AP US Government and Politics
Chapter 14: The Judiciary
 In the US, judges play a large role in making policy
o Judicial review – the right of the federal courts to
declare laws of Congress and acts of the executive
branch void and unenforceable if they conflict with the
Constitution
o Strict-constructionist
 Judges should only judge; should only apply rules
that are stated in, or clearly implied by, language
of the Constitution
o Activist
 Judges should discover general principles
underlying the Constitution and its vague
language and apply them
I.
The Development of the Federal Courts
a. Traditional view of civil courts
i. Judged disputes between people who had direct
dealings with each other and decided which of the
two parties was right
ii. Supplied relief to the wronged part usually by
requiring the other to pay money
iii. Based on the understanding that judges would find
and apply existing laws
b. Founders believed in traditional role of judges
i. Thought the judicial branch was least powerful
ii. Judicial review would allow Court the power to
decide if something was unconstitutional, it was
intended to restrict power of the legislative branch
c. Historic eras of the federal courts
i. 1787-1865: nation building, legitimacy of the
federal government, and slavery
ii. 1865-1937: relationship between the government
and the economy
iii. 1938-present: personal liberty and social equality
d. National Supremacy and Slavery (1785-1865)
i. National supremacy
1. Marbury v. Madison (1803), McCulloch v. Maryland
(1819) – Chief Justice John Marshall
2. Major decisions
a. SC could declare an act of Congress
unconstitutional
b. Power granted by the Constitution to the
federal government came from the people
and should be generously construed –
implied powers, “necessary and proper”
c. Federal law supreme over state law
d. Power of federal government to regulate
commerce between states
ii. Slavery
1. Dred Scott v. Sanford (1857) – Chief Justice Roger
B. Taney
a. Slave Dred Scott taken by his owner to a
territory where slavery was illegal under
federal law. Scott claimed since he
resided in free territory he was now a free
man
2. Decision
a. Taney held that blacks were not citizens
of the US therefore Scott could not bring
suit in a federal court.
e. Government and the Economy (1865-1937)
i. Private property
1. 14th Amendment states no state shall “deprive any
person of life, liberty, or property”
a. Person could also be firm or corporation
b. Businesses began to challenge
government regulations
2. Court had to decide what kind of regulations were
permissible
a. Ruled against:
i. Injunctions to stop labor strikes,
federal income tax, antitrust laws,
power of the Interstate Commerce
Commission to set railroad rates,
prohibition of child labor, maximum
work hours
b. Ruled in support of:
i. ICC to regulate railroad rates, railroad
safety laws, antiliquor, mine safety,
workers compensation, regulate fire-
insurance, regulating wages and
hours
3. Difficult to determine “reasonable” versus
“unreasonable” regulation
f. Government and Political Liberty (1938-present)
i. Declared unconstitutional:
1. Laws that restricted freedom of speech, denied
passports to communists, permitted the
government to revoke citizens, withheld mail,
restricted availability of government benefits
ii. FDR and Court packing
1. SC dominated by justices who opposed the welfare
state and federal regulation
2. FDR wanted to get legislation passed, but didn’t
have any Court vacancies to fill
a. Proposed a bill that would allow him to
appoint a new justice for each justice
over age 70 who refused to retire, up to a
total membership of 15
b. Would have allowed him 6 new justices
c. Court, reacting to FDR’s mandate in 1936,
began approving New Deal measures
d. Eventually, FDR would appoint 7 justices
iii. Chief Justice Earl Warren (1953)
1. Activism to redefine the relationship of citizens to
the government and protect the right and liberties
of citizens from government interference
g. The Revival of State Sovereignty
i. States have the right to resist some forms of
federal action (states can refuse to carry out
mandates of the federal government)
II. The Structure of the Federal Courts
a. The Supreme Court
i. Only court required by the Constitution, all other
courts and their jurisdictions are creations of
Congress
ii. Made up of 9 justices, appointed by the president
for life, confirmed by the Senate
iii. Term runs from first Monday in October to
June/early July
1. First 2 weeks of the month, the court sits in
session and hears oral arguments
2. Every Friday and last 2 weeks of the month, the
court sits in recess, discusses cases, votes, and
writes opinions
iv. If 4 justices agree to hear a case, writ of certiorari
is granted; if denied, decision of the lower court
stands
v. Lawyers from both sides submit briefs, amicus
curiae briefs also submitted
1. Brief: sets forth facts of case, lower court
decision(s), arguments for side represented by
lawyer, discusses related cases
2. Amicus curiae – friend of the court brief from
parties not related to case (i.e. interest groups)
3. If the government is party to a case, government
represented by solicitor general
vi. Oral arguments
1. Usually 30 minutes per side, no jury or witness
testimony
2. Justices take this time to ask questions
vii. Opinions
1. Opinion of the Court
a. Majority opinion
b. Written by the Chief Justice if Chief
Justice is in the majority
2. Concurring opinion
a. An opinion on the side of the majority but
with different reasons
3. Dissenting opinion
a. Minority opinion
b. Lower federal courts/Constitutional courts
i. Federal Courts of Appeals
1. 12 total, one in each circuit and one in
Washington, D.C.
