Chap 16, Day 4 Aim: How have individual
judges shaped the court? Do Now- Pair/Share
1) How does the cartoon criticize FDR in the first
cartoon? 2) Did he have the right to add more
judges to the court?
The Courts as Policymakers
• Implementing Court Decisions
• Must rely on others to carry out decisions
• Interpreting population: understand the
decision
• Implementing population: the people who
need to carry out the decision – may be
disagreement
• Consumer population: the people who are
affected (or could be) by the decision
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The Courts and the Policy Agenda- Historical Review
John Marshall – Marbury v. Madison, Judicial review:
courts determine constitutionality of acts of Congress
“Nine Old Men” – FDR court packing
The Warren Court – 1953-69, Both applauded and
criticized for bringing end to racial segregation,
incorporating the Bill of R. (applying it to states), &
ending officially sanctioned voluntary prayer in public
schools.
Recognized as high point in judicial power that has
receded ever since, but with a substantial continuing
impact
Brown Case, Reynolds Case, Miranda Case, Gideon
Case, Roth Case, Griswold Case, etc.
Burger Court- 1969-1986
• Burger – appointed by Nixon, Conservative,
Other judges often swayed more liberal
• Swann v. Charlotte-Mecklenburg Board of
Education – allowed forced busing to overcome
segregation
• Furman v. Georgia, invalidated death penalty
sentences at that time
• Reinstated death penalty in Gregg v. Georgia
• Roe v. Wade – broadened right to privacy
• United States v. Nixon – Jud Branch could
determine Executive Privilege
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The Rehnquist Court- 1986 - 2005
Considered a conservative, Rehnquist favored idea
of federalism that emphasized Tenth Amendment's
reservation of powers to the states.
Under this view of fed., Sup Court, for first time
since the 1930s, struck down an Act of Congress as
exceeding federal power under the Commerce
Clause.
Presided over presidential impeachment trial,
against Pres. Bill Clinton.
In 2000, Rehnquist wrote a concurring opinion in
Bush v. Gore, the case that effectively ended the
presidential election controversy in Florida. He
concurred with four other justices in that case that
the Equal Protection Clause barred a "standardless"
manual recount of the votes as ordered by the
Florida Supreme Court.
Understanding the Courts
• The Courts and Democracy
– Courts are not very democratic
• Not elected
• Difficult to remove
– The courts do reflect popular majorities
– Groups are likely to use the courts when other
methods fail – promoting pluralism
– There are still conflicting rulings leading to
deadlock and inconsistency
Understanding the Courts
• What Courts Should Do: The Scope of Judicial
Power
– Judicial restraint: judges should play a minimal
policymaking role - leave the policies to the legislative
branch.
– Judicial activism: judges should make bold policy
decisions and even charting new constitutional
ground.
– Political questions: means of the federal courts to
avoid deciding some cases.
– Statutory construction: the judicial interpretation of an
act of Congress.
Judicial Interpretation
• Judicial interpretation - a theory that explains
how judiciary should interpret the law, constitut.
docs. and legislation.
• An interpretation which results in or supports
some form of law-making role for the judiciary in
interpreting the law is sometimes pejoratively
characterized as judicial activism,
• Opposite is judicial lethargy, with judicial
restraint somewhere in between.
• Theories of judicial interpretation range from
originalism and strict constructionism to
functionalism (Constitution viewed as a Living
Constitution).
Understanding the Courts- Observations?
Assessment
• Create a multiple choice question based
on previous material.
• Exchange question with neighbor.
• Share question with class.