…and Justice For All
The Adversarial System
 Courts settle civil disputes
between private parties, a
private party and the
government, or the United
States and a state or local
government.
 Each side presents its position.
The court applies the law and
decides in favor of one or the
other.
Prosecuting the accused
 Courts also hold criminal
trials for people accused of
crimes.
 Witnesses present
evidence and a jury or a
judge delivers a verdict of
guilt or innocence.
Rights of the Accused
 All accused people have the right to a
public trial and a lawyer. If they
cannot afford a lawyer, the court will
appoint and pay for one. (Gideon v.
Wainwright, 1963)
 Accused people are considered
innocent until proven guilty. They
may ask for a review of their case by a
higher court if they think the
court has made a mistake. This
review is called an appeal.
The American Legal System
 The goal of the legal system is equal justice under the
law.
 This goal is difficult to achieve.
 Why is the goal of equal justice under the law difficult
to achieve?
The US
Federal
Court
System
U.S. District Courts
 District courts are the federal
courts where trials are held
and lawsuits are begun.
 All states have at least one.
 For all federal cases, district
courts have original
jurisdiction, the authority to
hear the case for the first time.
•District courts hear both civil and criminal
cases.
•They are the only federal courts that involve
witnesses and juries.
U.S. Courts of Appeals
 People who lose in a district court often appeal to the
next highest level—a U.S. court of appeals.
 Appeals courts review decisions made in lower
district courts. This is appellate jurisdiction—the
authority to hear a case appealed from a lower court.
The US Circuit Court of Appeals
 Each of the 12 U.S. courts of appeals covers a
particular geographic area called a circuit. A
thirteenth appeals court, the Court of Appeals
for the Federal Circuit, has nationwide
jurisdiction.
 Appeals courts do not hold trials. Instead, a
panel of judges reviews the case records and
listens to arguments from lawyers on both
sides.
 The judges may decide in one of three ways:
uphold (AGREE) the original decision, reverse
(disagree) the decision, or remand the case—
The Supreme Court
Justices
 The main job of the nation's top court
is to decide whether laws are
allowable under the Constitution.
 The Supreme Court has original
jurisdiction only in cases involving
foreign diplomats or a state. All other
cases come to the Court on appeal.
 The Court chooses the cases it hears
through the writ of Certiorari.
 The Court chooses the cases it hears.
In cases the Court refuses to hear, the
decision of the lower court stands.
The Current Supreme Court
 The president appoints Supreme Court justices, with
Senate approval.
 The president's decision may be influenced by the Justice
Department, American Bar Association, interest groups,
and other Supreme Court justices.
 The court has final authority on cases involving the
constitution, acts of Congress, and treaties.
 Eight associate justices and one chief justice make up the
supreme court.
Service
Name, state
Antonin Scalia, DC
Birth
Assoc.
Chief
Justice
Justice
Place
Date uReligion
N.J.
1936
Roman Catholic
Calif.
1936
Roman Catholic
Ga.
1948
Roman Catholic
N.Y.
1933
Jewish
Calif.
1938
Jewish
N.Y.
1955
Roman Catholic
2006–
N.J.
1950
Roman Catholic
2009–
N.Y.
1954
Roman Catholic
2010–
N.Y.
1960
Jewish
1986–
Anthony M. Kennedy, 1988–
Calif.
Clarence Thomas,
1991–
DC
Ruth Bader Ginsburg, 1993–
DC
Stephen G. Breyer,
1994–
Mass.
John G. Roberts,
2005–
DC
Samuel A. Alito, Jr.,
N.J.
Sonia Sotomayor
N.Y.
Elena Kagan N.Y.
Powers of the Court
 The Court's main job is to decide whether laws and
government actions are constitutional, or
allowed by the Constitution. It does this through
judicial review—the power to say whether any
law or government action goes against the
Constitution.
 The legislative and executive branches must follow
Supreme Court rulings. Because the Court is
removed from politics and the influences of
special-interest groups, the parties involved in a
case are likely to get a fair hearing.
Marbury v. Madison
 The Constitution does not
give the Supreme Court the
power of judicial review. The
Court claimed the power
when it decided the case
Marbury v. Madison.
 As President John Adams
was leaving office, he signed
an order making William
Marbury a justice of the
peace. The incoming
president, Thomas Jefferson,
refused to carry out the
order. Marbury took his case
to the Supreme Court.
