American Government
The Judiciary
Debate: Bush v. Gore


Supreme Court decides 5-4 to ‘stop the
recounts’ ordered by Florida Supreme
Court – essentially declaring Bush the
victor.
Questions:


Was this judicial activism?
What role did politics play?
Political Jurisprudence?
Bush v. Gore (2000)

The Florida recount violates equal protection and
there is no time to fix the problem.


Breyer, Ginsburg, Souter, Stevens - No
O’Connor, Kennedy, Rehnquist, Thomas, Scalia - Yes
Bush v. Gore (USSC)
END THE COUNTING (5-4)
YES
YES
YES
YES
YES
NO
NO
NO
NO
EQUAL PROTECTION (7-2)
YES
YES
YES
YES
YES
YES
YES
NO
NO
ARTICLE 2 (3-6)
YES
YES
YES
NO
NO
NO
NO
NO
NO
The Judicial Branch
Federal courts are important in U.S. due to two factors:

A. higher law notion of constitutionality




Constitution = societal contract
some institution must interpret that contract
courts have assumed that role, because they are seen as less
political
B. separation of powers



courts are largely independent of the other branches
because, they are capable of protecting themselves
in short, courts are political actors
The Creation and Organization
of the Federal Judiciary


Article III – The United States Supreme
Court
Article I – Congress has the Power to
Establish Lower Federal Courts


Federal District Court (94)
The Federal Courts of Appeals (12+1)
Federal Court Organization (simplified)


The federal courts are organized in to three tiers - like
a pyramid.
Base: Federal District Courts





Each state has at least one district court and no district
encompass more than one state.
There are 94 total district courts and about 665 judges.
These courts are presided over by federal judges who are
appointed by the president, confirmed by the senate and
hold office for life.
Each court has a minimum of two judges and a maximum
of about 27.
These courts hear about 280,000 criminal and civil cases
per year.
Federal District Court



Federal district courts have original jurisdiction in most,
but not all, federal cases. Some of these are criminal,
but many if not most cases are civil.
Federal district courts use both grand and petite juries
and cases are argued by United States Attorneys, who
are appointed by the president via senatorial courtesy.
Arkansas has two federal districts: Western & Eastern.
"A trial judge should be quick, courteous and right.
That is not to say that the Court of Appeal should
be slow, rude and wrong, for that would usurp the
function of the House of Lords.“ - Lord Asquith
Arkansas Federal Districts
Federal Courts of Appeals

11 geographic circuits, DC 12th, 13th Court
of Appeals for Federal Circuit.




Court of Appellate Jurisdiction
Hear about 40K per year
No Juries / Three Judge Panels
Written Briefs
Top Tier: The United States Supreme Court

The Supreme Court is both a court of original and appellate
jurisdiction.






Article III (section 2) outlines the original jurisdiction of the court.
Court Role: first and only arbitrator of legal disputes between the
states.
Article I grants Congress the power to establish appellate jurisdiction
for federal courts.
Most cases heard by the court are on appeal from the US courts of
appeals and state courts of last resort (the highest of the state courts)
The Supreme Court has docket control: It decides what cases to take.
The Supreme Court hears relatively few cases:


approximately 150–200 a year out of 5000-7000 requests for review.
97% of requests for review are rejected on average.
Article III, Section II:
Supreme Court Jurisdiction

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;--to all Cases affecting
Ambassadors, other public ministers and Consuls;--to all Cases of
admiralty and maritime Jurisdiction;--to Controversies to which the United
States shall be a Party;--to Controversies between two or more States;-between a State and Citizens of another State;--between Citizens of
different States;--between Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.
The United States Supreme
Court

How the US SC Hears Cases

Writ of Certiorari
Petition for Court to Hear the Case
 Literal meaning (request for lower court records)




Rule of Four
Exhaust the State Judiciary
Exhaust (almost always) the federal judiciary
Basic Procedures

Court hears oral arguments and then meets in
private meeting to vote on case.




Senority
Agenda setting
After the court decides a case by majority vote,
a majority (typically the chief justice if in the
majority or the most senior justice in the
majority) and minority opinion is written.
These serve as the guide for lower courts to
handle similar cases. Because of the principle of
Stare Decisis the majority opinion explains the
basis for subsequent rulings.
Precedent & Stare Decisis
The United States Supreme
Court


How the US SC Hears Cases Continued
There are several types of opinions issued by the Courts:




per curiam - decision delivered via an opinion issued in the name
of the Court rather than specific justices. Tend to be short and
on non-controversial issues.
Majority opinion - opinion of the court
Concurring opinion - written by justice who agrees with the
majority's conclusion, but not its reasoning
Dissenting opinion - written by justice who disagrees with the
majority's conclusion
Courts in Perspective

How Powerful are the US Federal
Courts?


