Only in the United States do judges
play so large a role in making public
policy
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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.
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Judicial review is the federal courts’ weapon in the
system of checks and balances on which our system is
based.
No one would deny that the courts have the right to
rule acts of legislative or executive unconstitutional
but what is controversial is the method by which
such review is conducted.
There are two competing views
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Judges should confine themselves to applying
those rules that are stated in or clearly implied
by the language of the Constitution
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This does not mean that a judge that use this method
is conservative. Judges can be political liberal and
still believe that they are bound by the language of
the Constitution.
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Judges should discover the general principles
underlying the Constitution and its often vague
language, amplify those principles on the basis
of some moral or economic philosophy, and
apply them to cases.
Have the a duty to use their best judgment in
deciding what is good public policy.
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Most of the Founders probably expected the Supreme
Court to have the power of judicial review, but they
did not expect federal courts to play so large a role in
making public policy.
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Traditional view of courts was that disputes would be judged
and the court would rule based on existing law.
The purpose of a court case was not to learn what the judge
believes but what the law requires.
Judicial activism started when judges question the traditional
view and argued instead that judges do not merely find the
law, they make the law
The view that judges interpret the law and do not make policy
made it easy for the founding fathers to justify the power of
judicial review and led them to predict that the courts would
play a relatively neutral role in public affairs.
 Alexander Hamilton Federalist No. 78
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Things have changed since the time of Hamilton. The
evolution of the federal courts, especially the Supreme
Court, toward the present level of activism and
influence has been shaped by the political, economic,
and ideological forces of three historical eras.
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1. 1789-civil war the dominant interest of the Supreme Court
was in that greatest of all questions nation-state relationship
 Chief justice John Marshall gave the answer national law was in
all cases the dominant law, with state law having to give way.
And the court had the power to decide what the Constitution
meant
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Marbury v Madison
McCulloch v Maryland
Gibbons v Ogden
Scott v Sanford
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2. From the end of the civil war to the early years of the new deal
the Supreme Court was dealing with the deciding when the
economy would be regulated by the states and when by the
nation.
 The court was to define the scope of power of both the federal and state
governments.
 Property question became dominant
 14th amendment. Primarily to protect African Americans claims to citizenship. Also
protect private property and the corporation from unreasonable state action.
 The crucial phrase was that no state shall deprive any person of life, liberty, or
property without due process of law.
 Person could be a corporation as well as an individual business and industry
started to flood the court with cases challenging various government regulations.
 The court found itself ruling on the constitutionality of virtually every effort by any
government to regulate any aspect of business or labor
 Judicial activism was born first 75 years 2 federal cases overruled next 75 years 71
were overturned.
 These decisions provided clear evidence of the courts desire to protect private
property.
 The court also rendered decisions that authorized various kinds of regulation.
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3. From 1938 to the present the major issue in front
of the court has been personal liberty and social
equality.
Roosevelt and the Supreme Court
 Court packing switch in time that saved nine
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1953 Chief Justice Earl Warren
 Activism protect the rights and liberties of citizens from
government trespass.
 Before 1937 protection that conservatives liked
 After 1937 it was the kind that liberals liked.
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The only federal court required by the Constitution is the
Supreme Court.
Article III left it up to Congress to establish lower federal courts
Judiciary Act of 1789.
 The Constitution does not specify how many justices shall be on
the Supreme Court (6 now 9)
 Congress created two general types of lower federal courts.
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 1. Constitutional Courts They exercise the judicial powers found in
Article III. Judges have the constitutional protection of lifetime terms.
 94 district courts at least 1 in each state District of Columbia, and Puerto
Rico, Virgin Islands, Guam. Northern Mariana Islands.
 13 courts of appeals one for each of the 12 judicial circuits (region)
 Special appeals court called the U.S. Court of Appeals for the Federal
Circuit hears cases regarding patents, copyrights, and trademarks, claims
against the United States, and international trade.
 Established in 1982 to speed up the appeals in certain civil cases
 Hear cases from all over the nation.
 U.S. court of international Trade, U.S. court of federal claims, and U.S.
court of appeals for veterans claims.
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District Courts
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Courts of Appeal
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Trial courts that have original jurisdiction. They are the only federal courts in which
trials are held and juries may sit.
Their jurisdiction includes federal crimes, civil suits under federal law, and civil suits
between citizens of different states where the amount exceeds 50,000 dollars.
They hear no appeals
Have appellate jurisdiction. They review any final decisions of district courts, and
they may review and enforce orders of many regulatory agencies.
Most cases come from district courts
Each court normally hears cases in panels of 3 judges, but important cases may have
more, and decisions are made by majority vote of the judges.
2. Legislative Courts Congress creates them for specialized purposes.
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They are known as Article I courts because they help carry out the legislative powers
the Constitution gives to Congress.
Since they do not carry out Article III powers the judges do not have lifetime
protection they serve for a fix time. They can be removed without impeachment.
Court of claims, Court of International Trade, Tax Court, Court of Military Appeals.
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The United States has a dual court system, one federal, and the
other state
The Constitution gives certain kinds of cases to federal courts, and
by implication leaves all the rest to the state courts.
Federal courts hear cases arising under the Constitution, the law
of the United States, and treaties (federal question cases) cases
involving citizens of different states (diversity cases)
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Some kinds of cases may be heard in either federal or state courts
Some times a person can be tried in both state and federal courts for the
same offense under the doctrine of dual sovereignty.
