THE JUDICIARY

1
CHAPTER 16
THE JUDICIARY
PAGES 438-466
2
THE JUDICIARY

• In the United States the selection of a judge
  produces a dramatic and bitter conflict because
• Only in the United States do judges play so large
  a role in making public policy

3
THE JUDICIARY

• JUDICIAL REVIEW
• The right of the federal courts to declare laws
  of Congress and acts of the executive branch void
  and unenforceable if they are judged to be in
  conflict with the Constitution
• Since 1789 the Supreme Court has declared over
  160 federal laws to be unconstitutional

4
THE JUDICIARY

• JUDICIAL REVIEW
• Judicial review is the federal courts chief
  weapon in the system of checks and balances on
  which the American Government is based

5
THE JUDICIARY

• Two competing views about the Judiciary
• Strict-constructionist approach judges should
  only judge that is, they should confine
  themselves to applying those rules are stated in
  or clearly implied by the language of the
  Constitution

6
THE JUDICIARY

• Activist approach judges should discover the
  general principles underlying the Constitution
  and its often vague language, amplify those
  principles on the basis of some moral or economic
  philosophy, and apply them to cases
• Means read in-between the lines of the
  Constitution

7
THE JUDICIARY

• Seventy years ago judicial activists tended to be
  conservatives and strict-constructionist judges
  tended to be liberals today the opposite is true

8
THE DEVELOPMENT OF THE FEDERAL COURTS
PAGES 439-445
9
THE DEVELOPMENT OF THE FEDERAL COURTS

• Supreme Court has been shaped by the political,
  economic, and ideological forces of three
  historical eras
• 1787-1865 nation building, the legitimacy of
  the federal gov., and slavery
• 1865-1937 relationship between government and
  the economy
• 1938 present personal liberty and social
  equality and the potential conflict between the
  two

10
NATIONAL SUPREMACY AND SLAVERY
PAGES 441-442
11
THE DEVELOPMENT OF THE FEDERAL COURTS

• CHIEF JUSTICE JOHN MARSHALL
• He stated that, national law was in all
  instances the dominant law, with state law having
  to give way, and that the Supreme Court had the
  power to decide what the Constitution meant.

12
THE DEVELOPMENT OF THE FEDERAL COURTS

• TWO CASES OF ENORMOUS IMPORTANCE
• Marbury v. Madison (1803)
• McCulloch v. Maryland (1819)
• These decisions which were written by Marshall,
  held that the Supreme Court could declare an act
  of Congress unconstitutional that the power
  granted by the Constitution to the federal
  government flows from the people and thus should
  be generously construed (and thus any federal
  laws that are necessary and proper to the
  attainment of constitutional ends are
  permissible) and that federal law is supreme
  over state law

13
THE DEVELOPMENT OF THE FEDERAL COURTS

• Dred Scott Case
• Chief Justice Roger B. Taney
• Dred Scott, a slave, was taken to a territory
  which is St. Paul, Minnesota, where slavery was
  illegal under Federal Law
• Scott claimed that since he had resided in a free
  territory he was now a free man
• Chief Justice Taney held that African-Americans
  were not US Citizens and could not become so, and
  that the federal law The Missouri Compromise
  which prohibited slavery in the Northern
  Territories was unconstitutional
• The public outcry against this move was enormous,
  and the Court and Taney were discredited in the
  North

14
GOVERNMENT THE ECONOMY
PAGES 442-443
15
GOVERNMENT THE ECONOMY

• The dominant issue the Supreme Court faced was
  deciding when the economy would be regulated by
  the states and when it would be regulated by the
  federal government
• Government Regulation
• Force railroads to improve their safety
• The regulation of wages and work hours

16
GOVERNMENT THE ECONOMY

• When it came to government regulation in the
  economy the dominant issue was property
  (REASONABLE v. UNREASONABALE GOVERNMENT
  REGULATION)
• 14th Amendment adopted in 1868 primarily to
  protect African American claims to citizenship
  from hostile state action, also protected private
  property and the corporation from unreasonable
  state action
• No state shall, deprive any person of life, or
  property, without due process of law
• PERSON IS ALSO A FIRM OR A CORPORATION

17
GOVERNMENT POLITICAL LIBERTY
18
GOVERNMENT POLITICAL LIBERTY

• Supreme Court set up to protect the rights and
  liberties of citizens from governmental trespass

19
THE REVIVAL OF STATE SOVEREIGNTY
20
THE REVIVAL OF STATE SOVEREIGNTY

• For many decades the Supreme Court allowed
  Congress to pass laws no matter how it affected
  the states
• Since 1992 the Supreme Court has restored the
  view that states have the right to resist some
  forms of federal action

21
STRUCTURE OF THE FEDERAL COURTS
22
STRUCTURE OF THE FEDERAL COURTS

• The only federal court that the Constitution
  requires is the Supreme Court (Article III)
• All other federal courts and their jurisdictions
  were created by Congress
• Constitution does not say how many Supreme Court
  Justices there should be
• There are 9 Supreme Court Justices today
• 8 associate justices and 1 Chief Justice (John G.
  Roberts Jr.)