The Power of Judicial Review
 In the Court's opinion, Chief Justice John
Marshall set forth three principles of judicial
review:
 (1) The Constitution is the supreme law of the
land.
 (2) If a law conflicts with the Constitution, the
Constitution rules.
 (3) The judicial branch has a duty to uphold the
Constitution. Thus, it must be able to
determine when a law conflicts with the
Constitution and nullify that law.
 Through its rulings, the Supreme Court
interprets the meaning of laws, helping the
police and other courts apply them.
Limits on the Courts' Power
 The Court depends on the executive branch and state
and local officials to enforce its decisions. Usually they
do.
 Congress can get around a Court ruling by passing a
new law, changing a law ruled unconstitutional, or
amending the Constitution.
 The president's power to appoint justices and
Congress's power to approve appointments and to
impeach and remove justices serve to check the power
of the Court.
 The Court cannot decide that a law is unconstitutional
unless the law has been challenged in a lower court and
the case comes to it on appeal. The Court accepts only
cases that involve a federal question. It usually stays
out of political questions. It never considers guilt or
Websites
 http://supremecourt.c-
span.org/Video/VirtualTour/SC_VT_EastPediment
.aspx
 http://www.pbs.org/wnet/supremecourt/index.ht
ml
 http://www.youtube.com/watch?v=Unyswl36q8w
The Supreme Court
 The Supreme Court of the United States is often
referred to as the “Court of Last Resort,” because it
is the highest court in the United States; there is
no court with higher authority.
 Also, except for specific limited case types
specifically listed in Article III of the Constitution,
all cases that reach the Supreme Court have been
heard and are on appeal from the decisions of
lower courts across the nation.
Steps to the Supreme Court
 Once a case works its way through the lower courts, a party may
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petition to have their case heard by the Supreme Court.
However, the Supreme Court of the United States has great latitude in
which cases it will hear.
The Supreme Court receives thousands of requests to hear cases, which
are called petitions for certiorari. Of these many requests, the Justices
will agree to hear only a handful, generally less than 100, cases per
term.
The Supreme Court’s term begins the first Monday of October and
ends the first Monday of October the following year.
In order for a case to be heard before the Supreme Court, four of the
nine Justices of the court must agree to hear the case.
Steps to the Supreme Court
 If certiorari is granted, the time frame for the parties
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involved in the case is set.
The petitioner (the party that has requested the Court
review the case), has 45 days to file their “brief on the
merits”, which lays out their arguments to the court.
The respondents (the other party) then has 30 days to
respond.
Amicus (friend of the court) brief filing deadlines are a
few days after the deadline for the side that they
support.
These times are set by the rules of the Court, and may
only be extended with the permission of the Court.
Steps
to
the
Supreme
Court
The next step for the case will be oral arguments before the
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Supreme Court.
The case will be placed on the Court’s calendar for some time in
the Fall or the Spring.
And when the day comes, one attorney for each side will stand
before the Justices for their oral argument and will present their
case to the Justices.
The attorneys will have only a set time (generally 30 minutes
apiece) to plead their case before the Court.
However, any Justice may interrupt at any point to ask questions or
debate a point with the attorney; so the attorney must think
quickly on their feet, and know the law and their case inside and
out.
So even though an attorney has 30 minutes to plead their side of
the case, Justices’ questions and attorneys’ answers can go on for
much longer.
Steps
to
the
Supreme
Court
 After oral arguments, the Court will deliberate
on the matter, and will release a written opinion
at some point before the term in which the case
was argued ends.
 Opinions are generally released on Thursdays,
but it is not known when the opinion for a
specific case will be released.
 Once the opinion is released, it will represent
the law of the land, and creates precedence that
will shape future laws and court decisions that
are binding throughout the United States of
America.
The Supreme Court
Amendment Cases
st
1
 By law, the Court opens the first Monday in October of each year.
The session usually ends in June.
 2012 Calendar
 Morse v. Frederick
 Bond v. Floyd
 Engle v. Vitale
Impact
 The Supreme Court decisions involving the
rights identified in the first ten amendments of
the United States Constitution can have a
profound effect on one’s personal freedoms (or
liberties).
 The Court’s decision may strengthen, weaken,
or somehow alter our right of free speech,
freedom of religion, freedom of the press, etc.
 Individual rights may be weakened for the
benefit of the majority, or majority rights are
weakened for the benefit of the minority.
