Chapter 16
The Judiciary
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WHO GOVERNS?
1. Why should federal judges serve for
life?
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TO WHAT ENDS?
1. Why should federal courts be able to
declare laws unconstitutional?
2. Should federal judges only interpret
existing laws or should they be able to
create new laws?
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http://www.youtube.com/watch?v=s
D5PIeGt8is
Warm-up
President Obama ponders choice for
US Supreme Court
http://www.youtube.com/watch?v=s
D5PIeGt8is
Overview
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Judicial Review – the power of courts to
declare laws unconstitutional
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Judicial Restraint Approach – judges
should decide cases strictly on the basis of
the language of the Constitution
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Activist Approach – judges should
discern the general principles underlying
the Constitution and apply them to
modern circumstances
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The Development of the Federal
Courts
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National Supremacy and Slavery
• Marbury v Madison (1803)upheld
judicial review of congressional acts
• McCulloch v Maryland (1819)federal
bank “necessary and proper” even
though not mentioned in Constitution
• Dred Scot decision (1857)blacks not
US citizens
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Government and Economy
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John Marshalest. supremacy of
federal government
1880s mainly used to protect private
property
Government and political
liberty
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1937-1974 did not overturn a single
federal law designed to regulate
business but did not overturn any
laws that violated personal political
liberties
Revival of state sovereignty
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1992 to present
States have right to resist some
forms of federal action/limits federal
supremacy
Library of Congress/LC-USZ62-44166
Roger B. Taney, chief justice from 1836 to 1864, wrote the Dred Scott
decision, which asserted that blacks were not citizens of the United
States. Dred Scott claimed that when his master brought him north to
a free state, he ceased to be a slave. The public outcry against the
decision was intense, at least in the North, as is evident from this
poster announcing a mass meeting “to consider the atrocious
decision.” p. 434
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Bettmann/Corbis
The “nine old men”—The Supreme Court in 1937, not long after President
Franklin D. Roosevelt tried, unsuccessfully, to “pack” it by appointing six
additional justices who would have supported his New Deal legislation.
Justice Owen J. Roberts (standing, second from the left) changed his vote
on these matters, and the Court ceased to be a barrier to the delegation of
power to the bureaucracy. P. 435
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Map 16.1 U.S. District and Appellate Courts
Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the
Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth.
Source: Administrative Office of the United States Courts (January 1983).
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Selecting Judges
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Selecting Judges/Pres.
Nominates/Senates approves
• Senatorial Courtesy—gives preference
to senator of that state to pick judge
• The “Litmus Test” test of political
ideology to select a judge/president
uses this
The Structure of the Federal
Courts
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Lower Federal Courts
• Constitutional Court (Constitutional
protection)
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District courts—most important, 94/federal
trials held here
Courts of appeal—hear appeals from district
courts/no trials
• Legislative Court (created by congress)
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Court of Military Appeals/judges can be fired
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Selecting Judges/Court
system
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Dual court system
State and federal
Federal-Question casescases
concerning the Constitution, federal
laws, or treaties (Rob federal bank)
Diversity casesinvolving citizens of
different states who can bring suit in
federal courts if it is over$75,000
Figure 16.1 Female and Minority
Judicial Appointments, 1963–2004
Source:
Updated from
Harold W.
Stanley and
Richard G.
Niemi,
Vital Statistics
on American
Politics, 2005–
2006
(Washington,
D.C.:
Congressional
Quarterly,
2006), table
7.5.
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Figure 16.1 Female and Minority
Judicial Appointments, 1963–2004
Source:
Updated from
Harold W.
Stanley and
Richard G.
Niemi,
Vital Statistics
on American
Politics, 2005–
2006
(Washington,
D.C.:
Congressional
Quarterly,
2006), table
7.5.
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Figure 16.2 Confirmation Rates for
Nominees to the U.S. Court of Appeals
(1947–2005)
Source: “The Consequences of Polarization: Congress and the Courts” by Sarah A. Binder, in David Brady
and Pietro Nivola, Eds., Red and Blue Nation? (Vol. 2) Consequences and Correction of America’s Polarized
Politics. Brookings Institutions and Hoover Institution Presses. Reprinted with permission of the author.
