Judicial Unit Wrap -Up
Three Types of Law:
• Constitutional
– The Framework
– Article III; Supremacy Clause in Article XI
• Statutory
– (and Delegated Rulemaking Authority)
– The Judiciary Act of 1789
– Title 28 US Code
• Judicial
– COMMON LAW - That which derives its force and authority from the
universal consent and immemorial practice of the people.
– Case Law/Precedent - Law established by subject matter heard in
earlier cases. Binding on lower courts within the jurisdiction.
Precedent
• The judicial practice by which the courts generally follow previous
decisions involving the same issue. (Wasserman)
• A judicial ruling that permits the court ruling settling an old case to
govern the rule used to settle a similar new one (G.Q. Wilson)
• Stare Decisis – to stand on decided cases; the judicial policy of
following precedents established by past decisions. (Schmidt)
Marbury v Madison (1803)
• "It is emphatically the province and duty of the judicial department to say what
the law is."
• — Chief Justice John Marshall
• The Birthright of Judicial Review
McCullough v Maryland (1819)
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The Second National Bank and the state of Maryland
Two elements:
The Supremacy Clause
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• (Judicial Review of STATE activities)
the “Necessary and Proper” clause
– Article 6, Clause 2
– Article 1, Section 8, Clause 18
– (A handy-dandy expansion of federal powers)
The Lower Federal Courts
United States Circuit Courts of Appeals
Eleven Geographic Districts, plus DC, plus one US court of Appeals for the Federal Circuit for a
total of Thirteen Courts of Appeals
Relative Caseloads
• 649 District Court Judges dispose of approximately 260,000 cases
annually
• 179 Court of Appeals Judges dispose of 55,000 approximately
cases annually
State v Federal
• 26 million filings in state courts annually
• 99% of all litigation in the US
God Save This Honorable Court
• No Cases for the first 3 years!
– No Building until 1935
• John Marshall “found the Constitution paper and made it
power” (Garfield)
• Dred Scott 1857 – Overturns an Act of Congress and sets
the stage for WAR
• Roosevelt and the Court Packing Plan 1937-38
Recent Courts
• Warren Court 1953-1969
– Biggest mistake I ever made… (Eisenhower)
– Modern Activist Court
– Brown, Miranda, Baker v. Carr
• Burger Court 1969-1986
– Moderate, Activist Court
– Roe v. Wade, Nixon
• Rehnquist Court 1986-2005
– Conservative, Activist Court?
– Texas v. Johnson, Bush v. Gore
Nominations
• President Nominates; Senate Confirms (Art. II, S. 2 (2))
• Why is this such a political “hot potato”?
– Because “only in the United States do judges play so large a role in making
public policy” (James Q. Wilson)
• Senatorial Courtesy
• 147 Justices submitted, 29 failed to be confirmed (7 in the last
hundred plus years)
• “Borking”, paper trail, “litmus” tests
• “The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour “(Article III, Section1)
Work My Fingers to the Bone
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Term begins the “First Monday in October”
Generally done by June or early July
8,000 petitions filed per term
(plus 1,200 other applications)
Less than 100 cases actually heard each session – 50ish for the Robert’s Court
I Have Decided…
• Affirm
• Reverse (or Void)
• Remand
You Say Tomato…
Types of Opinions:
• Unanimous
• Majority
• Concurring
• Dissenting
• Per Curium
More Terminology
• Jurisdiction – the authority of a court to hear and decide a case
– Geographic
• What Courts of Appeals is your District Court within?
– Subject matter
• Criminal or Civil?
• Writ of Certiorari
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An order for a lower court to send up the records of a case for review
It means, in Mom speak, “We’ll see”
Rule of 4: Four justices must approve for a writ to be issued
(95% of requests are rejected)
• Standing
– You must have a sufficient stake in the matter to justify bringing suit
– The party bringing the suit must have suffered harm or threat of harm
– Must be “justiciable”, not hypothetical or academic
Straight from the Home Office in Wahoo,
Nebraska
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– Marshall Court:
Marbury v. Madison 1803
McCulloch v. Maryland 1819
Gibbons v. Ogden 1824
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Dred Scott v. Sanford 1857
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Plessy v. Ferguson 1896
– Taney Court
– Fuller Court
– And Harlan’s dissent
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– Warren Court:
Mapp v. Ohio 1961
Baker v. Carr 1962
Brown v. Board of Education 1954
Gideon v. Wainwright 1964
Miranda v. Arizona 1966
– Burger Court:
Roe v. Wade 1973
Nixon v. US 1974
UC v. Bakke 1978
– Rehnquist Court:
Bush V. Gore
What Do You Mean By Supreme?
