WHAT DO YOU ALREADY KNOW ABOUT THE
JUDICIARY?
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Article?
Appointed?….term?
Types of federal courts? (structure)
Supreme Court
# of justices
Current Chief Justice
last Associate Justice confirmed
1st African-American
1st Woman
1st Latino (Latina)
Current African-American
Current Women
Aim: How has the federal judiciary
evolved?
DO NOW:
What do you already know about
“judicial review”?
• What is Judicial Review?
- the right of the federal courts to declare laws
of Congress and acts of the executive branch
void and unenforceable if they are judged to
be in conflict with the Constitution
• What court case established the power of
judicial review for the Supreme Court?
• What is the difference between a strictconstructionist approach and an activist
approach to interpreting the Constitution?
• Who is likely to be the “liberal” or
“conservative” today?
DEVELOPMENT OF THE COURTS
• FOUNDERS probably expected judicial review
but not such a large role in policy making
• FOUNDERS believed that the courts “interpret
the law”, not make policy
• Courts - “least dangerous” branch – according
to Alexander Hamilton, in Federalist 78
• Judicial review was designed not to enlarge
the power of the courts but to confine that of
the legislature
• **things have changed since Hamilton’s time
FEDERAL COURTS (1787-1865)
• Issues that dominated the Court
• Nation building, legitimacy of the federal
government, and slavery
• Court asserts supremacy of the federal
government over the states
• National law – dominant law
• Supreme Court had power to decide what the
Constitution meant
• Landmark cases:
-Marbury v. Madison (1803)
-McCulloch v. Maryland (1819)
-Dred Scott decision (1857)
FEDERAL COURTS (1865-1937)
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Issues that dominated the Courts
The Government and the Economy (proper relationship)
Restrictions on powers of governments
When would economy be restricted (regulated) by
states and when by the nation?
Resisted regulatory measures?
Actually, tried to distinguish between reasonable and
unreasonable regulation
Evidence shows that major concern was the protection
of private property
IN ADDITION, the 14th and 15th Amendments construed
so narrowly gave limited benefits to blacks
FEDERAL COURTS (1938-present)
• Big issues before the Court
• PERSONAL LIBERTY AND SOCIAL EQUALILTY
• Enlarged scope of personal freedom and narrowed that
of economic freedom
• Decidedly PRO-REGULATION
• Broad grants of discretionary authority to bureaucracy
• Create welfare state
• FDR attempts Court packing in 1936
• Chief Justice Earl Warren – 1953 – begins most activist
period in history of the Court (protect rights and
liberties of citizens)
Aim: How does the federal judiciary
influence U.S. government and
politics?
DO NOW:
1. Why did Alexander Hamilton
consider the federal judiciary to
be the least dangerous branch?
2. What is the significance of
Marbury v. Madison?
3. What types of issues have
dominated the Court since 1938?
STRUCTURE OF FEDERAL COURTS
SELECTION OF JUDGES (Constitutional Courts)
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Nominated by …
Confirmed by …
Term?
Considerations (party, ideology, qualifications,
competency, “diversity”)
• “litmus test” – seek out judges with record similar to
ideology looking for
• Senatorial courtesy
• BOTTOM LINE: doesn’t always work out the way a
President would think (examples – Nixon and Warren
Burger and Harry Blackmun; Reagan and Sandra Day
O’Connor)
U.S. SUPREME COURT:
KNOW WHOSE WHO?
DO YOU
Current Supreme Court
Antonin
Scalia, DC
1986–
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N.J.
1936
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Roman
Catholic
Anthony M. 1988–
Kennedy,
Calif.
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Calif.
1936
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Roman
Catholic
Clarence
1991–
Thomas, DC
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Ga.
1948
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Roman
Catholic
Ruth Bader
Ginsburg,
DC
1993–
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N.Y.
1933
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Jewish
Stephen G.
Breyer,
Mass.
1994–
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Calif.
1938
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Jewish
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N.Y.
1955
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Roman
Catholic
John G.
Roberts, DC
2005–
Samuel A.
Alito, Jr.,
N.J.
2006–
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N.J.
1950
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Roman
Catholic
Sonia
Sotomayor
N.Y.
2009–
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N.Y.
1954
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Roman
Catholic
Elena
Kagan N.Y.
2010–
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N.Y.
1960
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Jewish
What kinds of matters do Federal
Courts deal with?
• Criminal/civil cases
• Federal questions
• Diversity cases
What falls within the original
jurisdiction of the Supreme Court?
A CONTROVERSY INVOLVING:
• Two or more states
• The U.S. and a state
• Foreign ambassadors/diplomats
• State and a citizen of a different
state
Aim: How does the federal judiciary
influence U.S. government and
politics?
So,…
1. Describe the structure of the federal
judiciary. (3 types of courts)
2. How does one become a federal judge?
3. What factors would a President consider
when making appointments to the federal
bench?
4. What types of cases are within the “original
jurisdiction” of the Supreme Court?
OTHER TERMS
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Writ of Certiorari
Gideon v. Wainwright
In forma pauperis
Fee-shifting
Standing
Sovereign immunity
Class-action suits
brief
OTHER TERMS
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Amicus curiae brief
Types of Opinions
Opinion of the Court
Majority opinion
Concurring opinion
Dissenting opinion
Stare decisis
remedy
Aim: How does the federal judiciary
influence U.S. government and
politics?
DO NOW:
1.
2.
3.
4.
Why did Alexander Hamilton consider the
federal judiciary to be the least dangerous
branch of government?
What is the difference between judicial
activism and judicial restraint?
Which philosophy follows “strict
constructionism”? Which follows a broad
loose interpretation of the constitution?
Which is associated with “original intent”?
Which is associated with “contemporary
meaning”?
JUDICIAL ACTIVISM
JUDICIAL RESTRAINT
• Correct injustices
• Institution of last resort
for those without vote or
influence
• Congress and state
legislatures tolerated
segregation of schools
• Court declared
segregation
unconstitutional
• “Contemporary meaning”
• Judges – no specific
expertise (schools,
prisons, environment)
• Judges not elected (don’t
need an unelected
legislature)
• Immune to popular
control
• Mandates cost ($$$)
• “original intent”
• NO INDEPENDENT ENFORCEMENT
• CHECKS BY CONGRESS
• Can gradually alter composition (appointments,
impeachment
• Alter number of judges
• Undo S.C. decision by amending Constitution
• Congress can repass law that Court declared
unconstitutional
• Change jurisdiction of lower courts and appellate
jurisdiction of Supreme Court
MORE CHECKS ON JUDICIAL POWER
CHECK BY PUBLIC OPINION
• Court is aware, especially of elite opinion
• Ignoring public opinion may destroy legitimacy of the Court
(Dred Scott decision)
• Influences the remedies the Court offers (backing off on busing)
• Public opinion not only restrains but could energize the Court
• Activist periods tend to coincide with periods of political change
• Change in Court today result of Presidential appointments
altering composition
JUDICIARY SUMMARY
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5.
What is the significance of Marbury v.
Madison?
Describe the structure of the federal
judiciary. (3 parts)
What types of cases fall within the original
jurisdiction of the Supreme Court?
What is the difference between judicial
restraint and judicial activism?
How can the Court be checked (Congress,
President, Public opinion)?
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