Supreme Court Justice for the Day
 Use the following websites to find a Supreme Court case
decided on First Amendment grounds.
 The case must relate to speech, expression, religion,
assembly, petition, and press.
a.Legal Information Institute’s Supreme Court
Collection
(http://www.law.cornell.edu/supct/cases/topic
s/tog_first_amendment.html)
b.Oyez (http://www.oyez.org/)
c.Supreme Court of the United States
(http://www.supremecourtus.gov/)
Supreme Court Justice for the Day
 Once you choose a Supreme Court Case, check in
with me for approval
 Once your case is approved, find the decision using
one of the above sites.
 Read and summarize the majority and minority
opinions.
 After the case has been read, decide whether to side
with the majority or minority opinion.
 Then draft an opinion encompassing the following
elements:
 Identify the First Amendment right in question.
 Summarize the facts or history of the case, the key issue(s)
involved, and the decision of the Court, including a
summary of the majority and minority opinions.
 Identify and defend you vote by writing an opinion
supporting you decision. In addition, state whether you
opinion will strengthen or weaken the First Amendment
right in question.
 The opinion should be typed-written, double
spaced, and not exceed 750 words. In addition, you
will present a summary of your opinion during the
next class period if time permits.
Political Institutions:
The Courts
INTRODUCTION TO THE FEDERAL
COURTS
 Types of law
 Statutory: deals w/written statutes (laws).
 Common.
Based upon a system of unwritten law.
 Unwritten laws are based upon precedents.
Judges rely upon the principle of stare decisis ("let
the decision stand"), i.e. they rule according to
precedent.
 This is the basic system of law in Britain.
Criminal: concerns violations of the criminal code,
i.e., violations against society.
Civil: concerns disputes (torts) between two
parties rather than violations against society.
 Examples: breach of contract, slander,
medical malpractice.
 Writ of mandamus: court order for one
party to perform a certain act.
Injunction: court order that forbids a party to
perform a certain act. A class action lawsuit
involves a suit brought by a group of people who
share a common grievance.
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THE FEDERAL COURTS
 Judicial power is passive.
 A. Courts cannot reach out
and "take" cases. Cases must
come to them.
 B. There must be an actual
case (“controversy”) for a
court to make a ruling.
Courts cannot “create” cases.
 Only those with standing may
challenge a law or govt. action,
i.e., only one who has sustained
or is near sustaining an "injury"
may bring a case to court. One
cannot challenge a law simply
because one does not happen to
like it.
FEDERAL COURTS
 Judicial law-making.
 Judges, contrary to what some may
think, are not simply impartial referees
who only carry out the law. Judges
interpret the law, and in so doing in
fact make law. It is necessary that they
make law because:
 Statutes are often broadly-worded,
unclear, or contradictory.
 The Constitution is certainly
broadly-worded, and requires
interpretation.
 Thus, interpretation of statutes and
the Constitution is, in effect, making
law: "The Supreme Court is the
Constitution." (Justice Felix
Frankfurter)
 "The Supreme Court is a constitutional convention
in continuous session.“ (Woodrow Wilson)
 Evidence of judicial law-making.
 Courts have ruled > 1000 state laws as being
unconstitutional.
 Courts have ruled > 1300 federal laws as being
unconstitutional.
 The Supreme Court has reversed itself >200 times
since 1810.
 Courts, since the 1960's, increasingly seem willing
to rule on political questions rather than solely on
legislative or constitutional questions (e.g., Baker
v. Carr, Wesberry v. Sanders, Shaw v. Reno, Bush v.
Gore).
THE FEDERAL COURTS
 Jurisdiction: 4 types:
 Exclusive: sole authority of a federal
court to try a case.
 Concurrent: authority of both a
federal and a state court to try a case.
 C. Original: authority of a court to
first try a case.
 D. Appellate: authority of a court to
hear a subsequent appeal.
 Jurisdiction of federal courts. Federal
courts may try a case if it involves:
 The Constitution, a federal law, or a
treaty.
 Admiralty law (matters on high seas)
or maritime law (matters on land but
relating to water).
 Disputes between two or more states.
 The U.S. government as a party.
 Citizens of different states.
 Ambassadors or diplomats..
THE FEDERAL COURTS
 Dual system of courts: In our federal
system, we have both federal and state
courts.
 We are only going to focus on the federal
courts.
