Supreme Court
Judiciary – The cornerstone of our
democracy
Judicial Review
• Marbury v. Madison (1803)
– Allows the courts to rule on the constitutionality
of laws, giving the court the power to strike down
or reinforce policy
– Judiciary Act of 1789 and the writ of mandamus
ruled unconstitutional
Applications of
Judicial Review
• Review of Congressional Acts
• Since 1803, close to 200 congressional acts
have been struck down as unconstitutional
• People can litigate (initiate lawsuits) to oppose a
law, especially if they feel like their voice was not
heard
• Allows people without the political clout or
influence to lobby Congress directly to still be
heard
Applications of
Judicial Review
• Review of Presidential Actions
• Citizens and courts can challenge the president’s
use of executive order
• Truman sent troops to seize the steel mills in 1952
when there was strike because would have
diminished our military capacity in the Korean War
and would hurt the national economy
• SCOTUS struck it down as unconstitutional
(Youngstown Sheet & Tube v. Sawyer)
• Will we see Boehner v. Obama in the near future?
Applications of
Judicial Review
• Review of State Actions
• Judicial review of state and local acts reinforce
the “supremacy clause” of the Constitution
• Fletcher v. Peck 1810- first time a state law was
struck down as unconstitutional
• McCulloch v. Maryland 1819 – taxing the bank of
the United States was unconstitutional
Limits on Judicial
Review
• Justiciable dispute – must judge actual situations,
not hypothetical situations (aka Live Controversy
rule) no “What if we passed a law about ____? Is it
Constitutional? All cases must be real or “live”.
• Political question – absence of existing law makes it
difficult for the court to rule on a case; won’t hear a
case until a law has been passed regarding the
issue
• Ex. – anti-gay marriage laws in the past 10 years the court began to hear those cases in March of
2013 – more expected
Types of Jurisprudence
Adversarial system – in the US
• “Blind justice” - decision must be made between 2
choices (defense vs. prosecution – each presents its
side of the case)
• Innocent until proven guilty
• court can’t bring up an issue - court maintains
impartiality and decorum and the jury weighs the
evidence
• 5th Amendment - defendant doesn’t have to testify
against oneself - we use this system in the US
• Civil lawsuits – plaintiff vs. defendant – suing over
money or property - 7th amendment
Types of Jurisprudence
• Inquisitorial system
• presumed guilty unless you can prove innocence
• court is actively involved in pursuing
facts/investigating the case
• European (Roman/Napoleonic code) model
• judge questions the defendant to try to get them to
admit guilt
• defendant can present their side of the story w/out
being cross-examined; think Amanda Knox case in
Italy – three trials took place
• Remember World Civ. “Spanish Inquisition”
Federal Court System
•
Step 1 – DISTRICT COURTS
– 94 US Dist. – Hear 342,000 cases/yr
– Trial by jury (only federal court with jury)
– Judge David Bunning sits at this level
•
Step 2 – APPEAL (CIRCUIT) COURTS
– 12 Courts of Appeal – Hear 61,000 cases/yr
– Panel of 3 judges, sometimes more
– No cases start here, review district court
decisions
– (MI, OH, KY, TN in the 6th District)
Federal Court System
• Step 3 – US Supreme Court
– 2013 – plenary review with oral arguments in about 100
cases – 5000 petition the court but most are denied
– 80-90 opinions written; 50-60 cases decided without oral
arguments
– Cases audio recorded and released on www.oyez.org
– Hear appeals – writ of certiorari – ask for records of the
case
– Very few “original jurisdiction” cases (they hear it first)
– “Rule of 4” – four justices needed to agree to hear a case
–this is “to grant cert.”
– To refuse a case the court will say “Cert. Denied”
The Roberts Court
Chief Justice
John Roberts
Appointment process
• President appoints judges for ALL federal
court vacancies
• Senate must confirm all nominations by
majority vote (Advice and consent)
• Senatorial courtesy – tradition started by
GWashington to seek approval from
Senators over appointed judges from their
states – Senators get first right of refusal
Public Influence on
Justices
•
•
1.
