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The Judiciary

Instructional Objectives

1 . Explain what judicial review is, and trace its origin in this country to Marbury v. Madison.

2. List and comment on the three eras of varying Supreme Court influences on national policy, from the days of slavery to the present.

3. Explain what is meant by a dual court system and describe the effects it has on how cases are handled and appealed.

4. List the various steps that cases go through to be appealed to the Supreme Court and explain the considerations involved at each level.

5. Discuss the dimensions of power exercised today by the Supreme Court and the opposing viewpoints on the desirability of activism by that court.

Text Outline

I. The American Judicial System

A. Only in the United States do judges play so large a role in policy-making - The policy-making potential of the federal judiciary is enormous. Woodrow Wilson once described the Supreme Court as a constitutional convention in continuous session.
1 . Judicial review: right of federal courts to rule on the constitutionality of laws and executive acts
a. Chief judicial weapon in system of checks and balances

2. In Britain, Parliament is supreme

3. In other countries, judicial review means little

a. Exceptions: Australia, Canada, Germany, India, and a few others

B. Debate is over how the Constitution should be interpreted

1. Strict constructionism: judges are bound by wording of Constitution

2. Activist (loose constructionism): judges should look to underlying principles of Constitution

3. Not a matter of liberal versus conservative

a. A judge can be both conservative and activist, or liberal and strict constructionist

b. Today: most activists tend to be liberal, most strict constructionists tend to be conservative

II. The development of the federal courts

A. Founders view
1. Most Founders probably expected judicial review but not playing so large a role in policy-making

2. Traditional view: judges find and apply existing law

3. Activist judges would later respond that judges make law

4. Traditional view made it easy for Founders to predict courts would be neutral and passive in public affairs

5. Hamilton: courts least dangerous branch

6. But federal judiciary evolved toward judicial activism

B. National supremacy and slavery: 1789-1861

1. McCulloch v. Maryland (1819): federal law declared supreme over state law

2. Interstate commerce clause is placed under the authority of federal law; conflicting state law void

3. Dred Scott v. Sandford (1857): Blacks were not, and could not become, free citizens of the U.S.; federal law (Missouri Compromise) prohibiting slavery in northern territories was unconstitutional

C. Government and the economy: Civil War to 1936

1. Dominant issue of the period: under what circumstances could the economy be regulated by state or federal governments

2. Private property held to be protected by the Fourteenth Amendment

3. Judicial activism-Supreme Court assessing the constitutionality of governmental regulation of business or labor

4. The Supreme Court unable to define reasonable regulation

5. The Court interprets the Fourteenth and Fifteenth amendments narrowly as applied to blacks-upheld segregation, excluded blacks from voting in many states

D. Government and political liberty: 1936 to the present

1. Court establishes tradition of deferring to the legislature in economic cases

2. Court shifts attention to personal liberties and is active in defining rights

3. Court-packing plan (FDR)

4. In the 1990s, some rulings in favor of state's rights


III. The structure of the federal courts

A. Two kinds of federal courts
1. Constitutional courts exercise judicial powers found in Article III
a. Judges serve during good behavior

b. Salaries not reduced while in office

c. Examples: District Courts (94), Courts of Appeals (12)

2. Legislative courts

a. Created by Congress for specialized purposes

b. Judges have fixed terms

c. Can be removed; no salary protection

d. Example: Court of Military Appeals

B. Selecting judges-all are nominated by president and confirmed by the Senate

1. Party background some effect on judicial behavior, but rulings are also shaped by other factors

2. Senatorial courtesy: judges must be approved by that state's senators, particularly for district courts

3. The litmus test

a. Presidential successes in selecting compatible judges

b. Concern this may downplay professional qualifications

c. Greatest impact on Supreme Court-no tradition of senatorial courtesy

IV. The jurisdiction of the federal courts

A. Dual court system

State courts are the real workhorses in the dual court system. In the early 1990s, state courts averaged about 90 million cases annually, compared with 270,000 in federal courts.

1. One state, one federal

2. Federal cases listed in Article III and Eleventh Amendment of Constitution

a. Federal-question cases: involving U.S. Constitution, federal law, treaties

b. Diversity cases: involving different states, or citizens of different states

3. Some cases can be tried in either court

a. Example: if both federal and state laws have been broken (dual sovereignty)

b. Justified: each government has right to enact laws and neither can block prosecution out of sympathy for the accused

4. State cases sometimes can be appealed to Supreme Court

B. Route to the Supreme Court

1. Most federal cases begin in district courts
a. Most are straightforward, do not lead to new public policy

2. Supreme Court picks the cases it wants to hear on appeal

a. Uses writ of certiorari (cert)

Other avenues exist for taking an appeal to the Supreme Court aside from the writ of certiorari. A "writ of certification" can be used when a U.S. Court of Appeals requests instructions from the Supreme Court on a point of law never before decided. A "writ of appeal" is available, in simple terms, when the constitutionality of a government action is in question or when a decision from a three-judge district court is appealed.

