AP GOV: CHAPTER 14
THE JUDICIARY
Intro to the Judiciary

The US is unique in the large role judges play in
policy making
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Judicial review: the right of federal courts to rule on
the constitutionality of laws and executive acts
There is debate over how the Constitution should
be interpreted.
Strict constructionist approach: judges should rule
based on the exact language of the Constitution
 Activist approach: judges should discern the
underlying principles of the Constitution and assess
how best to apply them to contemporary
circumstances

The Founders & the Supreme Court
(1789-1865)

The Founders expected the Supreme Court to have the
power of judicial review, but they expected the Court to find
and apply existing law, not create new policy.

From 1789 until the Civil War, the focus of the Supreme Court
was the relationship between the national government and
the states’ governments.
 The SC made it clear that national law is dominant, and
that the SC has the power to determine what the
Constitution means.

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
Marbury v. Madison (1803) – the SC can declare an act of Congress
unconstitutional
McCulloch v. Maryland (1819) – federal law is supreme over state law
The SC has ruled that it has the right to review the decisions
of state courts and overturn them if necessary.
Government and the Economy
(1865-1937)

Following the Civil War and leading into the
New Deal, the Supreme Court debated over
when the economy should be regulated by the
states vs. the national government.
Government and Political Liberty
(1937-Present)

From 1937 to 1974, the SC did not overturn
any federal laws regarding the regulation of
business, but they did overturn 36 laws which
violated personal liberties.
 Activism
began to redefine the relationship
between citizens and the government, and
focused on preventing government trespass.
Federal Court Structure

The only federal court specified by the
Constitution is the Supreme Court (Article III).

Congress has the right to create further courts, and
they made two types to handle cases the SC does not
need to decide:

Constitutional Courts: exercises judicial powers found in
Article III, judges are given constitutional protection.


Examples: Supreme Court, U.S. Courts of Appeals (12),
District Courts (94), Court of International Trade
Legislative Courts: set up for a specialized purpose and
staffed with judges who have fixed terms and can be
removed.

Examples: Court of Military Appeals
Selecting Judges

All constitutional court judges are nominated
by the President and confirmed by the Senate.
 Party
background can affect how judges will
behave. The biggest differences occur in cases
alleging discrimination based on race or sex and
in cases involving rights of the accused.
 Senatorial courtesy: typically, the Senate will not
approve a judge if both senators from the state
where the federal district judge is to serve
disapprove of the nomination.
The “Litmus Test”

Presidents seek judicial appointees who share
their political ideologies.
Some worry that presidents use a litmus test—a test
of ideological purity—to select judges. Many argue
judges should be chosen based on qualifications, not
political beliefs.
 Presidents find it difficult to get judges approved who
do not pass the litmus test in the eyes of the Senate.
 The litmus test most greatly impacts Supreme Court
nominees—Presidents openly look for nominees who
share their philosophies.

Jurisdiction of Federal Courts

The U.S. has a dual court system: one state, one
federal.


Under the dual sovereignty doctrine, state and federal
courts can prosecute the same person for the same
conduct.

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
Federal courts hear federal-question cases (cases arising
under the Constitution, the laws of the US, and treaties) and
diversity cases (cases involving citizens of different states).
Each level of government has the right to enact laws serving its
own purposes.
Neither level of government wants the other to be able to block
prosecution of an accused person who has the sympathy of
authorities at that level.
Matters that belong to state courts can be appeled to the
U.S. Supreme Court.

The SC picks which cases it wants to hear on appeal. At least
four justices must agree to hear the case, at which point a writ of
certiorari is issued.
Getting to Court

The Supreme Court rejects over 96% of the applications for certiorari it
receives. Of cases that are approved, costs are very high. If you are indigent,
you can file and be heard for free as a pauper—a procedure known as in
forma pauperis.

If a case is not a criminal case and you cannot afford a lawyer, often interest
groups will provide one for you if the case issue is important.

Fee shifting: enables the plaintiff to collect its costs from the defendant if
the defendant loses.

To sue, one must have standing, or entitlement to bring a case.


You cannot sue the government without its consent—this is called sovereign
immunity.
Class-action suit: a case brought into court by a person on behalf of all
other people in similar circumstances.


Ex: Brown v. Board of Education
The Supreme Court will not hear class-action suits unless each and every member
of the class was individually notified of the case, except in special cases, such as
civil rights issues.
The Supreme Court in Action

The Supreme Court is in session for 36 weeks out of the
year. Most cases come to the SC via writ of certiorari.

Lawyers from each side submit a brief, which includes: facts
of the case, the lower-court decision, arguments for their
side, and a discussion of other cases the Court has decided
bear on the issue

The lawyers for each side present their oral arguments in
open court, which is limited to a half hour. The federal
government is usually represented by their top trial lawyer—
the solicitor general.

Written briefs and oral arguments can also be submitted by
amicus curiae, or “friends of the court” who are interested
groups/individuals not directly involved with the suit.
The Court’s Decision

The justices retire every Friday to a conference room
to vote. The chief justice speaks first and votes last.


If there is a tie, the lower-court decision stands.
The Supreme Court issues a written opinion
explaining its decision:



Opinion of the Court: reflects the majority’s view
Concurring Opinion: an opinion by one or more justices
who agree with the majority’s conclusion, but for different
reasons that they wish to express
Dissenting Opinion: the opinion of the justices on the
losing side
Power of the Federal Courts

The courts make policy whenever they reinterpret the
law/Constitution or extend the reach of existing laws. How do we
know the SC is powerful?


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More than 130 federal laws have been declared unconstitutional.
The SC can change its mind. One rule of judicial decision making is
stare decisis, which is the principle of precedent: a court case
should be decided in accordance with prior decisions on similar
cases. The SC has overruled its own previous decisions in 260
cases since 1810.
The Court now hears more matters previously left to the legislature:
previously, matters that were a political question (questions the
Constitution leaves to the legislative branch) were not heard by the
SC. Now, that is no longer a barrier to judicial power.
Federal courts impose remedies (a judicial order setting forth what
must be done to correct a situation) which go far beyond what is
required to “do justice.”
Views of Judicial Activism

Judicial activism has always been controversial.


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Those who support it argue that federal courts must correct
injustices when other branches refuse to do so.
Those who oppose it say judges have no expertise in
matters they are “activists” for, and they are not popularly
elected.
Some say we have activist courts because we have
so many lawyers—the more matters that go to the
courts for resolution, the more powerful courts will
become. Additionally, it has become easier for people
to get their case to courts.
Checks on Judicial Power

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The Court has no police force or army.
The Senate can alter the composition of the
judiciary by which appointments it confirms,
and it can impeach judges.
Congress can undo a SC interpretation of the
Constitution by amending the Constitution.
Congress can decide what the jurisdiction is of
lower courts and the appellate jurisdiction of
the SC.