2.
Justices are NOT elected, appointed by
President
However, not entirely immune to public
opinion
Since they were appointed by a specific
president, they generally agree with his
ideologies.
Justices are aware of public opinion, and are
aware that decisions that flagrantly go against
public opinion will not be implemented or will
be subverted by the legislative or amendment
process
Checks on SCOTUS
• President appoints all judges
• Senate must confirm appointed judges
• Congress may alter the structure of the
court system (add or subtract # of courts
and justices)
• Congress has the power to impeach judges
• Congress may amend the Constitution if
the Courts find a law unconstitutional
– Ex. Income tax law originally found
unconstitutionally so Congress added 16th
amendment in 1913
Types of Opinions
• When an opinion is written (a decision), it
often takes months and many drafts
– Majority Opinion – justices in the majority must draft
an opinion setting out the reasons for their decision –
who won the case? Why?
– Concurring Opinion – justices who agree with the end
result (who won), but not the legal logic used by the
majority (still get their name in the legal/historical
record)
– Dissenting Opinion – justices who disagree with the
majority opinion write their side – can be one dissent
or multiples depending on legal logic used
Implementation
• The court is only as powerful as the president that will enforce
its decisions.
• “John Marshall has rendered his decision; now let him enforce
it!” – Andrew Jackson
• Refused to enforce Cherokee land rights; resulted in the “Trail
of Tears” – his successor Martin Van Buren eventually carried
out the removal
• “All deliberate speed” – Chief Earl Warren
– 10 years after Brown only 1% of Southern schools were
desegregated
– Eisenhower & JFK sent army south to desegregate
• Court must rely on other branches, state & local officials and
law enforcement agencies to enforce its ruling
More SCOTUS Vocab!
• Stare decisis – “Let the decision stand” –
refusing to take a case (Cert. Denied) ALSO
means that the lower court decision stands –
Stare decisis – it is a form of judicial restraint
• Amicus curiae brief – “Friend of the court” –
anyone can use their First Amendment right to
petition the court to hear a case on behalf of
someone else – the legal brief explains the
seriousness of the issue and why the case
should be heard
Conservatism vs.
Liberalism???
• Justices are supposed to be “above politics” and
maintain impartiality
• However, they do have personal ideologies or biases
– EX. – CJ Earl Warren (1953-69) and CJ Warren
Burger (1969-1986) skewed liberal
– CJ William Rehnquist (1986-2005) and CJ John
Roberts (2005-?) skew(ed) conservative
– Depends on the issue – can be “loose
construction” on one issue but “strict construction”
on another
Strict vs. Loose Construction
• Loose Construction
• Courts should interpret the meaning of the
Constitution broadly and should not limit
themselves to what is specifically stated or written
• The Constitution must grow and adapt to new
circumstances
• Hamilton & Jefferson debated the “elastic clause”
– Hamilton favored loose construction to create
bank – Jefferson not so much
Strict vs. Loose
Construction
• Courts should not reinterpret the
Constitution
• Courts should interpret the Constitution as
the framers intended
• In other words, they follow the “original
intent” of the framers. (Justice Scalia’s
“originalism”)
Activism v. Restraint
• Judicial Activism
• Judges should interpret law loosely, using
their power to promote their preferred
political and social goals.
• Judges are said to be activists when they
are likely to interject their own personal
values in court decision
• Warren Court and Burger Courts (1950’s
to mid 1980’s)
Activism v. Restraint
• Judicial Restraint
• Legislators, not judges, should make the
laws.
• Judges are said to exercise judicial restraint
when they rule closely to laws/statutes and
previous cases when reaching their
decisions.
• Rehnquist court (mid 1980’s to 2000’s)
• But is using restraint still injecting one’s
personal values?