 Structure of the federal court system.
 Two types of federal courts.
 Article I (legislative, or special)
courts.
 Created to carry out the
enumerated powers of Congress.
 Judges in these hold fixed, not life,
terms of office.
 Examples of these courts:
 Claims Court: hears lawsuits against
the federal government.
 Court of Military Appeals.
 District of Columbia Courts.
THE FEDERAL COURTS
 Article III (constitutional) courts.
 Article III of the Constitution deals with the judiciary, and
creates a Supreme Court while also giving Congress the
power to create "inferior" (lower) courts. These three levels
of courts form the main basis of our federal court system.
 Judges in these courts hold life terms.
 The three levels of constitutional courts:
 District Courts:
 Handle 90% of all federal cases.
 4 such courts, ~610 judges.
 Cases are tried by a judge and jury.
 Use grand juries to issue indictments (orders that charge
an individual with a crime. Does not mean that one is
guilty; it merely means that one will be tried.)
 A petit (trial) jury decides the outcome of a case.
 Use magistrates, who issue warrants, hold preliminary
hearings, and set bail.
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Jurisdiction: original.
May try civil, criminal, or constitutional cases.
Decisions may be appealed to Courts of Appeals.
Recent problems of high turnover among judges.
THE FEDERAL COURTS
 Courts of Appeals (Circuit
Courts).
 Are 12 of these, spread
out in 12 districts, or
"circuits."
 156 judges try > 18,000
cases a year.
 Cases heard by a panel
of three judges, except
when all judges of a
Circuit Court hear a
case "en banc."
 Jurisdiction: appellate.
Hears appeals from
District Courts and
regulatory commissions.
 Decisions may be
appealed to the Supreme
Court.
 Supreme Court: covered
later.
FEDERAL ATTORNEYS AND JUDGES
 Federal attorneys.
 Attorney General.
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Appointed by President w/Senate consent.
Head of Justice Dept.
 Solicitor General.
 Appointed by President w/Senate consent.
 Represents U.S. government in Supreme Court.
 Decides which cases the federal government will appeal to
the Supreme Court.
 Decides the federal government's position in these cases.
 Sometimes called the “10th Justice” of the Supreme Court
because of his influence there.
FEDERAL ATTORNEYS AND JUDGES
 U.S. Attorneys.
 At least one for each District
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Court, 94 in all.
Prosecutes federal criminal
cases before the District
Courts and Courts of
Appeals, though most cases
are settled by pleabargaining.
Represents U.S. government
in civil cases before these
same courts.
Appointed by the President
for 4-year terms. Key
patronage positions.
Senatorial courtesy applies in
their appointments.
FEDERAL ATTORNEYS AND JUDGES
 Federal judges.
 Appointed by President with
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“advice and consent” of
Senate.
Article III states that they shall
hold their offices "during
good behavior," i.e., for life.
They can, however, be
impeached and removed by
Congress (very rare -- only a
handful of removals in >200
years).
Compensation: Determined by
Congress, though compensation
cannot be lowered during
judges' terms of office. 2009
salaries:
District Court: $169,300
Courts of Appeals: 179,500
Supreme Court: 208,100 (Chief
Justice: 217,400).
FEDERAL ATTORNEYS AND JUDGES
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Factors affecting selection of federal judges:

Senatorial courtesy: When appointing for the
District Court, the President must consult with
the two Senators from the state in which they are
to be appointed. The Senate will then show
“courtesy” to those two senators by not
confirming judges to whom the two senators
object.
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Senate Judiciary Committee:

Screens the nominees, and sends a
recommendation to Senate floor for approval
or rejection.

In recent years, has given more scrutiny to
appointments, particularly those at the
Supreme Court level (e.g., Bork hearings (“the
“Bork Battle”), Clarence Thomas "high-tech"
lynching (“the Thomas Tangle”). These
disputes led to the nomination of David
Souter (the “Souter Solution”). The committee
held up confirmation of many of Clinton’s
lower court judges for months, and even years
(44 months in one case). Use of “hold.”
Democrats returned the favor by filibustering
some of Bush 43 nominations
Robert Bork Rejected for
Supreme Court
FEDERAL ATTORNEYS AND JUDGES
 Senate: Majority vote needed for confirmation.
Has refused to act upon, or has rejected, ~21% of
Supreme Court nominees in the 20th century.
