AP Gov. Exam Review
Judiciary
Session 7
Major Themes (5):
1.
2.
3.
4.
5.
The federal courts have evolved into a key institution that makes public policy
The selection of federal judges is a very political process
A very limited number of cases are heard by federal courts, even fewer by the SC
The current debate is over judicial activism vs. judicial restraint
The court has to rely on other branches for implementation
Judicial Philosophy
Term, idea, concept etc.
Definition or examples
Here’s why it’s important:
Original intent
Theory of going back to what the framers of the
U.S. Constitution originally intended
Conservative viewpoint, at the core of
judicial restraint, no right to privacy or
right to abortion according to OI,
“constitution isn’t meant to be changed,
meant to impede change”- Justice Scalia
***Judicial restraint***
—a court that maintains the status quo or mirrors
what the other branches of
government have established as current policy.
Court has taken a turn to the right in the last
20 years
Strict construction
A strict or literal interpretation of the
Constitution, goes along with original intent
Position favored by conservatives
AP Gov. Exam Review
***Judicial activism***
Judiciary
Session 7
—a philosophy of judicial review that results in
decisions that overturn precedent. Judging what
the Constitution meant according to the times.
culture, background of judges
Controversial. Judges seen as “legislating
from the bench” Going beyond the
Constitution to make radical changes
based on what judges see fit. Favored by
liberals. Dominated the Warren Court
Dual court system
Federal and state court systems. All paths can
lead to the U.S. Supreme Court.
Footprint of federalism on the judicial
branch.
Trial courts
Courts of original jurisdiction. Lowest level.
Most cases are plea bargained and never
go to trial.
Original jurisdiction
Courts where the case is heard for the first time.
SC can have original jurisdiction in a few
cases: states suing other states, citizen of
one state suing another state, suit against
the federal government, ambassadors
Appellate jurisdiction
Weakness of the court. Cases have to be
Weakness of the court. Keeps the court in
brought to the Court rather than the Court going check by limiting its power. SC can have
out and finding cases.
original jurisdiction in a few cases. Don’t
review facts but to see if there are legal
issues involved
Structure of Court
AP Gov. Exam Review
Judiciary
Session 7
District Courts
94 nation wide. first step in going up the ladder
to the supreme court.
Circuit Courts
13 of these. only has appellate jurisdiction. 2nd
step on the way to the supreme court.
Justiciable disputes
Case must be settled on a basis of law rather
than policy.
If it can be solved in the legislative body
(policy) that it doesn’t belong in the courts
Standing to sue
Parties or plaintiffs must have a serious interest
in a case.
Must prove substantial injury.
Class action lawsuits
Lawsuits permitting a small number of people to
sue on half of other people similarly situated
Makes it easier for “the little guy”
Only federal courts where trials are held
The Supreme Court (3 eras)
1789 to 1861- National supremancy and slavery. Four major cases from this era. Marbury, McCulloch, Gibbons and Dred. Where did ultimate power in the
United States lie, the state or the national government?
1865 to 1936- Governemnt and the economy, dominant issue is how would the economy be regulated. States or national government? Upheld use of
injunctions, etc. some safety regulations. Conservative period.
1936 to present- Government and political liberty. Court now defers to the legislature for the economy. Really takes off with Warren Court. Move to the right
within the past 15-20 years.
Federalist No. 78
Madison- the courts are the least dangerous
branch to liberty. they have neither the sword
nor the purse. argues in favor of lifetime
appointments.
Judges and SC justices are supposed to be
above politics and have the freedom to
make legally correct, but possibly
unpopular decisions, i.e. Brown v. Board
AP Gov. Exam Review
Judiciary
Session 7
“Rule of Four”
Four out of the nine justices must agree to hear
a case
Majority opinion
The statement of legal reasoning of the majority
of justices deciding in a case
Concurring opinion
Those who support the majority opinion, but not
necessarily for the same reason
Dissenting opinion
Those who disagree with the majority opinion
Solicitor General
The government’s attorney before the Supreme
Court.
Sometimes referred to as the “10th
justice”
Political questions
Doctrine developed by the federal courts to
avoid deciding some cases, principally conflicts
between the congress and president
Refer to Federalist No. 78. Independent judiciary
Statutory construction
Ability of the court to strike down parts of laws
(statutes)
In some cases where statutory construction in an issue,
Congress passes new legislation to clarify an existing law
Judicial implementation
See Federalist No. 78
This is the courts greatest weakness. It must rely on the
other two branches. See Brown v. Board. Ike had to call
out the National Guard to enforce the court’s decision to
integrate Central High School
Precedent
Prevents a “tyranny of the majority” on
the SC
AP Gov. Exam Review
Judiciary
Session 7
Appointment Process and Politics of the Court
Senatorial courtesy
Unwritten tradition that gives a Senator the
ability to block a federal judge in their state
Lower Court judges. Not SC. Doesn’t need written
documentation.
Appointment process
Judiciary committee
Appointed by president and confirmed by the Senate for
both lower and Supreme Court Justices. VERY political.
After failed Bork confirmation of ’87, nominees tread
carefully before the Senate Judiciary Committee
“Litmus test”
Asking a judge where they stand on a particular
issue (abortion, affirmative action, gun control
etc.) before they are confirmed by the Senate
Judges are prone to downplay their personal views and
past decisions when being confirmed. Once confirmed,
they have more freedom on the bench.
Vetting process
Pres. will create a “short list” of nominees for
the bench when a vacancy opens, a justice
retires or dies
Names often leaked to see what kind of reaction there is
(trial balloon) some names are vetted and don’t make it.
Harriet Myers in 2005.
Collegial Court concept
The court operates professionally on their cases.
Justices don’t speak out against one another in
public. Dissents are written carefully with clear
rhetoric rather than personal attacks against
justices.
AP Gov. Exam Review
Judiciary
Session 7
Latin 101
Amicus curiae briefs
“Friend of the court” briefings. Third parties can
file briefs on behalf of a plaintiff.
Outside information. Often times the SC looks at
numerous amicus briefs filed for a case. Expert opinion.
Stare decisis
Let the decision stand
Most justices will not overturn precedent on the
bench. key factor in confirmation process: adhering to
precedent
Writ of certiorari
Ability of the SC to call up a case from a lower
court.
Mainly legal issues. Not the facts of a case. Justices
hold cert conferences to go over the petitions from the
parties involved in lower court cases. Kind of like a
fastrack
Writ of mandamus
Compels a public official to perform a ministerial
act to perform mandatory duties correctly
Often a distractor answer
Four Most Recent Supreme Courts
Court and Years
Warren- 1953 to 1969
Activist or Restraint?
Very activist. Liberal court. Break
from the past
Rights of criminal defendants
Personal liberties
Landmark cases
The Big Six:
Miranda
Gideon
Mapp
Engel
Gideon
Griswold
AP Gov. Exam Review
Judiciary
Session 7
Burger- 1960 to 1986
Burger more conservative but court
hands down the most “activist” ruling
in the eyes of conservatives, Roe v.
Wade
Roe
Craig v. Boren
N.Y. Times v. U.S.
U.C. Davis v. Bakke
Rhenquist- 1986 to 2005
Restraint. Rhenquist argued for a
return of power to the states under
th
the 10 amendment
U.S. v. Lopez
Roberts- 2005 to present
Restraint. Conservative and liberal
split with one moderate. Roberts
confirmed as a moderate but critics
argue he cloaked his conservative
credentials during confirmation
Kelo v. City of New London
Citizens United v. FEC