b. Requires agreement of four justices to hear case

c. Usually deals with significant federal or constitutional question

(1) Conflicting decisions by circuit courts

(2) Highest state court issues a ruling involving constitutional interpretation

d. Only 3 to 4 percent of appeals are granted certiorari

e. Others are left to lower courts

f. Results in diversity of constitutional interpretation among appeals courts

V. Getting to court

A. Deterrents
1. Court rejects over 95 percent of applications for certiorari

2. Costs of appeal are high

a. But these can be lowered by
(1) In forma pauperis: plaintiff indigent, with costs paid by government

(2) Indigent defendant in a criminal trial: legal counsel provided by government

(3) Payment by interest groups (e.g., American Civil Liberties Union)

b. Each party must pay its own way except for cases in which it is decided:

(1) that losing defendant will pay (fee shifting)

(2) Section 1983 suits

3. Standing: guidelines

a . Must be controversy between adversaries

b. Personal harm must be demonstrated

c. Being taxpayer not ordinarily entitlement for suit challenging federal government action

d . Sovereign immunity

B. Class-action suits

1. Brought on behalf of all similarly situated

2. Financial incentives to bring suit

3. In 1974, Supreme Court tightened rules on these suits

V I. The Supreme Court in action

A. Oral arguments by lawyers after briefs submitted
1. Each side has one half-hour, but justices can interrupt with questions

2. Role of solicitor general - decides what cases the federal government will appeal from lower courts and personally approves every case the government presents to the Supreme Court.

a. Often asked to submit amicus curiae. This brief is usually highly regarded by the court.

3. Amicus curiae briefs submitted if parties agree or Supreme Court grants permission

The Supreme Court must give its permission to accept an amicus brief. The Court is generous in its consent, taking 85 percent of all requests to file such briefs.

4. Many sources of influence on justices, e.g., law journals

B . Conference procedures

1. Role of chief justice: speaking first, voting last

2. Selection of opinion writer

3. Concurring and dissenting opinions

C. Voting patterns of the Court

1. 1960's - Liberal Activist Court - "The Warren Court" All the thos 60's landmark cases.

2. 1970s and 1980s

a. Liberal/activist bloc-Brennan, Marshall, Blackmun, Powell

b. Conservative/ strict constructionist bloc-Burger, Rehnquist, O'Connor

c. Swing bloc-White, Stevens

d. Liberals usually in minority; sometimes won by convincing swing bloc

3. Rehnquist Court still deeply divided in the 1990s

a. Liberals-Stevens, Ginsburg, Breyer

b. Conservatives-Rehnquist, Scalia, Thomas

c. Swing vote-Kennedy, Souter, O'Connor

4. Unity may be more notable than divisions-38.7 percent of opinions were unanimous in the 1995 term

VII. The power of the federal courts

A. The power to make policy
1. By interpretation of constitution or law

2. By extending reach of existing law

3. By designing remedies

B . Measures of power

1. Number of laws declared unconstitutional (over 120)

2. Number of prior cases overturned; not following stare decisis

3. Deference to the legislative branch (political questions)

4. Kinds of remedies imposed; judges go beyond what is narrowly required

5. Basis for sweeping orders either from Constitution or interpretation of federal laws

C. Views of judicial activism

1. Supporters
a. Courts should correct injustices when other branches or state governments refuse to do so

b. Courts are last resort

2. Critics

a. Judges lack expertise

b. Courts not accountable; judges not elected

3. Possible reasons for activism

a. Adversary culture

b. Easier to get standing in courts

D. Legislation and the courts

1. Laws and the Constitution are filled with vague language
a. Gives courts opportunity to design remedies

2. Federal government is increasingly on the defensive in court cases; laws induce litigation

3. The attitudes of federal judges affect their decisions

VIII. Checks on judicial power

A. Judges are not immune to politics or public opinion
1. Effects will vary from case to case
2. Decisions can be ignored
a. Examples: school prayer, school desegregation

b. Usually if wrongful act is not highly visible and actor is willing to risk charges

B. Congress and the courts

1. Confirmation and impeachment proceedings gradually alter composition of courts

2. Changing the number of judges, giving president more or less appointment opportunities

The number of justices sitting on the Supreme Court is determined by Congress. The current number of nine justices was established in 1869. However, the membership of the Court has ranged from five to ten justices.

3. Revising legislation declared unconstitutional

4. Altering jurisdiction of the courts and restricting remedies

5. Constitutional amendment - According to Henry Abraham, six constitutional amendments have been adopted specifically to alter decisions by the Supreme Court.

