American Politics:
Courts
January 7, 2008
Announcements
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Take home essay to be distributed tomorrow, 8
January; due 10 January.
Take home essay will be posted at noon
tomorrow on my website:
www.jkarp.com/f2007/. Essays will also be
distributed via email to your university address.
Please note: It is YOUR responsibility to obtain
the exam.
The Nomination Process
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Iowa Caucus (3 Jan)
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Barack Obama wins the Democratic caucus; Mike
Huckabee wins the Republican caucus
New Hampshire Primary (tomorrow, 8 Jan)
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Obama and McCain lead; Obama has a 13% lead
over Clinton and McCain leads by 7% over Romney
(USA Today/Gallup)
The Courts—The Third Branch
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Powerful, but not Democratic
Supreme Court has nine unelected judges
appointed for life and are independent from one
another
Responsive?
Accountable?
Power of the Supreme Court
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Originally intended to interpret the constitution
Principal of Judicial Review
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Allows the SC to declare the acts of president and
Congress unconstitutional
Role of the Court in Civil Rights and Bush v.
Gore
Limitations on power
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Courts are reactive (can only hear cases brought
before them)
Lack of enforcement
Limited by the ability of Congress and the
president to write new laws (or constitutional
amendments)
Public opinion
The Structure of the Federal
Judiciary
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Only the Supreme Court is explicitly mentioned
in the Constitution (Article III).
Nature of the judiciary beyond the Supreme
Court deferred to Congress.
Judiciary Act of 1789 - created the federal
judiciary.
The federal judiciary is organized as a threelayered pyramid.
The Supreme Court
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The Supreme Court is the court of final appeal.
Under its appellate jurisdiction, the Court may
hear cases appealed from the lower courts or
directly from the highest state courts when an
important constitutional question is in dispute.
Decision on which cases to accept is based on
the Rule of Four.
Supreme Court’s Case Load
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In a few rare situations the SC has original
jurisdiction (meaning it is the first to hear the
case). Example: disputes between states
Another unusual route is certification, when an
appeals court requests a review to settle a
question of law.
The majority of cases are appeals (via the Court
of Appeals).
Deciding Cases
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English Common law
Principal of stare decisis (precedent)
Judicial restraint vs. judicial activism
Reasoning
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Majority opinions
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Concurring opinions
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The Court majority sends a signal to lower courts, lawyers,
potential litigants and others how they are likely to treat
similar cases in the future.
Agrees with decision but not reasoning
Dissenting opinions
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Explains why they disagreed with the ruling. Dissents can be
important as they lay the groundwork for future decisions.
Checks on the Judiciary
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Executive Checks
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Legislative Checks
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Appropriation of funds
Constitutional amendments
Amending laws to overturn court’s rulings
Public Opinion
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Appointments
Influence judicial opinions
enforcement
The Court
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stare decisis
Judicial restraint
Civil Liberties
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We classify as civil liberties the Constitution’s
protections from government power.
Freedom of speech, religion and the right to
privacy are examples.
Typically violations of these liberties occur when
some government agency, at any level, oversteps its
authority.
Who protects civil liberties?
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Does the constitution guarantee certain absolute
civil liberties?
Truth is that our interpretations of these
freedoms constantly change.
Question of how to balance individual liberties
with societal rights
Cases Involving Civil Liberties
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Free Speech, Schenck v. United States (1919)
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Freedom of Press, New York Times v. Sullivan (1964)
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Three part test for judging constitutionality of division between church
and state
Gun Control, United States v. Miller (1939)
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Court attempts to define obscenity
Establishment Clause, Lemon v. Kurtzman (1971)
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Libel violates 1st Amendment
Obscenity, Roth v. United States (1957)
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clear and present danger
2nd Amendment does not provide for absolute guarantee
Right to Privacy, Roe v. Wade (1973)
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Landmark case on abortion
The Patriot Act –
A Threat to Civil Liberties?
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Change in protections from unreasonable search
and seizure
Detention of non-citizens, immigrants
Racial profiling
Bush v. Gore (2000)
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Supreme Court decides the 2000 Presidential Election
By a vote of 7-2, the Court held that the Florida
Supreme Court's scheme for recounting ballots was
unconstitutional, and by a vote of 5-4, the Court held
that no alternative scheme could be established within
the time limits established by Florida Legislature
Equal Protection of the laws (14th Amendment):
The state-wide standard (that a "legal vote" is "one in
which there is a 'clear indication of the intent of the
voter.'"could not guarantee that each county would
count the votes the same way.