23
STRUCTURE OF THE FEDERAL COURTS

• Two kinds of lower federal courts that handle
  cases that do not have to be decided by the
  Supreme Court
• Constitutional Court
• Legislative Court

24
STRUCTURE OF THE FEDERAL COURTS

• CONSTITUTIONAL COURTS
• Are courts that exercise the judicial powers
  found in Article III of the Constitution, and
  therefore its judges are given Constitutional
  protection cannot be fired, nor their salaries
  reduced while in office
• District Courts most important of the
  constitutional courts there are 94 and each
  state is guaranteed at least one
• Court of Appeals One in each of the eleven
  regions, or districts, plus one in the District
  of Columbia

25
STRUCTURE OF THE FEDERAL COURTS

• Legislative Courts
• Set up by Congress for some specialized purpose
  and staffed with people who have fixed terms of
  office and can be removed or have their salaries
  reduced
• Example Court of Military Appeals

26
STRUCTURE OF THE FEDERAL COURTS

• SELECTING JUDGES
• Judges who are Democrat are more likely to make
  liberal decisions (favor civil rights, favor a
  criminal defendant, or economic regulation)
• Judges who are Republican are more likely to make
  conservative decisions
• Just because a president chooses a Supreme Court
  Justice does not mean that Justice will always
  act in accordance with the president that
  appointed him or her

27
STRUCTURE OF THE FEDERAL COURTS

• SELECTING JUDGES
• SENATORIAL COURTESY
• In theory the president nominates a qualified
  person to be a judge, and the Senate approves or
  rejects the nomination based on those
  qualifications.
• Senatorial courtesy gives heavy weight to the
  preferences of the senators from the state where
  a federal district judge is to serve
• Ordinarily the Senate will not confirm a district
  court judge if the senior senator from the state
  where the district is located objects
• Senator can exercise veto power of a judge by use
  of a blue slip is a piece of paper on which
  the senator is asked to record his or her view on
  a nominee. This usually results in killing the
  nomination

28
STRUCTURE OF THE FEDERAL COURTS

• It seems as if the Senator has more say than the
  president
• This is not common with Supreme Court Justices

29
STRUCTURE OF THE FEDERAL COURTS

• THE LITMUS TEST
• Test of ideological purity when selecting a
  Supreme Court Justice

30
THE JURISDICTION OF THE FEDERAL COURTS
PAGES 448-451
31
THE JURISDICTION OF THE FEDERAL COURTS

• Dual Court System
• State Courts
• Federal Courts
• What kind of cases do federal courts hear, and
  how does a case beginning in the the state courts
  end up before the Supreme Court

32
THE JURISDICTION OF THE FEDERAL COURTS

• The Constitution lists the kinds of cases over
  which federal courts have jurisdiction (figure
  16.2 page 449)
• Are found in Article III and the 11th Amendment
  of the Constitution
• All other matters are left to the state courts

33
THE JURISDICTION OF THE FEDERAL COURTS

• Federal-Question Cases
• Cases that are arising under the Constitution,
  the laws of the United States, and treaties.
• These are cases that the Federal Courts can hear
  because it is specifically stated in the
  Constitution

34
THE JURISDICTION OF THE FEDERAL COURTS

• Diversity Cases
• California and Arizona sue each other over which
  state is to use how much water from the Colorado
  River the case can only be heard by the Supreme
  Court

35
THE JURISDICTION OF THE FEDERAL COURTS

• Cases heard in either federal or state courts
• Example if citizens from two different states
  want to sue each other and the matter involves
  more than 75,000, they can either use a federal
  or state court
• Someone robs a federally insured bank, he or she
  has broken both state and federal laws and thus
  can be prosecuted in state or federal court, or
  both

