American Government
The Judiciary
Debate: Bush v. Gore
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Supreme Court decides 5-4 to ‘stop the
recounts’ ordered by Florida Supreme
Court – essentially declaring Bush the
victor.
Questions:
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Was this judicial activism?
What role did politics play?
The Judicial Branch
Federal courts are important in U.S. due to two factors:
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A. higher law notion of constitutionality
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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
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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
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Article III – The United States Supreme
Court
Article I – Congress has the Power to
Establish Lower Federal Courts
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Federal District Court (94)
The Federal Courts of Appeals (12+1)
Federal Court Organization (simplified)
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The federal courts are organized in to three tiers - like
a pyramid.
Base: Federal District Courts
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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
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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.
Missouri has two federal districts: Western &
Eastern.
Missouri Federal Districts
Federal Courts of Appeals
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11 geographic circuits, DC 12th, 13th Court
of Appeals for Federal Circuit.
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Court of Appellate Jurisdiction
Hear about 40K per year
No Juries / Three Judge Panels
Written Briefs
Middle Tier: The US Court of Appeals
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Cases that are adjudicated by the federal district courts may be
appealed to one of 13 U.S. Courts of Appeals.
Twelve of these courts are regional circuit courts - that is, they
hear cases from larger geographic areas known as circuits.
The Thirteenth court is in Washington D.C. and concentrates
on appeals related to civil suits against the US government.
These courts hear about 36,000 cases per year.
Cases are heard by three judges who largely work off of
written arguments known as briefs with limited oral arguments
on the part of attorneys. There are no juries, witnesses or cross
examinations.
Missouri is located in the 8th Circuit which sits in St. Louis,
MO. The 8th Circuit hears cases for the following states:
Arkansas; Iowa; Minnesota; Missouri; Nebraska; North
Dakota; South Dakota.
Top Tier: The United States Supreme Court
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The Supreme Court is both a court of original and appellate
jurisdiction.
Article III (section 2) outlines the original jurisdiction of the
court. Most important is the supreme court's role as the 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)- although in extraordinary circumstances the
court will hear a case directly after resolution in district court
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E.g. United States vs. Nixon (1974)
The Supreme Court hears relatively few cases - approximately
150 – 200 per year out of 5000 - 7000 requests for review.
97% of requests for review are rejected on average.
Article III, Section II:
Supreme Court Jurisdiction
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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.
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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
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How the US SC Hears Cases
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Writ of Certiorari
Petition for Court to Hear the Case
 Literal meaning (request for lower court records)
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Rule of Four
Exhaust the State Judiciary
Exhaust (almost always) the federal judiciary
Supreme Court:
Basic Procedures
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Cases appealed from the states must meet two conditions.
First, they must have exhausted the state system. Second, they
must raise federal questions - issues of constitutional
principles, federal law, etc.
The court exercises total control over its docket and decides
what cases to hear by the rule of four
The procedures of the supreme court look much like those in
appellate courts. The nine justices hear oral arguments and
read briefs including amicus curiae briefs.
The federal government, a usual litigant in before the court, is
represented by the United States Solicitor General (Paul D.
Clement)
Basic Procedures (con’t)
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Court hears oral arguments and then meets in
private meeting to vote on case.
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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.
The United States Supreme
Court
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How the US SC Hears Cases Continued
There are several types of opinions issued by the Courts:
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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
The Court generally decides cases from the bottom-up.
Amicus Curiae & likelihood of review
Courts in Perspective
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How Powerful are the US Federal
Courts?
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The strongest courts in the world
The weakest branch of government
Tools of the Court
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Judicial Review
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Marbury v. Madison (1803)
Exercise of JR
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Approximately 160 Federal Statutes
Approximately 1400 State/Local Statutes
(2/3 of which date to the incorporation
era)
The Federal Courts
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Article III establishes the Supreme Court. One of the major justifications
for the court is the Supremacy Clause which establishes the preeminence of
national over state law.
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Congress also has the power to establish lower federal courts, and during
the first congress the United States was divided in to judicial districts for
the establishment of federal district court (there are 94 district courts in the
United States).
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Basic point: the United States has the strongest court in the world.
Strongest Courts
Courts are powerful for several reasons
 A. Ability to act as a regulator
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B. Ability to invoke judicial review
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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
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public trust is high
even given intrepretivist vs. activist debate
Federal Courts are Limited
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stare decisis
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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
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must wait for cases to come to them - reactive, not
proactive
The case must be justiciable:
1.
2.
3.
4.
there must be a real controversy - no friendly suits, no advisory
opinions (unlike many state supreme courts)
case must be ripe and not moot - other avenues (state courts,
etc.) must be exhausted, injuries real – not hypothetical, etc.
parties must have standing - they must be the ones at risk,
government must waive sovereign immunity, etc.
Case must not present a political question - court must see the
matter as one that can be solved by judges; often eliminates
political matters on which the Court has no special expertise
(e.g. conundrum of War Powers Act; Bush v. Gore)
Limits
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limited ability to enforce rulings — on either public or
other institutions
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The Barnum study
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1. as a result, courts are rarely out of step with the Congress
and president — see limited number of cases of judicial review
2. also 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
Mishler & Sheehan – Court is not a countermajoritarian
institution.