2. intermediate courts, must hear all appeals from
district courts
ii. Federal District Courts
1. 94, at least one in each state, Washington D.C.,
Puerto Rico
2. Trial courts – hear civil and criminal matters
c. Selecting Judges
i. Nominated by president, usually of same political
party, and confirmed by the Senate
1. Presidents believe ideology will shape judges
actions
2. Not always the case – judges actions also shaped
by the facts of the case, prior rulings by other
courts, lawyers’ arguments
ii. Senatorial Courtesy
1. Custom that the Senate will not approve a
presidential appointment opposed by a major party
senator from the state in which the appointee will
serve
iii. Litmus Test
1. Presidents try to pick judges who reflect their own
political and judicial philosophy
2. Democratic judges more liberal, Republican judges
more conservative
III. The Jurisdiction of the Federal Courts
a. Dual court system – state and federal
i. Federal court jurisdiction
1. Federal-question cases
a. Cases that involve the United States
government, the United States
Constitution or federal laws, or
controversies between states or between
the United States and foreign
governments
b. Examples: a claim by an individual for
entitlement to money under a federal
government program such as Social
Security, a claim by the government that
someone has violated federal laws, or a
challenge to actions taken by a federal
agency
2. Diversity cases
a. Between citizens of different states, or
between US citizens and those of another
country, must involve damages of
$75,000+
3. Appeals of decision of federal regulatory agencies
4. Bankruptcy
ii. Federal or state jurisdiction
1. Breaking a state and federal law (i.e. robbery of a
federally insured bank)
iii. Dual sovereignty doctrine
1. State and federal authorities can prosecute the
same person for the same conduct
a. Each level of government has the right to
enact laws serving its own purposes
b. Neither level of governments wants the
other to be able to block prosecution of
an accused person
IV. Getting to Court
a. If you’re poor
i. In forma pauperis – if you are without funds, you
can file and be heard as a pauper
ii. If your cause began as a criminal trial in the district
courts and you are poor, the government will
provide a lawyer
iii. If the matter is not criminal and you can’t afford a
lawyer, an interest group may take up the case
b. Fee Shifting
i. Enables the plaintiff to collect its costs from the
defendant if the defendant loses
c. Standing
i. To sue, you need to have standing
1. There must be an actual controversy between
adversaries
2. You must show you have been harmed by the law
or practice
ii. Sovereign immunity
1. Government must give consent before it can be
sued
d. Class Action Suits
i. A case brought into court by a person on behalf not
only of him/herself but of all the other people in
similar circumstances
V. The Power of the Federal Courts
a. The Power to Make Policy – measures of judicial
power
i. Declaring laws unconstitutional
ii. The court changing its mind
1. Stare decisis (“let the decision stand”), principle of
precedent
a. Court case today should be settled in
accordance with prior decisions on similar
cases
iii. Willingness of courts to settle political questions
(matters once left to the legislature)
1. Example: malapportionment of congressional
districts
iv. Remedies
1. Judicial orders setting forth what must be done to
correct a situation that a judge believes to be
wring
2. Remedies today are more far-reaching
a. Example: judge in Alabama heard a case
brought by a prison inmate, judge
ordered the prisoner’s situation be
improved and a revamp of the entire
prison system to improve the lives of all
prisoners
b. Views of Judicial Activism
i. Support it:
1. Argue the courts must correct injustices when
other branches of the government, or the state,
refuse
2. Courts are the last resort for people without the
votes or influence to obtain new laws
ii. Oppose it:
1. Judges don’t have the expertise to rule in the areas
they are ruling in
2. Court-declared rights involve balancing needs of
many groups, raising and spending money,
assessing costs and benefits of alternatives –
things judges aren’t experts in
3. Federal judges are appointed, don’t have power to
legislate
c. Legislation and the Courts
i. Constitution is worded vaguely, judges have used
ambiguities as elastic
ii. Congress passes laws that require interpretation,
adding to the courts ability to design broad
remedies
iii. Congress passed laws that induce litigation
1. Regulatory laws will be challenged by business
groups if they go too far and by consumer or labor
organizations if they don’t go far enough
VI. Checks on Judicial Power
a. Nature of the courts
i. Judges cannot enforce decisions, decisions they
make may be ignored
b. Congress and the Courts
i. Can alter the composition of the courts through
Senate appointments and impeachment, changing
the number of judges (especially increasing and
giving the president more vacancies to fill)
ii. Congress and the states can amend the
Constitution
iii. Repassing a law declared unconstitutional
iv. Power to decide/change/withdraw jurisdiction of
lower courts and appellate jurisdiction of the
Supreme Court
c. Public Opinion and the Courts
i. Court is sensitive to opinion, especially opinions of
elites
ii. Public tends to support the courts when other
branches under attack