Political parties: judges are generally from the
same political party as the President.
FEDERAL ATTORNEYS AND JUDGES
 Diversity:
 Race:
 Mostly white.
 Carter appointed more minorities than all the
previous Presidents combined. Clinton also
appointed numerous minorities to the fed. bench
 "Black seat" on the Supreme Court was established
by Thurgood Marshall ---> Clarence Thomas. 17%
of Clinton’s appointments were black.
 Sex:
 Mostly male.
 Carter appointed more women than all the previous
Presidents combined. 25% of Clinton’s appts.
female
 With retirement of Sandra Day O’Connor, one
woman (Ruth Bader Ginsburg) was on the Supreme
Court during the latter part of the Bush
Administration.
 With retirement of David Souter, another woman
(Sonia Sotomayor) was added to the Supreme
Court.
FEDERAL ATTORNEYS AND JUDGES
 Age: Since judges have lifetime appointments, judges
may live on long after the Presidents who appoint
them die. (Pres. influence continues after they leave
office.)
 Ideology of prospective judges.
 a. Presidents generally try to appoint people of
similar philosophy.
 This is difficult to ensure, however:
 Predicting future behavior on the part of
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judges is at best an imperfect science.
New issues may arise which the President
could not have possibly considered.
Since judges have life terms, Presidents can do
nothing about decisions they do not like.
Approximately 25% of Supreme Court judges
"stray" from the philosophy that had been
anticipated by the Presidents who appointed
them (e.g., Warren, Brennan, Souter).
Ideology also can affect the decision of a judge
to retire, e.g., a judge may want to delay
retiring until there is a President with a more
favorable philosophy.
Ike’s “biggest mistake:” Earl
Warren
FEDERAL ATTORNEYS AND JUDGES
 American Bar Association evaluates
nominees. Not used by Bush 43, but
Sen. Judiciary Committee still
considers ABA ratings
 Existence of a "paper trail," e.g., with
Robert Bork (“the Bork Battle”). If a
prospective judge has written
extensively, his writings may be used
against him during confirmation
hearings. Bush 41, for example, did
not want to undergo a confirmation
hearing battle with a nominee who
had an extensive paper trail, so he
played it safe by nominating David
Souter, who was such an unknown
that he was dubbed the "stealth
candidate" (“the Souter Solution”).
FEDERAL ATTORNEYS AND JUDGES
 Number of judges: Congress can increase or
decrease the number of courts and judges. If it
has a President of the same party, it would be more
likely to increase the number than if it has a
President of the opposing party. If it had a VERY
undesirable President, it could reduce the number
of judges by not allowing vacancies to be filled of
judges who had retired or died. This was done by
Congress in the Andrew Johnson administration,
when the size of the Supreme Court shrank from 9
to 7.
THE SUPREME COURT
 Background.
 Only court mentioned in Const. (Article III).
 Consists of 8 Associate Justices and 1 Chief
Justice.
 Number of Justices is set by Congress.
 When position of Chief Justice is vacant, the
President can appoint someone already on the
Court (e.g., Rehnquist) or someone who is not
on the Court (e.g., Roberts)
 Highest court in the land -- the court of last resort.
THE SUPREME COURT
 Key powers:
 Power of judicial review
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(established by Marbury v.
Madison, 1803).
More than 1000 state laws have
been declared unconstitutional.
More than 1300 federal laws have
been declared unconstitutional.
Some presidential actions have
been declared unconstitutional.
Power to interpret broadlyworded laws of Congress and the
Constitution.
Power to overrule earlier
Supreme Court decisions (e.g.,
Brown v. Board overturning
Plessy v. Ferguson
THE SUPREME COURT
 Jurisdiction.
 Original: in cases
involving: States.
 Ambassadors.
 Appellate: in cases
from:
 Courts of Appeals.
 State supreme courts.
 -- Cases from appellate
jurisdiction are far more
numerous than from
original jurisdiction.
THE SUPREME COURT
 How cases reach the Supreme Court.
 Supreme Court controls its own docket.
 Thousands of requests are made for
Supreme Court decisions, but
relatively few requests are granted.
Recent trend is for even fewer cases to
be accepted each year. (~80 per year).
Rule of 4: In order for the Court to
decide a case Justices must agree to
do so. Denying a decision may mean
any number of things:
 Case lacks a substantial federal issue.
 Party lacks standing.
 Court agrees with a lower court.