C. Public opinion and the courts

1. Defying public opinion frontally is dangerous, especially elite opinion

2. Opinion in realigning eras may energize court

3. Public confidence in court since 1966 has varied

D. Reasons for increased activism

1. Growth of government

2. Activist ethos of judges


Important Terms

activist approach An approach to judicial review which holds that 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.

amicus curiae A Latin term meaning "friend of the court." Refers to interested groups or individuals, not directly involved in a suit, who may file legal briefs or oral arguments in support of one side.

brief A legal document submitted by lawyers to courts. It sets forth the facts of a case, summarizes any lower court decisions on the case, gives the arguments for the side represented by the lawyer filing the brief, and discusses decisions in other cases that bear on the issue.

civil law Rules defining relationships among private citizens.

class-action suit A case brought into court by a person on behalf of not only himself or herself but all other persons in similar circumstances. The Supreme Court in 1974 tightened rules on these suits to only those authorized by Congress and those in which each ascertainable member of the class is individually notified if money damages are sought.

concurring opinion An opinion by one or more justices who agree with the majority's conclusion but for different reasons that they wish to express.

conservative/strict constructionist bloc One of three groups of justices in the 1970s and 1980s, including Chief justice Warren Burger, who took a consistently conservative position on issues.

constitutional court Lower federal courts created by Congress which exercise the judicial powers delineated in Article III of the Constitution. Its judges, therefore, enjoy two constitutional protections-they serve "during good behavior" and their salaries may not be reduced while in office.

courts of appeals The federal courts that have the authority to review decisions by federal district courts, regulatory commissions, and certain other federal courts. Such courts have no original jurisdiction; they can hear only appeals.

criminal law A body of rules defining offenses that are considered to be offenses against society as a whole and for which conviction could result in a prison term.

dissenting opinion The opinion of the justices on the losing side.

district courts The lowest federal courts where federal cases begin. They are the only federal courts where trials are held.

diversity cases Jurisdiction conferred by the Constitution on federal courts to hear cases involving citizens of different states. The matter, however, must involve more than $50,000, and even then the parties have the option of commencing the suit in state court.

dual sovereignty A doctrine holding that state and federal authorities can prosecute the same person for the same conduct, each authority prosecuting under its own law.

federal-question cases Jurisdiction conferred by the Constitution on federal courts to hear all cases "arising under the Constitution, the laws of the United States, and treaties."

fee shifting A practice that enables plaintiffs to collect their costs from a defendant if the defendant loses. The Supreme Court has limited fee shifting to cases in which it is authorized by statute.

in forma pauperis A petition filed with the U.S. Supreme Court by an indigent person. The normal $300 filing fee is waived for such petitions.

judicial review The right of 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.

legislative court A lower federal court created by Congress for specialized purposes. These justices have fixed terms of office, can be removed from office, and may have their salaries reduced while in office.

liberal/activist bloc One of three groups of justices in the 1970s and 1980s, led by Justice William Brennan, who took a consistently liberal position on issues. It was usually in the minority.

litmus test A test of ideological purity used by recent presidents in selecting and senators in confirming judges to nominate to federal courts.

Marbury v. Madison A decision of the Supreme Court written by Chief justice John Marshall in 1803 which interpreted the Constitution as giving the Supreme Court the power to declare an act of Congress unconstitutional. This decision is the foundation of the federal judiciary's power of judicial review.

McCulloch v. Maryland A decision of the Supreme Court written by Chief justice John Marshall in 1819 which held that the power of the federal government flows from the people and should be generously construed so that any laws "necessary and proper" to the attainment of constitutional ends are permissible, and that federal law is supreme over state law even to the point that the state may not tax an enterprise (such as a bank) created by the federal government.

opinion of the Court An opinion by the Supreme Court that reflects the majority's view.

per curiam opinion A brief and unsigned opinion by the Supreme Court.

plaintiff The party that initiates a suit in law.

political question An issue that the Court refuses to consider because it believes the Constitution has left it entirely to another branch to decide. Its view of such issues may change over time, however.

remedy A judicial order setting forth what must be done to correct a situation a judge believes to be wrong.

Section 1983 case A provision in the U.S. Code which allows a citizen to sue state and local government officials who have deprived the citizen of some constitutional right or withheld some benefit to which the citizen is entitled. If the citizen wins, he or she can collect money damages and lawyers' fees from the goverrunent.

senatorial courtesy The tradition by which the Senate will not confirm a district court judge if the senator who is from that state and of the president's party objects.

solicitor general The third-ranking officer in the Justice Department, who decides what cases the federal government will appeal from lower courts and personally approves every case the government presents to the Supreme Court.

sovereign immunity A legal concept that forbids a person from suing the government without its consent. Congress has given its consent for the government to be sued in many cases involving disputes over contracts or damage done as a result of negligence.

standing A legal concept that refers to who is entitled to bring a case. Three basic rules govern standing. First, there must be an actual controversy between real adversaries. Second, the person bringing suit must show that he or she has been harmed by the law or practice involved in the complaint. Third, merely being a taxpayer does not entitle a person to challenge the constitutionality of a governmental. action.

stare decisis An informal rule of judicial decision making in which judges try to follow precedent in deciding cases. That is, a court case today should be settled in accordance with prior decisions on similar cases.

strict constructionist approach An approach to judicial review which holds that judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution.

Supreme Court of the United States The highest court in the federal judiciary specifically created by the Constitution. It is composed of nine justices and has appellate jurisdiction over lower federal courts and the highest state courts. It also possesses a limited original jurisdiction.

swing bloc One of three groups of justices in the 1970s and 1980s that vacillated between liberal and conservative voting positions.

writ of certiorari An order issued by the Supreme Court granting a hearing to an appeal. A vote of four justices is needed to issue the writ. Only about 3 or 4 percent of all appeals are accepted.

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