The strongest courts in the world
The weakest branch of government
Strongest Courts
Courts are powerful for several reasons
 A. Ability to act as a regulator



B. Ability to invoke judicial review




regularly rule on the validity of federal regulations
many regulations currently not seen as valid until upheld by the courts
declare acts of Congress or the president to be impermissible under the
Constitution
have done so about 160 times since 1803
have ruled state laws unconstitutional about 1,000 times
C. One of the most trusted institutions in government


public trust is high
even given intrepretivist vs. activist debate
Powers of the Court


The supreme court has the power of Judicial Review. That is, to declare
laws passed by congress an the states unconstitutional and therefore null
and void. This is what makes the courts so powerful.
Marbury v. Madison - 1803.

The election of 1800 witnessed the defeat of the federalists and the election of
democratic president Thomas Jefferson. Before leaving office Federalist
president John Adams, w/ the help of the federalist dominated legislature,
packed the judiciary with loads of federalist judges. Jefferson was furious, and
when he realized that several of the appointments had not been delivered he
order they be cancelled. One of the appointees, Wm. Marbury, asked the court
to order that the appointments be made.
Judicial Review



This placed the court in a difficult position. The chief justice - John
Marshall - was a federalist. If he ordered the appointments, he risked
the integrity of the court because it was likely that Jefferson would
ignore the order. If he did not, he also risked the integrity of the court
by backing down.
Solution. Marshall ruled that the Judiciary Act which authorized the
appointments (actually authorized the courts to order the appointments)
conflicted with Article III of the constitution. In particular, he ruled that
the court did not have jurisdiction in this matter.
The Democrats were satisfied because they won the battle. The court,
by giving a little ground on a minor question protected itself and
established the principle of judicial review which was very slowly
developed over the next century or so. => Greatly strengthened the
court.
Judicial Review

Between 1803-mid 1990's the court has only held about 160
federal statues, 1000 state statutes and 120 municipal statues to
be unconstitutional.

Point; the supreme court exercises judicial review, but not
frivolously.

Checks to prevent abuse:


1. Constitutional Amendment
2. Impeachment of Judges
Federal Courts are Limited

stare decisis



lawyers love precedent
prefer stability offered by prior cases -- less disruption to society and to
reputation of the Court
writing in 1992 case of Planned Parenthood of Southeastern
Pennsylvania vs. Casey, Justice David Souter noted, in upholding Roe:
"For two decades of economic and social development, people have
organized intimate relationships and made choices that define their
views of themselves and their places in society, in reliance on the
availability of abortion in the event that contraception should fail....
[Whatever the premises of opposition may be, only the most
convincing justification under accepted standards of precedent could
suffice to demonstrate that a later decision overruling the first was
anything but a surrender to political pressure, and an unjustified
repudiation of the principle on which the Court staked its authority
in the first instance. So to overrule under fire in the absence of the
most compelling reason to reexamine a watershed decision would
subvert the Court's legitimacy beyond any serious question."
Limits: Justiciability


The Federal Courts are Reactive. Not Proactive.
The case must be justiciable:
1.
there must be a real case or controversy

2.
case must be ripe and not moot


3.
other avenues must be exhausted
injuries real – not hypothetical
parties must have standing


4.
no friendly suits, no advisory opinions
they must be the ones at risk
government must waive sovereign immunity
Case must not present a political question

Case must have a judicial remedy
Limits

limited ability to enforce rulings — on either public or
other institutions



The Barnum study




courts are rarely out of step with President or Congress.
courts rarely out of step with the public
Court rules on matters such as abortion, contraception, busing,
etc. only as public opinion approaches or passes 50%
sole exception = prayer in school
Result  courts are usually yea-sayers, not nay-sayers;
The Court serves as a legitimizer, not a challenger.
Judicial Politics

The Nomination and Confirmation Process is Partisan:




Presidents Nominate, Senate Confirms.
Senatorial Courtesy: Presidents defer to Senators
from own Party on lower court nominations
Democratic Presidents Nominate Democrats to the
Federal Courts, Republican Presidents Nominate
Republicans to the Federal Courts
The Senate behaves accordingly
Presidential Legacy:
Federal Judges by Appointment - 2004

Article III
Judiciary

871 Federal
Judgeships
350
300
250
200
150
100
50
0
LBJ
RMN
Ford
Carter
Reagan
GHW Bush
Clinton
GW Bush
The Court and Democratic Legitimacy

The court is political - how can it be legitimized
under democratic theory?

