American Government

1. American Government The Judiciary

2. Debate: Bush v. Gore • Supreme Court decides 5-4 to ‘stop the recounts’ ordered by Florida Supreme Court – essentially declaring Bush the victor. • Questions: • Was this judicial activism? • What role did politics play?

3. The Judicial Branch Federal courts are important in U.S. due to two factors: • A. higher law notion of constitutionality • Constitution = societal contract • some institution must interpret that contract • courts have assumed that role, because they are seen as less political • B. separation of powers • courts are largely independent of the other branches • because, they are capable of protecting themselves • in short, courts are political actors

4. The Creation and Organization of the Federal Judiciary • Article III – The United States Supreme Court • Article I – Congress has the Power to Establish Lower Federal Courts • Federal District Court (94) • The Federal Courts of Appeals (12+1)

6. Federal Court Organization (simplified) • The federal courts are organized in to three tiers - like a pyramid. • Base: Federal District Courts • Each state has at least one district court and no district encompass more than one state. • There are 94 total district courts and about 665 judges. • These courts are presided over by federal judges who are appointed by the president, confirmed by the senate and hold office for life. • Each court has a minimum of two judges and a maximum of about 27. • These courts hear about 280,000 criminal and civil cases per year.

7. Federal District Court • Federal district courts have original jurisdiction in most, but not all, federal cases. Some of these are criminal, but many if not most cases are civil. • Federal district courts use both grand and petite juries and cases are argued by United States Attorneys, who are appointed by the president via senatorial courtesy. • Missouri has two federal districts: Western & Eastern.

8. Missouri Federal Districts

9. Federal Courts of Appeals • 11 geographic circuits, DC 12th, 13th Court of Appeals for Federal Circuit. • Court of Appellate Jurisdiction • Hear about 40K per year • No Juries / Three Judge Panels • Written Briefs

10. Middle Tier: The US Court of Appeals • Cases that are adjudicated by the federal district courts may be appealed to one of 13 U.S. Courts of Appeals. • Twelve of these courts are regional circuit courts - that is, they hear cases from larger geographic areas known as circuits. • The Thirteenth court is in Washington D.C. and concentrates on appeals related to civil suits against the US government. These courts hear about 36,000 cases per year. • Cases are heard by three judges who largely work off of written arguments known as briefs with limited oral arguments on the part of attorneys. There are no juries, witnesses or cross examinations. • Missouri is located in the 8th Circuit which sits in St. Louis, MO. The 8th Circuit hears cases for the following states: Arkansas; Iowa; Minnesota; Missouri; Nebraska; North Dakota; South Dakota.

12. Top Tier: The United States Supreme Court • The Supreme Court is both a court of original and appellate jurisdiction. • Article III (section 2) outlines the original jurisdiction of the court. Most important is the supreme court's role as the first and only arbitrator of legal disputes between the states. • Article I grants Congress the power to establish appellate jurisdiction for federal courts. • Most cases heard by the court are on appeal from the US courts of appeals and state courts of last resort (the highest of the state courts)- although in extraordinary circumstances the court will hear a case directly after resolution in district court • E.g. United States vs. Nixon (1974) • The Supreme Court hears relatively few cases - approximately 150 – 200 per year out of 5000 - 7000 requests for review. 97% of requests for review are rejected on average.

13. Article III, Section II: Supreme Court Jurisdiction • 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;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. • In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

14. The United States Supreme Court • How the US SC Hears Cases • Writ of Certiorari • Petition for Court to Hear the Case • Literal meaning (request for lower court records) • Rule of Four • Exhaust the State Judiciary • Exhaust (almost always) the federal judiciary

15. Supreme Court: Basic Procedures • Cases appealed from the states must meet two conditions. First, they must have exhausted the state system. Second, they must raise federal questions - issues of constitutional principles, federal law, etc. • The court exercises total control over its docket and decides what cases to hear by the rule of four • The procedures of the supreme court look much like those in appellate courts. The nine justices hear oral arguments and read briefs including amicus curiae briefs. • The federal government, a usual litigant in before the court, is represented by the United States Solicitor General (Paul D. Clement)

16. Basic Procedures (con’t) • Court hears oral arguments and then meets in private meeting to vote on case. • Senority • Agenda setting • After the court decides a case by majority vote, a majority (typically the chief justice if in the majority or the most senior justice in the majority) and minority opinion is written. • These serve as the guide for lower courts to handle similar cases. Because of the principle of Stare Decisis the majority opinion explains the basis for subsequent rulings.