36
THE JURISDICTION OF THE FEDERAL COURTS

• Dual Sovereignty Doctrine
• State and Federal authorities can prosecute the
  same person for the same conduct
• Lynching's in the South the Southern, State
  Courts, were sympathetic to the Whites
• In the absence of dual sovereignty would have
  meant that an acquittal in state court would have
  barred federal prosecution

37
THE JURISDICTION OF THE FEDERAL COURTS

• Federal judges can overturn state court rulings
  even when they had no jurisdiction over the
  original matter
• Vast majority of all cases heard by federal
  courts begin in the district courts

38
THE JURISDICTION OF THE FEDERAL COURTS

• Clarence Earl Gideon
• Wrote an appeal in pencil on prison stationery
  and sent it to the Supreme Court which now
  required accused persons to supplied with a
  lawyer, free if necessary (in a criminal Case)
• If not a criminal case an interest group are
  sometimes willing to take up the cause if the
  issue in the case seems important
• Example ACLU if person believes their
  liberties have been denied

39
THE JURISDICTION OF THE FEDERAL COURTS

• Writ of certiorari (cert)
• Court considers all the petitions it receives to
  review lower-court decisions. IF FOUR justices
  agree to hear a case, a CERT is issued and the
  case is scheduled for a hearing

40
THE JURISDICTION OF THE FEDERAL COURTS

• Writ of certiorari (cert) if meets TWO
  requirements
• Two or more federal circuit courts of appeals
  have decided the same issue in different ways
• The highest court in the state has held a federal
  or state law to be in violation of the
  Constitution or has upheld a state law against
  the claim that it is in violation of the
  Constitution
• Supreme Court only review about 1 or 2 percent of
  appeals court case rejects 96 of the
  applications for CERT

41
GETTING TO COURT
42
GETTING TO COURT

• Can be expensive
• Apply for CERT costs 300 and you must supply 40
  copies of the petition.
• If you are indigent without funds you can
  file and be heard as a pauper (in forma pauperis)
  for nothing
• About half the petitions arriving before the
  Supreme Court happen this way

43
GETTING TO COURT

• FEE SHIFTING a rule that allows a plaintiff (the
  party that initiates the a lawsuit) to recover
  costs from the defendant if the plaintiff wins
  the case
• Section 1983 of Chapter 42 of the United States
  Code allows a citizen to sue a state or local
  government official police officer or
  superintendent of a school who has deprived the
  citizen of some constitutional right.
• If the citizen wins, he or she can collect money
  damages and lawyers fees from the government

44
GETTING TO COURT

• STANDING a legal rule stating who is authorized
  to start a lawsuit
• Here are three rules that govern STANDINGS
• There must be an actual controversy between real
  adversaries
• You must show that you have been harmed by the
  law or practice about which you are complaining
• Merely being a taxpayer does not ordinarily
  entitle you to challenge

45
GETTING TO COURT

• Sovereign Immunity the rule that a citizen
  cannot sue the government without the
  governments consent
• You can sue a government official

46
GETTING TO COURT

• CLASS-ACTION SUITS a case brought by someone to
  help him or her and all others (who are not in
  court) who are similarly situated
• Brown v. Topeka, Kansas
• She was denied to go to a school because they
  were segregated but she was protected under the
  14th Amendment

47
SUPREME COURT IN ACTION
PAGES 454-456
48
SUPREME COURT IN ACTION

• Court is in session for 36 weeks out of each year
  from early October until the end of June

49
SUPREME COURT IN ACTION

• How a case gets to the Supreme Court
• Cert must be issued
• Brief must be submitted where an attorney
  summarizes a case and the laws and rulings that
  support it
• Lawyers present case to Court but are only
  allowed 15 minutes

50
SUPREME COURT IN ACTION

• Supreme Courts top Trial Lawyer is the Solicitor
  General
• Solicitor General decides what cases the
  government will appeal from lower courts and
  personally approves every case the government
  presents to the Supreme Court

51
SUPREME COURT IN ACTION

• The justices retire every Friday to their
  conference room, where in complete secrecy they
  debate the cases they have heard.
• The chief justice speaks first, followed by the
  other justices in order of seniority
• After the arguments the justices vote and the
  newest justices vote first, and the chief justice
  votes last
• By this process the chief justice can yield great
  influence

52
SUPREME COURT IN ACTION

• DECIDING A CASE
• If there is a tie, the lower court decision is
  left standing. Even though there are 9 justices
  a tie can happen if one is ill or disqualifies
  himself or herself because of prior involvement
  in the case
• If all justices are present and there is a tie,
  the chief justice casts the last vote