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Karen Bleier/AFP/Getty Images
Sonia Sotomayor became the third female and first Hispanic
justice on the Supreme Court. p. 440
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The Jurisdiction of the Federal
Courts
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Writ of certiorari – An order by a
higher court directing a lower court
to send up a case for review.
Supreme Court picks the cases it
would like to review
4 Justices need to agree to hear the
case
Grant it if 2 court of appeals courts
decided it different/violation of
Constitution
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Figure 16.3 The Jurisdiction of the
Federal Courts
p. 441
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Getting to Court
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In forma pauperispoor
person can have his/her
case heard in federal court
without cost
Fee Shiftingplaintiff
recovers costs from the
defendant if plaintiff wins
Standingif you sue, you
must be entitled to bring a
suit
Class Action Suitshelp
him/her and all others who
are in similar situation
Carl Iwasaki/Time Life Pictures/Getty Images
Linda Brown was refused admission
to a white elementary school in
Topeka, Kansas. On her behalf, the
NAACP brought a class-action suit
that resulted in the 1954
landmark Supreme Court decision
Brown v. Board of Education. p. 445
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Warmup
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http://www.youtube.com/watch?v=
WsIZM6bzoEM&feature=related
Warm-up Constitution review
The Supreme Court in Action
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Briefdocument, sets forth facts of case/laws
supporting it written by an attorney
Amicus curiaeBrief submitted by “friend of
court” interested group
Per curiam opinion—brief unsigned opinion of
court
Opinion of the court—majority of the court write
it/sign it
Concurring opinion—written when majority has
agreed but for different reasons
Dissenting opinion—signed opinion in which one
or more justice disagree
with the majority view
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Charles Dharapak/AP Photo
The members of the Supreme Court, front row, from left are: Anthony
Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia,
and Clarence Thomas. Back row, from left are: Samuel Alito, Ruth
Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447
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The Power of the Federal Courts
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The Power to Make Policy
• Stare decisis “allowing
prior rulings to control
current case”
• Political question “lets
congress/President
decide” district
boundaries
• Remedy—correct
situation judge believes
wrong
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Alex Webb/Magnum Photos
The activism of federal courts
is exemplified by the
sweeping orders they have
issued to correct such
problems as overcrowded
prisons. p. 448
Checks on Judicial Power
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Bettmann/Corbis
Thurgood Marshall became the
first black Supreme Court
justice. As chief counsel for
the NAACP, Marshall argued
the 1954 Brown v Board of
Education case in front of the
Supreme Court. He was
appointed to the Court in 1967
and served until 1991. p. 452
Congress and the Courts
• Confirmations
• Impeachment (15) 4
convicted
• Number of judges alter the
number/create to their liking
• Jurisdiction—prevent matters
it did not want federal courts
to act on to ever make it to
court
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Figure 16.4 Public Confidence
in the Court, 1974 - 2006
Source: The Gallup Poll.
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WHAT WOULD YOU DO?
MEMORANDUM
To: Senator Ann Gilbert
From: Amy Wilson, legislative assistant
The Supreme Court has held that the attorney general cannot
use his authority over federally controlled drugs to block
the implementation of the Oregon “Death With Dignity” law.
Now some of your colleagues want to enact a federal
equivalent of that law that would allow physicians to
prescribe deadly drugs to patients who request them.
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WHAT WOULD YOU DO?
Arguments for:
1. The law respects the people’s rights to choose the time and
place of their own death.
2. It is already permissible to post “Do Not Resuscitate” orders
on the charts of terminally ill patients.
3. Physicians can be held to high standards in implementing
the law.
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WHAT WOULD YOU DO?
Arguments against:
1. The law will corrupt the role of doctors as many think has
happened in Holland, where a similar law has led some
physicians to kill patients prematurely or without
justification.
2. Such a law will lead some physicians to neglect or ignore
the desires of the patient.
3. This law will undermine the more important goal of helping
patients overcome pain and depression.
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WHAT WOULD YOU DO?
Your decision:
Support the law?
Oppose the law?
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