• Nor does this conclusion by any means suppose a superiority of
the judicial to the legislative power. It only supposes that the power
of the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that of
the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by
those which are not fundamental.
• Federalist #78, Alexander Hamilton
I’m So Glad You Asked
• "It is emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each."
— Chief Justice John Marshall
Judicial Review
What is Judicial Review?
• The power of the federal courts to test federal and state legislative
enactments and other actions by the standards of what the
Constitution grants and withholds. (findlaw)
• The power of the courts to declare acts of the legislature and the
executive unconstitutional, and therefore null and void. (Wasserman)
How Many Times Do I Have To Tell You???
• Federal Laws Overturned
– About 200
• Judicial Rulings NOT held to as Precedent
– 140 cases since 1810
• (JQ Wilson)
Three Eras, Three Sets of Questions:
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1787 – 1865 Dominant Issues
– Nation Building
– The Legitimacy of the Federal Government,
– Slavery
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1865-1937 Dominant Issue
– The relationship between Government and the economy
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1938-present Dominant Issues
– Personal Liberty
– Social Equality
– Balancing Liberty and Equality
Limits on the Court
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No initiative
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No Army
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They won’t do Political Questions
– The Court must wait for someone with standing to bring suit
– How exactly does the Court ENFORCE its decisions?
– (really, they won’t, honest, hardly ever…)
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Checks and Balances:
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Impeachment
Appointments/Confirmations
Judicial Structure, Number of Judges (152 new judgeships in 1979)
Really specific legislation – no room for interpretation
Constitutional Amendments (11,13,14,16,26)
Restricting Jurisdiction
True Constitutional Questions are rare.
And yet…
Sources of Strength for the Court
• Enormous Prestige
– More than half have “a great deal” or “quite a lot” of confidence in the Court.
– The “guardians of the Constitution”
• Our Fragmented Constitutional Structure
– Creates the need for an umpire
– Athletes – are umpires neutral?
• A HUGE Constituency – Lawyers
– Look at page 143
– Washington Lawyers: 1972 – 11,000; 1994 – 63,000
– An Observation by Sandra Day O'Connor
"There is no shortage of lawyers in Washington, DC. In fact, there may be more lawyers
than people."
Great- Great-Uncle Hugo Makes a Statement
about Judicial Review:
• "Our Constitution was not written in the sands to be washed away
by each wave of new judges blown in by each successive political
wind."
The New Kid Speaks:
• Judges are not politicians who can promise to do certain things in
exchange for votes.
• -Justice John Roberts
Senate Judiciary Committee Hearings, Day One
Thank You, Dr. Jack Shock
(To the tune of Jesus Loves Me)
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Breyer
Ginsburg
Kennedy
Alito
Roberts; he’s the chief
Scalia
Souter (spelled ou)
Stevens
Thomas, that’s our crew!
Supreme Court Justices, Supreme Court Justices, Supreme Court
Justices, they wear black robes for YOU!
Question Time
Supreme Questions
Why Nine?
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The Constitution does not specify the number of justices on the Supreme Court, leaving the issue to
Congress. The first Supreme Court in 1789 consisted of five justices. Initially the justices’ duties included
traveling through the country to hear cases in federal circuit courts. Congress added a sixth seat in 1790
and a seventh in 1807 to ease the strain on justices as the number of circuit courts increased. Congress
added the eighth and ninth seats in 1837. Membership stayed at nine until 1863, when Congress added
a tenth seat, only to abolish it when a justice died in 1865. In 1867 Congress reduced the seats to seven
to limit the opportunity of President Andrew Johnson to appoint new members. Congress restored the
number of seats to nine in 1869, and in 1891 abolished the Supreme Court justices’ circuit-riding burden.
The number of justices has remained fixed at nine, making tie votes unlikely unless circumstances
prevent a justice from participating in deliberations.
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