Ch. 16 – The Judiciary

Introduction:
 power of judicial review :
A.
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Two views of interpreting the Constitution:
Judicial restraint:
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Judicial activism:
Does NOT mean political liberals are liberal constructionists and political conservatives are strict constructionists.

A.
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1.
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Three Historical Eras in the Evolution of the Federal Courts
Founders’ view:
Judges interpret the law and do not make policy
Federalist 78 (Hamilton) argued that the Courts were the least dangerous branch, although the federal judiciary has evolved towards judicial activism
Era 1: National Supremacy and Slavery (1787-1865)
Marshall Court
Marbury vs. Madison, 1803
McCulloch vs. Maryland, 1819
Gibbons v. Ogden, 1824
Chief Justice Taney and the Dred Scott decision (1857)

3.
4.
1.
2.
Era 2: Government and the
Economy (1865-1937)
Era 3: Government and Political
Liberty (1938-present)
Conflict
Private property rights
Judicial activism emerged
Both the 14 th and 15 th
Amendments were narrowly applied to blacks
1.
2.
3.
personal liberties and becomes active in defining rights
1990s: shift to state sovereignty; limits on supremacy of the federal government
US v. Lopez, 1995


Only the ________is created by the Constitution (Article ??)
A. Congress created 2 types of lower federal courts:
1.

Constitutional courts (“regular”)
Supreme Court and also gives Congress the power to create
“inferior” (lower) federal courts.
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Judges in these courts hold life terms.
Three levels of constitutional courts:

2.
3.
4.
5.
6.
7.
8.
1.
Federal trial courts in which 90% of the federal cases are heard
Created
There are ?? district courts and ??? judges presiding
Cases are tried by ?????
Use grand juries to issue indictments , but a petit jury decides outcome
Jurisdiction:
May try 3 types of cases:
Decisions may be appealed to:

1.
2.
3.
4.
5.
Created by Congress in 1891 to relieve the Supreme Court’s docket of appeals from district courts
?? courts of appeals: ?? judicial circuits plus ??
?? judges on the circuit plus 1
Supreme Court justice assigned to each of the appellate courts
Cases are usually heard by a panel of 3 judges, except when
“ en banc ” _________
Jurisdiction:

2. Legislative (“special”) courts, also called Article I courts:
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Created to ____________________
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Judges in these courts hold _______
Examples:

1.
2.
3.
4.
Appointed by the president with the “advice and consent” of the
Senate.
Article III states they shall hold their offices
They can be impeached and removed by Congress
Compensation
2010: District Court - $174,000
Courts of Appeals -
$184,500
Supreme Court - $213,900
(C.J. $223,500)

1.
2.
3.
4.
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6.
7.
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Senatorial Courtesy
Senate Judiciary Committee
Senate:
Political party
Diversity:
Age:
Presidential influence continues then, even after they leave office
Ideology:
Presidents try to appoint people of similar philosophy .
8.
9.
10.
ABA
“paper trail”
Number of judges:
Nominations to know:
1.
Bork
2.
3.
4.
Thomas
Souter
Miers

Presidential Appointees to the Federal Judiciary
120
100
80
60
40
20
0
Carter Reagan
President
Bush
White Appointees
Hispanic Appointees
Clinton
Black Appointees
Female Appointees

1.
Attorney General :
1.
Solicitor General:
2.
U.S. Attorneys:

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1.
2.
Dual system of courts: federal and state courts, reflective of federalism
Jurisdiction is
Federal courts hear cases based on:
•
Subject matter (federal-question cases): (3 types)
•
Parties involved (diversity cases): (5 types)
3.
All cases not heard by the federal courts are heard in States’ courts

3.
4.
5.
1.
2.
Exclusive Jurisdiction:
Concurrent Jurisdiction:
Original Jurisdiction:
Appellate Jurisdiction:
Supreme Court can exercise both original and appellate jurisdiction

A.
B.
1)
2)
3)
4)
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Only those with standing may challenge a law or government action.
Types of law:
Statutory:
Common:
Based on a system of unwritten law
Unwritten laws are based on precedents.
stare decisis
Criminal:
Civil:
Writ of mandamus , injunctions , class action lawsuits, breach of contract, slander

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1.
2.
3.
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A. Background
Only court mentioned in the
Constitution
8 associate justices, 1 Chief Justice
Set by Congress
Key powers:
Judicial review (Marbury)
Power to overrule earlier S.C. decisions
B. Jurisdiction
1.
______ , in cases involving:
2.
Appellate , in cases from
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Cases from appellate jurisdiction are far more numerous than from original jurisdiction

4.
5.
6.
1.
2.
3.
SCOTUS controls its own docket
Thousands of requests are made, relatively few are granted
Rule of 4: writ of certiorari attorneys’ briefs per curiam