 Case is a "political hot potato" that
the Court does not want to touch.
THE SUPREME COURT
 When a party requests a Supreme Court decision, it files
a petition for a writ of certiorari ("to be made certain”).
These petitions are screened by the Court's law clerks,
and then reviewed by the Justices on the rule of 4 basis
noted above.
 When the Justices accept a case, they then decide
whether to ask for more information and oral arguments
from the attorneys or whether to decide the case quickly
on the basis of the attorneys briefs. Cases decided
without further information are announced with a per
curiam opinion. This is a very brief unsigned statement
of the Court's decision.
THE SUPREME COURT
 Term begins on first Monday in
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October and continues until the
end of June.
Hears cases from MondayThursday. Quorum of 6.
Before oral arguments, the
Justices read the attorneys'
briefs.
Justices also read amicus curiae
("friend of the court") briefs.
Justices hear 30 minute oral
arguments from each side.
At the Friday conference,
Justices discuss the cases.
Simple majority needed for
decisions. In case of ties,
previous court decision stands.
“The Drug Free Schools Act” Was An
Amicus Curiae Brief
THE SUPREME COURT
 Written opinions:
 Types:
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Unanimous: expresses opinion
of all nine Justices. ~1/3 of the
cases are decided by a 9-0 vote.
Majority: expresses opinion of
majority.
Dissenting: expresses opinion of
minority. If the Court later
overturns itself, it may draw
upon a minority opinion for its
reasoning.
Concurring: written by a Justice
who agrees with majority's
conclusions, but for different
reasons.
THE SUPREME COURT
 Assigning of opinions.
If Chief Justice voted with the majority,
he assigns someone in the majority to
write the opinion.
 If the Chief Justice is in the minority, the
most senior Justice among the majority
assigns the opinion.
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THE SUPREME COURT
 The politics of opinion-writing.
 Assigning the opinion is a key power of
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the Chief Justice: it enables the Chief
Justice to get the right "slant" on the issue.
Majority opinion writer must be careful
not to alienate others in the majority,
because they may change their minds and
switch positions.
The majority opinion writer must
therefore structure the argument in such
away as to keep the support of at least
four other intelligent, independent
Justices, any of whom may threaten to
"jump ship" and switch his/her vote.
Threat of a dissenting opinion can
sometimes convince the majority to bend
a bit in certain parts of the decision.
Chief Justice Rehnquist Wore Stripes
THE SUPREME COURT
 Purposes of opinions.
 Communicate the
Court's reasoning to the
public.
 Establish precedents for
future cases -importance of stare
decisis.
 Drop "hints" that
Congress, the states, or
the President should
take certain actions,
e.g., “In the absence of
any action by Congress
...”
THE SUPREME COURT
 Possibility of evading Court decisions: The
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Supreme Court is the highest court in the land,
but it is possible of evading Court decisions:
Amending the Constitution. The Court
cannot strike down something as
unconstitutional if it is in the Constitution!
When a decision is made, it is "remanded" to a
lower court to carry out the Supreme Court's
decision. The lower court will have a certain
amount of leeway in doing this.
The executive branch may simply not carry out
the decision (e.g., Jackson's famous line: "John
Marshall has made his decision. Now let him
enforce it.")
State and local governments may simply not
carry it out, either (e.g., desegregation, school
prayer)
"The Constitution may be what the Supreme
Court says it is, but a Supreme Court opinion is
what a trial judge or a policeman or a school
board or a city council says it is."
THE SUPREME COURT
 Voting blocs on the current
Supreme Court.
 Liberals
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Elena Kagan
Sonia Sotomayor
Stephen Breyer
Ruth Ginsburg
 Conservatives.
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John Roberts
Antonin Scalia
Clarence Thomas
Samuel Alito
Associate Justice Sonia Sotomayor
THE SUPREME COURT
 Swing/moderate
conservative.
 Anthony Kennedy
Swing Vote Anthony Kennedy
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Judicial activism.
 Philosophy that the courts
should take an active role
in solving society’s
problems.
 Courts should uphold the
"guardian ethic:" they act
as a guardian of the
people.
Examples of Judicial Activism
 Striking down Topeka School Board’s policy of seg. in
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Brown v. Board (1954)
Striking down a Texas law that banned flag burning in
Texas v. Johnson, 1989, and then striking down a
congressional law that banned flag burning (US v.