Result  courts are usually yea-sayers, not nay-sayers;
legitimizers, not challengers
Are the Courts Political or
Above Politics?
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The political implications of judicial decisions
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Reapportionment
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Baker v. Carr (1962)
Privacy and Abortion
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Griswold v. Connecticut (1965)
Roe v. Wade (1973)
Political Jurisprudence?
Bush v. Gore (2000)
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The Florida recount violates equal protection and
there is no time to fix the problem.
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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
Judicial Politics
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The Nomination and Confirmation Process
is Partisan
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Democratic Presidents Nominate Democrats to
the Federal Courts, Republican Presidents
Nominate Republicans to the Federal Courts
The Senate behaves accordingly
Number of Federal Judges
Appointed by…
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Article III
Judiciary
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871 Federal
Judgeships
350
300
250
200
150
100
50
0
LBJ
RMN
Ford
Carter
Reagan
GHW Bush
Clinton
GW Bush
The myth of the non-political court.
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Judges are said to be impartial, decorous and fair and above
politics.
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Is this view correct?
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with respect. to neutrality/impartiality?
role of arbitrators?
in general it is vastly overstated.
Judges manage social conflict as in school funding, social
issues, etc.
The Myth of the Nonpolitical Court
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Appointment:
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The president nominates individuals to the federal courts - w/ senate
conformation. The senate is, as we have seen, interested in this process,
but traditionally does not like to fight the executive too much on court
appointments.
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The President is very interested in the political views of appointees.
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Judges need this non-political myth because they are the weakest
branch of government.The judiciary must rely on the cooperation of the
others, especially the other branches to get anything done.
Powers of the Court
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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.
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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
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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.
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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.
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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
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Between 1803-mid 1990's the court has only held about 160
federal statues, 1000 state statutes and 120 municipal statues to
be unconstitutional.
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Point; the supreme court exercises judicial review, but not
frivolously.
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Checks to prevent abuse:
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1. Constitutional Amendment
2. Impeachment of Judges
Important Judicial Decisions
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Reapportionment. Baker Vs. Carr (1962), and other cases =>
one man one vote. Shifted political power from rural to urban
areas.
Important Judicial Decisions
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Abortion
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Beginning in the 1960's the court began to expand rulings on
right to privacy - nothing in the constitution directly deals with
privacy, but there are several related ideas - search and seizure,
(for example),
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Griswold v. Connecticut (1965) the court declared a
Connecticut law outlawing the sale and distribution of
contraceptives to be unconstitutional. By 1973 the court ruled
(Roe v. Wade (1973)). the right of privacy extended to abortion.
(Casey vs. Planned parenthood of Southeastern Pennsylvania
(1992))
The Court and Democratic Legitimacy
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The court is political - how can it be legitimized
under democratic theory?
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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
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Possible answers:
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1. The court is not legitimate and, under democratic theory, there is no
justification for its powers.
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2. Counter argument: Too much emphasis is placed on the ideal of pure
democratic theory. 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.
Does a democratic polity requires an undemocratic branch of
government?
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Supreme Court:
Historical Perspective
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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
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a. Marbury vs. Madison
b. Martin vs. Hunter's Lessee
c. McCulloch vs. Maryland
d. Gibbons vs. Ogden
e. 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"
f. 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
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based on an economic interpretation of 14th amendment, no
deprivation of "life, liberty or property, without due process of law"
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Lochner v. New York
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
Court also strictly limited the other major clause of the 14th
amendment: equal protection
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-in Strauder v. West Virginia (1880)
Period 2 (con’t)
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Court became the arbiter of government attempts to
regulate the economy
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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
Examples:
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-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
-restricted Interstate Commerce Commission efforts to set
railroad rates
Period 3: Post New Deal
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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
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a. 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
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one new justice for each current justice over the age of 70, up
to a maximum total of 15 justices
Period 3 (con’t)
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Court and people vigorously disapprove --- seen
as an attack on the integrity of the court for
political reasons
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Court-packing effort fails, but sends a message to the
justices --- change or face further political reprisals
Scheme fails, but FDR gets results
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one justice (Owen Roberts) suddenly changes his
voting behavior, giving the Court a small liberal
majority
- The “Switch in Time that Saved Nine”
-1936, in case of West Coast Hotel vs. Parrish, Court
for first timeupheld a minimum wage law --- end of
substantive due process
Period 3 (con’t)
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Since then, little Court interference in economic
regulation
Instead, a focus on political and personal rights
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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
Engel v. Vitale & Murray v. Curlett
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Justice Tom Clark wrote, "Religious freedom, it has long been
recognized that government must be neutral and, while
protecting all, must prefer none and disparage none."
Period 3 (con’t)
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Reynolds v. Simms
Even under subsequent, more conservative chief
justices (e.g., Warren
Burger, William Rehnquist), Court has remained
active in these areas:
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-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
Impact of Expanding Judicial
Power on Presidency
A.
B.
C.
D.
E.
Judicial activism has limited president's power
Courts are part of new iron triangle:
bureaucracy, interest groups, courts
Court role = establishing rights (defined as
moral/legal trumps); hard to object to since
they are often seen as protecting the powerless
But the impact is to decrease presidential
discretion, rival president in agenda setting,
and contribute to single issue politics
All these make presidential leadership more
difficult