Supreme Court Caseload
12000
10000
9608
8965
8000
6000
5746
5144
4212
4000
2000
0
1940
150 158 152 146 87 88
1960-61 1970-71 1980-81 1990-91 2000-01 2005-06
Year
Cases Appealed Cases Decided

Types of Cases Heard by the Supreme Court, 1999-
2000 Term
State criminal cases Original
3% jurisdiction
Civil actions from state courts
8%
Federal criminal and habeas corpus cases
27%
1%
Civil actions from lower federal courts
61%

3.
4.
1.
2.
5.
Terms:
Hear cases
Oral Arguments:
Briefs, amicus curiae can also be filed
Friday Conferences:

6. Types of Opinions :
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Unanimous
Majority opinion
Dissenting opinion
Concurring opinions
7. Assigning and Politics of
Opinions
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Assigning the opinion is a key power of the CJ –
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Opinion must structure the argument so as to keep the support of at least 4 other justices

Liberals:
1. Elena Kagan (Obama, 2010, 50)
2. Ruth Bader Ginsburg (Clinton, 1993,
77)
3. Stephen Breyer (Clinton, 1994, 72)
4. Sonia Sotomayor, (Obama, 2009, 56)
Conservatives:
1. John Roberts (Bush 43, 2005, 56)
2. Antonin Scalia (Reagan, 1986, 74)
3. Clarence Thomas (Bush 41, 1991, 62)
4. Samuel Alito (Bush 43, 2006, 60)
Swing:
1. Anthony Kennedy (Reagan, 1987, 74)
Seated, from left are: Associate Justice
Clarence Thomas, Associate Justice
Antonin Scalia, Chief Justice John G.
Roberts, Associate Justice Anthony M.
Kennedy, and Associate Justice Ruth
Bader Ginsburg. Standing, from left are:
Associate Justice Sonia Sotomayor,
Associate Justice Stephen Breyer,
Associate Justice Samuel Alito Jr., and
Associate Justice Elena Kagan.

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A. The Power to Make Policy:
1.
2.
By interpretation
By extending the reach of existing law
3.
By designing remedies
Measures of power:
1.
2.
3.
4.
5.
Judicial review not following stare decisis
Determining political questions
Kinds of remedies imposed
Sweeping orders from Constitution or interpretation of law

2.
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1.
B. Judicial Activism
Philosophy that the courts should take an active role in solving society’s problems
Examples:
Brown v. Board, 1954
Texas v. Johnson, 1989 and U.S. v.
Eichmann, 1990
U.S. v. Lopez, 1995
Clinton v. NY, 1998
Bush v. Gore, 2000
Atkins v. VA, 2002
Lawrence v. Texas, 2003
D.C. v. Heller, 2008
C. Judicial Restraint
1.
2.
3.
4.
Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems.
Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers.
Courts should merely interpret the law rather than make law.
Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted. (Originalism)

Since joining the United States Supreme Court in 1986, Associate Justice
Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint , the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights. For instance, in his dissent in
Lawrence v. Texas (2003), where the majority nullified a state law banning homosexual activity, Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brandnew ‘constitutional right' by a Court that is impatient of democratic change." Indeed, "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."Look up Scalia's dissents in cases as different as Planned Parenthood v. Casey (1992), where the majority upheld abortion rights, or Boumediene v. Bush (2008), where the Court recognized habeas corpus rights for enemy combatants, and you'll find similar arguments. As Scalia likes to say, when the
Constitution is vague or unclear, the courts should let the people, via their elected representatives, have their way.

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4.
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20 th Century (before 1937):
FDR’s “court packing” attempt (1937)
Now, conservatives complained about the liberal Court being too activist, especially the
Warren Court (1954-69).
Rights of the accused (Miranda v AZ, 1966)
Civil Rights (Brown v Board, 1954)
Civil Liberties (Engel v. Vitale, 1962)
Political Issues (Baker v. Carr, 1962)
The Burger Court (1969-86) decisions like Roe v. Wade, 1973 and UC Regents v. Bakke, 1978
Full circle: Rehnquist Court (1986-2005)
US v. Lopez, 1995
Bush v. Gore, 2000
U.S. v. Oakland Cannabis Buyers Cooperative, 2001
Similar views about Roberts Court (2005-present): DC v. Heller, 2008, McDonald v.
Chicago (2009), Citizens United (2010)

6.
7.
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2.
3.
4.
5.
1.
Courts can make decisions, but cannot enforce them. State and local governments may not carry it out.
Presidential appointment of judges
Stare decisis
Existing laws
The Constitution
Public opinion
Congress:
Senate confirmation
Impeachment and removal
Increasing the number of judges and courts
Passing Constitutional amendments-Court cannot strike down something as unconstitutional if it’s in the Constitution.
Determining jurisdiction of the courts