Eichmann)
Striking down the Gun Free School Zones Act in US v.
Lopez, 1995.
Striking down line item veto in Clinton v. NY 1998
Striking down Florida recount in Bush v. Gore 2000
Striking down state death penalties for mentally retarded
in Atkins v. Virg., 2002
Striking down a Texas sodomy law in Lawrence v. Texas
Striking down a DC city ordinance banning handguns in
DC v. Heller, 2008
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Judicial restraint.
 Philosophy that the courts should
allow the states and the other two
branches of the federal government
to solve social, economic, and
political problems.
 Federal courts should act only in
those situations where there are clear
constitutional questions. They
should otherwise defer to elected
lawmakers.
 Courts should merely interpret the
law rather than make law.
 Suggests that courts should follow
original intent of Founders: decide
cases on basis of what the Founders
wanted.
Associate Justice Antonin Scalia is a Strong
Proponent of Judicial Restraint
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Historical developments.
 In 20th century, prior to 1937,
liberals complained about the
conservative Court being too
activist when it struck down
various reform-minded laws
(e.g., minimum wage, banning
child labor, NRA, AAA).
 FDR responded with his
"court-packing" attempt in
1937 ---> failed, but the Court,
in its famous "switch in time
that saved nine," began to
accept New Deal legislation.
FDR “Packing Event” Characterized in Satire
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Now, it was the conservatives who began to
complain about the liberal Court being too activist,
especially with the advent of the Warren Court
(1954-1969).
 Conservatives began to complain about the Court's
judicial activism in:
 Rights of the accused, e.g., requiring the police
to issue "Miranda warnings."
 Civil rights, e.g., desegregating public schools in
Brown v. Board.
 Civil liberties, e.g., of prohibiting prayer in
school.
 Political issues, e.g., Baker v. Carr, 1962.
 The Burger Court (1969-1986) was less activist
than the Warren Court, but still upset
conservatives with decisions such as Roe v. Wade
and UC Regents v. Bakke
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 We have now come full circle
because the Rehnquist Court
(1986-2005) was accused by
liberals of being too activist -when it overturns liberal
precedents, liberals accuse the
Court of being excessively
activist, e.g.:
 Overturning Gun Free
School Zones Act
 Overturning Florida
Supreme Court decisions in
election of 2000
 Overturning California’s
Proposition 215 that legalized
medical use of marijuana
 Similar views are held about the
Roberts Court (2005 – present),
e.g. DC v. Heller
Chief Justice Rehnquist
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Restraints on judicial
power.
 Courts can make
decisions, but cannot
enforce them
 Courts cannot reach out
and take cases, but must
wait for the cases to
come to them.
 Courts can rule only on
real, live controversies.
They cannot “create”
cases.
 Presidential
appointment of judges
How Much Judicial Restraint for CJ John
Roberts?
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Congress.
 Senate confirmation of judges.
 Impeachment and removal.
 Increasing the number of courts
and judges, and thus the type of
judges to Congress' and the
President's liking. For example, in
1979, Congress (Democratic)
created 152 new District and
Appeals Court positions. Coupled
with resignations and retirements,
President Carter (Democratic)
ended up appointing 40% of all
federal judges during his one term
of office.
 Passing constitutional
amendments (e.g., 14th
Amendment overturned the Dred
Scott decision, 16th Amendment
allowed for an income tax that the
Supreme Court had struck down in
the late 19th century).
Patrick Leahy, Chairman of the Senate
Judiciary Committee
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Congress (continued)
 Re-passing a law that was
unconstitutional in hopes that the
Supreme Court will change its mind.
 Determining the jurisdiction of the
courts -- what kinds of cases the courts
can and cannot have. Article III, Section
2 of the Constitution may give Congress
the power to prevent the Supreme Court
from hearing certain types of cases (“In
all other cases … the Supreme Court
shall have appellate jurisdiction …with
such exceptions … as Congress shall
make.”)
 Stare decisis.
 Existing laws.
Flag Defamation versus Free Speech
JUDICAL ACTIVISM V. JUDICIAL RESTRAINT
 Public opinion: The
Supreme Court probably
does not "follow the
election returns“ in the
short run because the
Justices were appointed by
previous Presidents for life
terms. In the long run,
however, the Court will
probably reflect public
opinion because the
Justices are appointed by
Presidents who were
elected by the people
 Federalist Papers