balances • Expanding rights & entitlements during 60s & 70s - controversial - Federalist #78 • Britain - Parliament is supreme over courts • Australia, Canada, Germany, India - independent judiciary

  3. 2 Competing Views • Strict constructionist - judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution - Scalia, Thomas

  4. The Other View • Activist Approach - Loose Constructionist - judges should discover the general principles underlying the Constitution & its vague language amplifies those principles on the basis of some moral or economic philosophy & applies them to cases - Brown 1954, Roe 1973 • 50 yrs ago - judicial activists tended to be conservative & strict constructionist judges were liberal - today the opposite is true - Breyer, Ginsburg, Stevens

  5. Evolution of Courts • Traditional - Restraint - judges find & apply existing law • Federalist #78 - “least dangerous branch to political rights” • Hamilton - decide when law is contrary to Constitution but was not supposed to augment but confine • Proactive - Activist - judges do not only find but make the law • Increased b/c more access to courts to hear case • Increased in proportion to the increase the whole gov’t experienced

  6. Nation Building - 1st Era - 1787-1865 • To answer questions regarding the nation-state relationship • Chief Justice John Marshall - nat’l law was supreme & judicial branch had right to judicial review but must work within precedent (stare decisis) • Marbury v. Madison 1801- judicial review • McCulloch v. Maryland 1819 - nat’l gov’t supreme • Tension between Jeffersonian Republicans (states’ rights) v. Federalists • Question of slavery - Taney (state’s rights appt by Jefferson) & Dred Scott 1857

  7. Gov’t & the Economy 2nd Era 1865-1937 • Question about property arises - Court dedicated to protecting private property • Ex: struck down federal income tax (1895), limited ICC (Interstate Commerce Commission) power to railroad rates • Ex: allowed for many state regulations (state mine safety laws) Old SC Chambers in US Capitol

  8. 14th Amendment - Due Process • Protect black claims to citizenship from hostile state action, protect private property & corporations from unreasonable state actions • Court constantly dealing w/ gov’t regulations on business • 1880s-1890s - judicial activism born as courts are arbiter of what kind of regulation was permissible

  9. More from this era… • Supportive of private property but unsure how to draw line between reasonableness & unreasonable regulation • 14 & 15th Amendments - construed narrowly to give blacks limited benefits - ex: segregation in schools, buses, etc • Plessy v. Ferguson

  10. Gov’t & Political Liberty (3rd Era) - 1938-Present) • Personal liberty v. social equity & potential conflicts between the 2 • Switch from restricting state or federal power to regulate to restricting gov’t laws that violated personal political liberties • FDR - “Court Packing” - not passed • Still questioning federal power over commerce - 1990 - Free School Zones Act

  11. Political Liberty Continued • Earl Warren - start of an activist court • Former Gov. of California • Was nominated by Eisenhower as a conservative • Brown v. Board • 14th Amendment • Gideon v. Wainwright • 6th Amendment • Miranda v. Arizona • 6thAmendment • Loving v. Virginia • Overturned 1924 Racial Integrity Act • Permitted interracial marriages

  12. Structure • Constitutional courts - serve during “good behavior” & no salary reduction - district courts (94) & courts of appeal (12) • Legislative Court - set up by Congress w/ judges w/ fixed terms subject to removal & salary reduction

  13. Judge Selection: have you ever been borked? • Party background has some influence - Democratic judges - more liberal than Republican ones • But ideology does NOT determine behavior always (Ike & Warren, Bush ‘41 & Souter) • Reagan nominates ultra-conservative Bork to S.C.—Ruled against abortion in Rosemary v. Baby Bork Warren

  14. Appointing Federal Judges • Senatorial Courtesy - normally President nominates only persons recommended by the senior senator from the state where the district is located • Litmus Test - test for ideological purity for judges that influences appt. • Trends - 140 nominees to SC - 27 rejected by Senate • Most recently: Harriet Miers • Filibustering judicial appts a new practice?

  15. Jurisdiction of Courts • 2 types of federal jurisdiction • Federal question cases - under Constitution, US laws, & treaties • Diversity cases - cases involving citizens of different states • Dual sovereignty doctrine - state & federal authorities can prosecute the same person for the same conduct • Did not want local authorities to block prosecution of an accused person who has their sympathy (ex: black lynchings in South or to secure both have jurisdiction)

  16. Supreme Court How they hear a case • Writ of Certiorari - lower court petitions higher court for review in which a federal or constitutional question has been raised (rule of 4) • 2 or more federal circuit courts of appeal have decided the same issue in different ways • Highest court in state held a federal or state law in violation of the Constitution or has upheld a state law against the claim that it is in violation of the Constitution

  17. SC Accepts 1-3% of cases (90-200 per year) • In forma pauperis - hear petition for free v. $300 fee • Brief presented by lawyer for normally no longer than 1/2 hour (Because the justices take vitamins at 2, dinner at 4, and bedtime by 5…cuz they’re old…get it??? • Amicus Curiae brief - allow justices to know where interest groups stand on a case but claim not really influenced by this • World of lawyers & law profs can help shape the conclusions

  18. Decisions • Per curiam opinion - brief & unsigned • Opinion - if SC chief justice in majority, he/she writes this • Concurring opinion - who agree but for different reasons • Dissenting - stare decisis, remedy, political question - being to another branch of gov’t to decide

  19. Various Rules • Fee shifting - plaintiff to collect its loses from the defendant if he/she loses • Standing - right to have case brought & heard - it is easier to acquire standing • Sovereign immunity - can’t sue federal gov’t w/o its consent • Class action suit - others benefit from one ruling (Brown)

  20. Checks on Judicial Power • No police force or army • Senate confirmation of judicial appts by 51% vote • Impeach judges • Congress determines # of judges (can increase) • Amend the Constitution (16th Amendment - income tax) • Decide what the entire jurisdiction of the lower & appellate jurisdiction of the SC shall be • Public opinion - sensitive to elite opinions

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