The Judiciary
Chapter 16
AP United States
Government and Politics
Introduction
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Little public interest in judicial nominations but
considerable congressional interest
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Power of the federal courts has increased at the same time as
the federal government
Federal policy expansion has increased opportunities for judges
to interpret policies
U.S. judges play a large role in policy-making
Judicial review means little in other countries
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In Great Britain, Parliament is supreme
Exceptions: Australia, Canada, West Germany, India
How Should the Constitution
Be Interpreted?
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Strict constructionist (interpretivist or
judicial restraint) approach: bound to
wording of the Constitution
Activist (legislative) approach: look to
underlying principles of the Constitution
Not a matter of liberal versus conservative
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Judges can be both liberal and conservative
Activists tend to be liberal and constructionists
tend to be conservative
Development of the Federal Courts
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Founders’ View
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Expected judicial review, but not such an
extensive role
Traditional view: judges find and apply
existing law
Activists say that judges make the law
Believed to be least dangerous branch
Has evolved toward judicial activism
National Supremacy and Slavery:
1789-1861
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McCulloch v. Maryland
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Federal law declared supreme over
state law
Interstate commerce clause
placed under federal law; any
conflicting state laws void
Dred Scott v. Sandford
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African Americans could not become
free citizens of the U.S.
One of the causes of the Civil War
Government and the Economy:
Civil War to 1936
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Dominant issue: Should the economy be
regulated by the state or the national
government?
Private property held to be protected by the 14th
Amendment
Anti-monopoly laws upheld by judicial activism
Supreme Court determines what is “reasonable”
regulation
Interprets the 14th and 15th Amendments
narrowly as applied to African Americans
Government and Political Liberty:
1936-present
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Court established
tradition of deferring to
the legislature in
economic cases
Court shifts attention to
personal liberties and
becomes active in
defining rights
FDR and “CourtPacking”
Revival of State Sovereignty
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Since 1992, the Supreme Court rules that
states have right to resist some forms of
federal action (11th Amendment)
Hint at some limits to supremacy of
federal government
Two Kinds of Federal Courts
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Constitutional Courts
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Created under Article III
Judges serve during good behavior (can’t be fired)
Salaries not reduced while in office
Ex.: District Courts (94), Courts of Appeals (12), and
Supreme Court (1)
Legislative Courts
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Created by Congress for specialized purposes
Fixed terms
No salary protection
Ex.: Court of Military Appeals and the Territorial
Courts
Selecting Judges
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Party background makes a difference in judicial
behavior
Senate hold hearings and then must confirm
Senatorial courtesy: judges for U.S. district courts
must be approved by that state’s senators
Litmus test
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Presidential political ideology go hand-in-hand in
selecting judges, especially in Supreme Court
nominations
Concerned that this downplays professional qualifications
Increasing importance of ideology
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Sharp drop in confirmation rates of appeals nominees
Even more important in respect to Supreme Court appointments
Jurisdiction of the Federal Courts
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Dual court system
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One state, one federal
Federal cases listed in Article III and the 11th Amendment
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Some cases can be heard in either court
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Federal question cases: involving U.S. matters
Diversity cases: involving citizens of different states
All others are left to state courts
If both federal and state laws have been broken (dual sovereignty)
Justified: each government has right to enact laws, and neither can
block prosecution out of sympathy for the accused
State cases can be appealed to SC
Excusive federal jurisdiction over federal criminal laws, appeals from
federal regulatory agencies, bankruptcy, and controversies between
2 states
Route to the Supreme Court
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Most cases begin in U.S. district courts, are
straightforward, and do not lead to new public policy
The Supreme Court picks cases it wants to hear on
appeal
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Uses writ of certiorai (“cert”)
Requires agreement of four justices to hear case
Usually deals with significant federal of constitutional
questions
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Conflicting decisions by circuit courts
State court decisions involving the Constitution
Only 3-4% of appeals are granted certiorari
Others are left to lowers courts; this results in a diversity
of constitutional interpretation
Getting to Court
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The Court rejects over 95% of the applications for
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Costs can be very high
certiorari
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About ½ of the petitions before the SC are in forma pauperis
Interest groups may help with fees.
The ACLU (American Civil Liberties Union) represents people who
believe that their constitutional rights have been violated.
Center of Individual Rights represents those who feel they have
been victimized by racial quotas.