Court justices are not elected and serve for life.
Formally, there is very little participation of the
American people in the selection of federal judges.
The Court and Democratic Legitimacy

Possible Reactions:
1.
2.
3.
The court is not legitimate and, under democratic theory, there is no
justification for its powers.
Counter argument: Too much emphasis is placed on the ideal of pure
democratic theory.
Does a democratic polity requires an undemocratic branch of
government?

Look to the original justifications of the founders, who, as we know, were terribly
suspicious of mass participation in government and sought to find way to insulate
the political process from ‘momentary passions’ and abusive majorities associated
with large polities.
Supreme Court:
Historical Perspective





I. History of Supreme Court can be divided into three periods,
distinguished by the Court's priorities
PERIOD 1: 1789 to Civil War
period of nation building
focus on defining the role of the new federal government and its relations
with the states
KEY CASES






Marbury vs. Madison
Martin vs. Hunter's Lessee
McCulloch vs. Maryland
Gibbons vs. Ogden
Dartmouth College v. Woodward -- "nor shall any person ... be deprived of life,
liberty, or property, without due process of law, nor shall private property be
taken for public use, without just compensation"
Dred Scott vs. Sanford - the Dred Scott case
Period 2: Civil War to New Deal
SECOND PERIOD - Civil War to New Deal

period of economic-based decisions

focus of Court  strong attachment to and defense of private
property

Lochner v. New York




based on an economic interpretation of 14th amendment, no deprivation of "life,
liberty or property, without due process of law"
But -- 14th was intended to protect newly-freed black slaves
used by a conservative court to protect property owners - via review
government regulations on businesses
called "substantive due process" - courts reviewed the substance of
legislation rather than the process of legislating
Period 2 (con’t)

Court became the arbiter of government attempts to
regulate the economy



Examples:





limited the ability of the Congress to control the economy
using substantive due process, Court struck many governmental
regulatory efforts during the late 1800s and early 1900s
-ruled income tax unconstitutional
-limited government efforts to break up monopolies
-limited government efforts to regulate child labor
-prevented government efforts to place limits on length of work
week
Civil Rights: Court strictly limited the other major clause of the
14th amendment: equal protection

-in Strauder v. West Virginia (1880)
Period 3: Post New Deal



THIRD PERIOD - Post New Deal
Court's focus shifts from economic regulation to issues of
personal and political liberty
Substantive due process comes to a head during the
New Deal:



President Roosevelt frustrated by Supreme Court in his efforts to
expand federal efforts to combat the Great Depression
Court struck many recovery programs as burdensome to
business
Court Packing: FDR attempts to overcome Court by
expanding its numbers

one new justice for each current justice over the age of 70, up
to a maximum total of 15 justices
Period 3 (con’t)


Court and people vigorously disapprove --- seen
as an attack on the integrity of the court for
political reasons – dies in House
Scheme fails, but FDR gets results



Owen Roberts switches to liberal/New Deal side.
the “Switch in Time that Saved Nine”
1936, in case of West Coast Hotel vs. Parrish, Court
for first time upheld a minimum wage law

ends substantive due process to stymie economic regulation
Period 3 (con’t)


Since then, little Court interference in economic
regulation
Instead, a focus on political and personal rights




especially under the leadership of Chief Justice Earl Warren
(former GOP governor of California; appointed by Ike)
Brown vs. Board of Education of Topeka
Griswold vs. Connecticut
Reynolds v. Simms & Baker vs. Carr
Period 3 (con’t)

Even under subsequent, more conservative chief justices
(e.g., Warren Burger, William Rehnquist), Court has
remained active in these areas:
 -Burger (Nixon's appointee) wrote busing cases
 -1973 - Roe v. Wade - written by Nixon appointee
Blackmun
 -1989 - Court upholds legality of flag burning, with
help of two Reagan appointees: Kennedy and Scalia