17. The United States Supreme Court • How the US SC Hears Cases Continued • There are several types of opinions issued by the Courts: • per curiam - decision delivered via an opinion issued in the name of the Court rather than specific justices. Tend to be short and on non-controversial issues. • Majority opinion - opinion of the court • Concurring opinion - written by justice who agrees with the majority's conclusion, but not its reasoning • Dissenting opinion - written by justice who disagrees with the majority's conclusion • The Court generally decides cases from the bottom-up. • Amicus Curiae & likelihood of review

18. Courts in Perspective • How Powerful are the US Federal Courts? • The strongest courts in the world • The weakest branch of government

19. Tools of the Court • Judicial Review • Marbury v. Madison (1803) • Exercise of JR • Approximately 160 Federal Statutes • Approximately 1400 State/Local Statutes (2/3 of which date to the incorporation era)

20. The Federal Courts • Article III establishes the Supreme Court. One of the major justifications for the court is the Supremacy Clause which establishes the preeminence of national over state law. • Congress also has the power to establish lower federal courts, and during the first congress the United States was divided in to judicial districts for the establishment of federal district court (there are 94 district courts in the United States). • Basic point: the United States has the strongest court in the world.

21. Strongest Courts Courts are powerful for several reasons • A. Ability to act as a regulator • regularly rule on the validity of federal regulations • many regulations currently not seen as valid until upheld by the courts • B. Ability to invoke judicial review • declare acts of Congress or the president to be impermissible under the Constitution • have done so about 160 times since 1803 • have ruled state laws unconstitutional about 1,000 times • C. One of the most trusted institutions in government • public trust is high • even given intrepretivist vs. activist debate

22. Federal Courts are Limited • stare decisis • lawyers love precedent • prefer stability offered by prior cases -- less disruption to society and to reputation of the Court • writing in 1992 case of Planned Parenthood of Southeastern Pennsylvania vs. Casey, Justice David Souter noted, in upholding Roe: "For two decades of economic and social development, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.... [Whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."

23. Limits: Justiciability • must wait for cases to come to them - reactive, not proactive • The case must be justiciable: • there must be a real controversy - no friendly suits, no advisory opinions (unlike many state supreme courts) • case must be ripe and not moot - other avenues (state courts, etc.) must be exhausted, injuries real – not hypothetical, etc. • parties must have standing - they must be the ones at risk, government must waive sovereign immunity, etc. • Case must not present a political question - court must see the matter as one that can be solved by judges; often eliminates political matters on which the Court has no special expertise (e.g. conundrum of War Powers Act; Bush v. Gore)

24. Limits • limited ability to enforce rulings — on either public or other institutions • 1. as a result, courts are rarely out of step with the Congress and president — see limited number of cases of judicial review • 2. also courts rarely out of step with the public • The Barnum study • Court rules on matters such as abortion, contraception, busing, etc. only as public opinion approaches or passes 50% • sole exception = prayer in school • Mishler & Sheehan – Court is not a countermajoritarian institution. • Result  courts are usually yea-sayers, not nay-sayers; legitimizers, not challengers

25. Are the Courts Political or Above Politics? • The political implications of judicial decisions • Reapportionment • Baker v. Carr (1962) • Privacy and Abortion • Griswold v. Connecticut (1965) • Roe v. Wade (1973)

26. Political Jurisprudence? Bush v. Gore (2000) • The Florida recount violates equal protection and there is no time to fix the problem. • Breyer, Ginsburg, Souter, Stevens - No • O’Connor, Kennedy, Rehnquist, Thomas, Scalia - Yes

