The Judicial Branch
Today:
How does the judicial branch of government
work?
What is the role of the judicial branch in the
constitutional system?
Is the judiciary really the “least dangerous
branch” of government?
Types of courts
• State and Federal
• Federal:
– Constitutional courts
– Bankruptcy, military, tax courts
• Constitutional courts:
– Trial
• Civil and Criminal
– Appellate
– Supreme
How do cases get
to the Supreme Court?
• Screened by solicitor general & clerks
• Rules of access:
– Controversy
– Standing
– Mootness
• Writ of Certiorari
• Original jurisdiction
• Discretion
How do judges make decisions?
• Stare decisis: let the precedent stand
Powers of the judicial branch
• Constitution
What does the Constitution say?
• The judicial Power of the United States shall be
vested in one supreme Court, and in such
inferior Courts as the Congress may from time to
time ordain and establish”
• “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.”
Article III: Sections 1 and 2
Powers of the judicial branch
• Constitution
• Judicial Review: Marbury vs. Madison
• Historical influence
Checks and balances
The judiciary’s powers
• Can declare laws and
executive actions
unconstitutional
Checks on the judiciary
• Rules that limit standing
in federal courts
• No enforcement powers
• Shaped by Congress and
the president
• Congress affects size and
jurisdiction
The ‘Least Dangerous Branch’
• “The interpretation of the laws is the proper and
peculiar province of the courts…If there should
happen to be an irreconcileable variance
between [a law and the Constitution], that which
has the superior obligation and validity ought of
course to be preferred, or in other words, the
Constitution ought to be preferred to the statute,
the intention of the people to the intention of
their agents…This conclusion [does not imply] a
superiority of the judicial to the legislative power.
It only supposes that the power of the people is
superior to both…”
Hamilton, Federalist 78
The ‘Least Dangerous Branch’
• “The courts on the pretense of a repugnancy
may [not] substitute their own pleasure to the
constitutional intentions of the legislature. This
might as well happen in the case of the two
contradictory statutes…The courts must declare
the sense of the law; and if they should be
disposed to exercise WILL instead of
JUDGMENT, the consequence would equally be
the substitution of their pleasure to that of the
legislative body…”
Hamilton, Federalist 78
The ‘Least Dangerous Branch’?
• Judicial activism: Willingness to overturn
precedent and laws
• Judicial restraint: Deference to elected
representatives and precedent
In pairs:
Think of some examples of famous Supreme
Court cases. Did the Court make the right
decision, in your mind, in those cases? Did it do
so by overturning precedents and laws passed
by elected bodies, or by refusing to do so?
Do you think that judges should be guided by
judicial activism or judicial restraint? What are
the dangers of an unelected judiciary that is
happy to overturn laws and precedents? What
are the dangers of interpretation that always
defers to precedent?