Cases that go to state courts can be appealed to the U.S. Supreme Court if
they involved a significant Constitutional question
Most cases considered in federal courts start in district courts. Most cases
involve straightforward application of law; few are important in
policymaking.
Majority of cases heard in state courts do not reach federal courts, with
each state having its own Supreme Court that serves as the final judge for
questions of state law.
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Why do we look to venerable former justices for
guidance in understanding necessary qualities for
federal judges and justices?
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Because the Constitution is silent on their qualifications.
As a result the question of who is chosen is governed
primarily by tradition.
NOMINATION PROCESS
Constitution gives responsibility for nominating federal
judges and justices to the President.
 These nominations need to be confirmed by the Senate.
 Presidents relies on many sources to recommend
appropriate nominees for judicial posts. They come from
the department of justice, the FBI, members of Congress,
sitting judges and justices, and the American Bar
Association.
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The Lower Courts
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Supreme Court
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The selection of judges for district courts and sometimes for courts of appeals is
influenced by tradition
Senatorial courtesy The Senate usually will not confirm a district judge if the senior
senator (from the presidents party) from the state where the court is located objects,
nor a court of appeals judge not approved by the senators from the judge’s home
state. As a result of this the president will check with senators ahead of the
nomination.
The President is very interested in opportunities to appoint justices to the Supreme
Court, and a large amount of time and effort go into the nominations. Why?
Senate Confirmation
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Because senators suggest most nominees for federal district courts, the Senate
confirmation required by the Constitution is only a formality However for
appointments to appeals courts and especially to the Supreme Court, the
confirmation process may be less routine.
 Senate Judiciary Committee interviews the nominee before they go before the Senate.
 If the Judiciary Committee does not recommend the candidate the Senate usually
rejects them.
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Presidents use a number of criteria is selecting
their nominations:
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1. political ideology
 Presidents usually appoint judges that seem to have a
similar political ideology to their own.
 Predicting the future decisions of a judge is not always
an easy task it is easy to misinterpret the ideology
behind a judges actions, and political views also
change.
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2. Party and Personal Loyalties
 High percentage of a President’s appointees belong to
his political party, and appoint friends and loyal
supporters but not as common today.
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3. Acceptability to the Senate
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4. Judicial Experience
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Typically justices have held important judicial positions before being nominated to
the Supreme Court. ( Court of appeals, Department of Justice, distinguished
attorneys)
The work of the Supreme Court is so different from that of the lower courts that
direct judicial experience is often less important than it is for other judicial
appointments
5. Race and Gender
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Because the Senate must confirm judicial nominations, the President must consider
candidates that are acceptable to the Senate.
Even if he consults with the Senate, he still may run into problems with the Senate
Judiciary Committee, who first interrogates nominees and recommends them to the
full Senate.
First black justice Thurgood Marshall 1967
First women justice Sandra Day O’Connor 1981
6. Litmus Test
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Although most Senators and the President deny it, the belief is candidate must pass
a test of ideological purity before they may be nominated, or confirmed.
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Of the Three branches of our government the federal
courts are the least democratic why?
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1. Justices are not elected
2. They may not be removed except by drastic means
impeachment.
3. decisions of the courts may only be reversed by higher courts
The courts are not entirely independent of popular
influence for two reasons
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1. Justices are appointed by the president because in part they
agree with his political points of view and ideologies. Political
biases.
2. They are aware that court orders that flagrantly go against
public opinion are likely to be ignored. They follow election
returns, and get mail from both sides of the issue they must
decide. They know the publics opinion.
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Judicial review gives the federal courts a power unmatched in any
other but they operate under a number of constraints.
1. Policy must be made within the setting of an adversarial
system, a neutral arena in which two parties present opposing
points of view before an impartial arbiter (judge) The system is
based on the assumption that justice will emerge from the
struggle. Judicial power is passive that is the case must come to
court and not the other way around.
2. The case must represent justiciable dispute an actual situation
rather than a hypothetical one, and one that may be settled by
legal methods.
3. Courts have developed a doctrine of political questions
provides grounds to avoid settling disputes between Congress
and the President, or requires knowledge of a nonlegal character.
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A political question is a matter that the Constitution leaves to another
branch of government.
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1. President controls the nature of the courts
with his appointment power.
2 Congress must confirm presidential
appointments
3 Congress may alter the very structure of the
court system, number of courts and justices
4 Congress has the power to impeach justices
5 Congress may amend the Constitution if the
courts find a law unconstitutional.
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The majority of cases decided by the federal courts
only apply existing law to specific cases, courts do
make policy. Opinions differ greatly on the issue of
how strong the policymaking role of the judicial
branch should be.
1 Judicial restraint judges play a small policy making
role, leaving policy decisions to the two other branches.
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Supporters of this believe that because the judicial branch is the
least democratic, judges are not qualified to make those
decisions.
They believe that the other branches should take the lead
because they are more closely connected to the people
Justice Antonin Scalia “The Constitution is not an empty
bottle…it is like a statute, and the meaning doesn’t change.”
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2. Judicial Activism Judges make policy
decisions and interpret the Constitution in new
ways.
These supports believe that the federal courts must
correct injustices that the other two branches do not.
(minority rights have been ignored, partly because
the majorities impose their will on legislators)
 The Constitution, then must be loosely interpreted to
meet the issues of the present.
 Justice Charles Evans Hughes “We are under a
Constitution, but the Constitution is what the judges
say it is.”
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