27. Bush v. Gore (USSC) END THE COUNTING (5-4) YES YES YES YES YES NO NO NO NO EQUAL PROTECTION (7-2) YES YES YES YES YES YES YES NO NO ARTICLE 2 (3-6) YES YES YES NO NO NO NO NO NO

28. Judicial Politics • The Nomination and Confirmation Process is Partisan • Democratic Presidents Nominate Democrats to the Federal Courts, Republican Presidents Nominate Republicans to the Federal Courts • The Senate behaves accordingly

31. Number of Federal Judges Appointed by… • Article III Judiciary • 871 Federal Judgeships

32. The myth of the non-political court. • Judges are said to be impartial, decorous and fair and above politics. • Is this view correct? • with respect. to neutrality/impartiality? • role of arbitrators? • in general it is vastly overstated. • Judges manage social conflict as in school funding, social issues, etc.

33. The Myth of the Nonpolitical Court • Appointment: • The president nominates individuals to the federal courts - w/ senate conformation. The senate is, as we have seen, interested in this process, but traditionally does not like to fight the executive too much on court appointments. • The President is very interested in the political views of appointees. • Judges need this non-political myth because they are the weakest branch of government.The judiciary must rely on the cooperation of the others, especially the other branches to get anything done.

34. Powers of the Court • The supreme court has the power of Judicial Review. That is, to declare laws passed by congress an the states unconstitutional and therefore null and void. This is what makes the courts so powerful. • Marbury v. Madison - 1803. • The election of 1800 witnessed the defeat of the federalists and the election of democratic president Thomas Jefferson. Before leaving office Federalist president John Adams, w/ the help of the federalist dominated legislature, packed the judiciary with loads of federalist judges. Jefferson was furious, and when he realized that several of the appointments had not been delivered he order they be cancelled. One of the appointees, Wm. Marbury, asked the court to order that the appointments be made.

35. Judicial Review • This placed the court in a difficult position. The chief justice - John Marshall - was a federalist. If he ordered the appointments, he risked the integrity of the court because it was likely that Jefferson would ignore the order. If he did not, he also risked the integrity of the court by backing down. • Solution. Marshall ruled that the Judiciary Act which authorized the appointments (actually authorized the courts to order the appointments) conflicted with Article III of the constitution. In particular, he ruled that the court did not have jurisdiction in this matter. • The Democrats were satisfied because they won the battle. The court, by giving a little ground on a minor question protected itself and established the principle of judicial review which was very slowly developed over the next century or so. => Greatly strengthened the court.

36. Judicial Review • Between 1803-mid 1990's the court has only held about 160 federal statues, 1000 state statutes and 120 municipal statues to be unconstitutional. • Point; the supreme court exercises judicial review, but not frivolously. • Checks to prevent abuse: • 1. Constitutional Amendment • 2. Impeachment of Judges

37. Important Judicial Decisions • Reapportionment. Baker Vs. Carr (1962), and other cases => one man one vote. Shifted political power from rural to urban areas.

38. Important Judicial Decisions • Abortion • Beginning in the 1960's the court began to expand rulings on right to privacy - nothing in the constitution directly deals with privacy, but there are several related ideas - search and seizure, (for example), • Griswold v. Connecticut (1965) the court declared a Connecticut law outlawing the sale and distribution of contraceptives to be unconstitutional. By 1973 the court ruled (Roe v. Wade (1973)). the right of privacy extended to abortion. (Casey vs. Planned parenthood of Southeastern Pennsylvania (1992))

39. The Court and Democratic Legitimacy • The court is political - how can it be legitimized under democratic theory? • Court justices are not elected and serve for life. Formally, there is very little participation of the American people in the selection of federal judges.

40. The Court and Democratic Legitimacy • Possible answers: • 1. The court is not legitimate and, under democratic theory, there is no justification for its powers. • 2. Counter argument: Too much emphasis is placed on the ideal of pure democratic theory. Look to the original justifications of the founders, who, as we know, were terribly suspicious of mass participation in government and sought to find way to insulate the political process from ‘momentary passions’ and abusive majorities associated with large polities. • Does a democratic polity requires an undemocratic branch of government?