53
SUPREME COURT IN ACTION

• By tradition the Court usually issues a written
  opinion explaining its decision
• Per curiam opinion when the opinion brief is
  short and unsigned
• If the chief justice is in the majority, he will
  either write the opinion or assign the task to a
  justice who agrees with him
• If the chief justice is in the minority, the
  senior justice on the winning side will decide
  who writes the Courts opinion

54
SUPREME COURT IN ACTION

• THREE KINDS OF OPINIONS
• Opinion of the Court reflects the majoritys
  view
• Concurring opinion an opinion by one or more
  justices who agree with the majoritys
  conclusions
• Dissenting opinion the opinion of the justices
  on the losing side
• MOST IMPORTANT IS NOT THE DECISION BUT THE
  REASONS BEHIND THE DECISION

55
THE POWER OF THE FEDERAL COURTS
PAGES 456-460
56
THE POWER OF THE FEDERAL COURTS

• THE POWER TO MAKE POLICY
• The courts make policy whenever they reinterpret
  the law or the Constitution in significant ways
• One measure of power is the fact that more than
  160 federal laws have been declared
  unconstitutional

57
THE POWER OF THE FEDERAL COURTS

• THE POWER TO MAKE POLICY
• Stare decisis let the decision stand. It is
  the principle of a precedent a court case today
  should be settled in accordance with prior
  decisions on similar cases

58
THE POWER OF THE FEDERAL COURTS

• TWO REASONS WHY PRECEDENT IS IMPORTANT
• If the meaning of the law continually changes, if
  the decisions of judges become wholly
  unpredictable, then human affairs affected by
  those laws and decisions become chaotic
• If the principle of equal justice means anything,
  it means that similar cases should be decided in
  a similar manner

59
THE POWER OF THE FEDERAL COURTS

• Supreme Court is now determining cases that it
  once left to the legislature (political question
  was a matter that the Constitution left
  entirely to another branch of government)
• Example now court hears cases about the size of
  congressional districts which it did not do before

60
THE POWER OF THE FEDERAL COURTS

• Most powerful indicator of judicial power can be
  found in what is called a REMEDY a judicial
  order setting forth what must be done to correct
  a situation that a judge believes to be wrong
• Example a person who feels that they were
  unjustly denied welfare may sue the court to get
  money, and the court order will in all likelihood
  affect ALL welfare recipients

61
VIEWS OF JUDICIAL ACTIVISM
PAGES 459-460
62
VIEWS OF JUDICIAL ACTIVISM

• SUPPORTERS OF JUDICIAL ACTIVISM STATE
• The federal courts must correct injustices when
  the other branches of the federal government, or
  the states, refuse to do so
• Example if the Supreme Court did not declare
  segregation unconstitutional in 1954, it may
  still exist today

63
VIEWS OF JUDICIAL ACTIVISM

• CRITICS OF JUDICIAL ACTIVISM
• They say judges have no expertise in matters of
  school administration, prison management,
  environmental protection, and so on

64
LEGISLATION AND THE COURTS
PAGE 460
65
LEGISLATION AND THE COURTS

• Law must be sufficiently vague to permit judges
  wide latitude in interpreting the law.
• Example Various civil rights acts outlaw
  discrimination but do not say how one is to know
  whether discrimination has occurred here the
  courts decide

66
CHECKS ON JUDICIAL POWER
PAGES 460-464
67
CHECKS ON JUDICIAL POWER

• A judge has no police force or army decisions
  that a judge makes can sometimes be resisted or
  ignored
• Example - (court declared segregation in schools
  unconstitutional, many schools still remained
  segregated)

68
CONGRESS AND THE COURTS
69
CONGRESS AND THE COURTS

• CONGRESS CHECKS COURTS
• Appointments
• Impeachment
• Alter number of judges in federal courts not just
  Supreme Court
• These are some examples of how Congress can have
  power over the federal courts

70
PUBLIC OPINION AND THE COURTS
PAGES 463-464
71
PUBLIC OPINION AND THE COURTS

• The Supreme Court follows election returns, it is
  nonetheless true that the Court is sensitive to
  certain bodies opinions
• Especially the elites liberal or conservative
• Changing political moods affect the kinds of
  remedies that the judges will think appropriate

72
GROWTH OF COURT ACTIVISM

• BECAUSE
• Growth in the size and scope of the government as
  a whole
• Courts have come to play a larger role in our
  lives because Congress, the bureaucracy, and the
  president have come to play larger roles

73
THE END