NAACP has brought many key civil rights cases to the Court.
Fee Shifting
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Each party pays own court costs
Fee Shifting: allows the plaintiff to
collect its costs from the defendant if
the defendant loses
Section 1983 of Chapter 42 of the
United States Code allows a citizen to
sue a governmental official for a
violation of rights and win money
damages and court fees from the
government
Standing
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A person must have “standing” (entitlement to bring a
case) in order to sue
Must be an actual controversy between real adversaries
You must show that you have been harmed by the law
or practice about which you are complaining
Being a taxpayer does not give you the right to
challenge a federal governmental action
You may sue a governmental official individually for
damages, but you may not sue the government itself
without its consent (sovereign immunity)
Many of these statutes have been liberalized by
Congress, making it easier for citizens to sue
Class-Action Suits
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A case brought into court by a person on behalf
of not only himself/herself, but all other people
in the same circumstances
People may benefit even if they have not been
directly involved in the suit
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Brown v. Board of Education
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The Court ruled that Linda Brown was denied her 14th
Amendment rights, but the NAACP lawyers had asked that
the decision cover all “others similarly situated.”
Some cases may be monetarily advantageous for
both the lawyers and plaintiffs
The Supreme Court in Action
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Sessions last from early October to the end of June
Read briefs in individual offices, hear oral
arguments in the courtroom, and discuss decisions
in the conference room
Most cases come to the SC on a writ of certiorari.
Lawyers must submit briefs.
Lawyers them present oral arguments in open
court.
The U.S.’s top trial lawyer, the solicitor general,
will appear in cases where the U.S. is a party.
Written briefs and oral arguments may also be
offered by amicus curiae (interested party not
directly involved in the suit).
The Supreme Court in Action
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Amicus curiae is really a type of polite lobbying
by interest groups.
On Fridays, the justices vote on the cases they
have heard.
About 2/5 of the decisions are unanimous
Issues a written opinion
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Per curiam opinion (brief and unsigned)
Opinion of the Court (reflects the majority’s view)
Concurring opinion (opinion by one or more who
agree with the decision, but for different reasons)
Dissenting opinion (opinion of those on losing side)
The Supreme Court in Action
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Conference procedures
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Strategic retirements from the U.S. Supreme Court
 There has been a sharp increase in the rate of retirements
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Role of Chief Justice: speaking first, voting last
Selection of opinion writer(s)
Early duties were physically taxing, adverse to one’s health
More recently, retirements occur when justices and presidents share
same party
Types of cases
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Great majority of cases have little to do with public policy
Most cases are people accused of bank robbery, disputes over
contracts, personal-injury cases, and patent law
The Power to Make Policy
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The power to make policy
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Reinterpret the law or the Constitution
Extend the reach of laws
Design remedies for problems
Measures of power
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More than 160 federal laws have been declared
unconstitutional.
Number of prior cases overturned; NOT following stare
decisis: “let the decision stand;” principle of precedent
Deference to the legislative branch (political questions)
Kinds of remedies imposed; judges go beyond what
justice requires
Basis for sweeping orders either from the Constitution or
interpretation of federal laws
Views of Judicial Activism
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Supporters
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Critics
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Courts should correct
injustices
Courts are last resort
Judges lack expertise
Courts not accountable;
judges not elected
Various reasons for
activism
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Too many lawyers; but real
cause adversary culture
Easier to get standing in
courts
Legislation and Courts
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Laws and the Constitution are filled with vague
language
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Ambiguity gives courts opportunities to design
remedies
Courts can interpret language in different ways
Federal government is increasingly on the
defensive in court cases; laws induce litigation
The attitudes of federal judges affect their
decisions
Checks on Judicial Power
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Confirmation and impeachment proceedings alter
the composition of the courts
Changing the number of judges
Revising legislation declared unconstitutional
Altering jurisdiction of the courts and restricting
remedies
Constitutional amendment
Judges are not immune to politics or public opinion
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Effects will vary from case to case
Decisions can be ignored
 Ex: school prayer, segregated schools
 Usually if register is not highly visible
Checks on Judicial Power:
Public Opinion and Activism
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Defying public opinion, especially elite opinion,
frontally is dangerous
Opinion in realigning eras may energize court
Public confidence in court since 1966 has varied
Change caused by changes of personnel and
what government is doing
Reasons for increased activism?
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Growth of government
Activist ethos of judges