41. Supreme Court: Historical Perspective • I. History of Supreme Court can be divided into three periods, distinguished by the Court's priorities • PERIOD 1: 1789 to Civil War • period of nation building • focus on defining the role of the new federal government and its relations with the states • KEY CASES • a. Marbury vs. Madison • b. Martin vs. Hunter's Lessee • c. McCulloch vs. Maryland • d. Gibbons vs. Ogden • e. Dartmouth College v. Woodward -- "nor shall any person ... be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation" • f. Dred Scott vs. Sanford - the Dred Scott case

42. Period 2: Civil War to New Deal SECOND PERIOD - Civil War to New Deal • period of economic-based decisions • focus of Court  strong attachment to and defense of private property • Lochner v. New York • based on an economic interpretation of 14th amendment, no deprivation of "life, liberty or property, without due process of law" • But -- 14th was intended to protect newly-freed black slaves • used by a conservative court to protect property owners - via review government regulations on businesses • called "substantive due process" - courts reviewed the substance of legislation rather than the process of legislating • Court also strictly limited the other major clause of the 14th amendment: equal protection • -in Strauder v. West Virginia (1880)

43. Period 2 (con’t) • Court became the arbiter of government attempts to regulate the economy • limited the ability of the Congress to control the economy • using substantive due process, Court struck many governmental regulatory efforts during the late 1800s and early 1900s • Examples: • -ruled income tax unconstitutional • -limited government efforts to break up monopolies • -limited government efforts to regulate child labor • -prevented government efforts to place limits on length of work week • -restricted Interstate Commerce Commission efforts to set railroad rates

44. Period 3: Post New Deal • THIRD PERIOD - Post New Deal • Court's focus shifts from economic regulation to issues of personal and political liberty • Substantive due process comes to a head during the New Deal • a. President Roosevelt frustrated by Supreme Court in his efforts to expand federal efforts to combat the Great Depression • Court struck many recovery programs as burdensome to business • Court Packing: FDR attempts to overcome Court by expanding its numbers • one new justice for each current justice over the age of 70, up to a maximum total of 15 justices

45. Period 3 (con’t) • Court and people vigorously disapprove --- seen as an attack on the integrity of the court for political reasons • Court-packing effort fails, but sends a message to the justices --- change or face further political reprisals • Scheme fails, but FDR gets results • one justice (Owen Roberts) suddenly changes his voting behavior, giving the Court a small liberal majority • - The “Switch in Time that Saved Nine” • -1936, in case of West Coast Hotel vs. Parrish, Court for first timeupheld a minimum wage law --- end of substantive due process

46. Period 3 (con’t) • Since then, little Court interference in economic regulation • Instead, a focus on political and personal rights • especially under the leadership of Chief Justice Earl Warren (former GOP governor of California; appointed by Ike) • Brown vs. Board of Education of Topeka • Griswold vs. Connecticut • Engel v. Vitale & Murray v. Curlett • Justice Tom Clark wrote, "Religious freedom, it has long been recognized that government must be neutral and, while protecting all, must prefer none and disparage none."

47. Period 3 (con’t) • Reynolds v. Simms • Even under subsequent, more conservative chief justices (e.g., Warren • Burger, William Rehnquist), Court has remained active in these areas: • -Burger (Nixon's appointee) wrote busing cases • -1973 - Roe v. Wade - written by Nixon appointee Blackmun • -1989 - Court upholds legality of flag burning, with help of two Reagan appointees: Kennedy and Scalia

48. Impact of Expanding Judicial Power on Presidency • Judicial activism has limited president's power • Courts are part of new iron triangle: bureaucracy, interest groups, courts • Court role = establishing rights (defined as moral/legal trumps); hard to object to since they are often seen as protecting the powerless • But the impact is to decrease presidential discretion, rival president in agenda setting, and contribute to single issue politics • All these make presidential leadership more difficult