The Judiciary (Supreme Court)
1. Federalist Paper #78:
The Supreme Court
is the “least dangerous
branch.”
Constitutionalism AKA
“The Madisonnian Dilemma”
Self-Government
↙
↘
VERSUS
Minority Rights
NOTE: Neither majorities nor minorities can
be trusted with complete power. What can be done???
Solving The Madisonnian Dilemma
The Constitution deals with the problem in three
ways:
1) President, Senators, and House members are
elected by different people.
2) Constitution limited powers of the federal
government and gave plentiful powers to the
states. (Federalism)
3) Bill of Rights
*** Courts must protect the rights of individuals
while protecting the power of the majority to
govern…..”majority rule and minority rights!!!!”
John Roberts’s Explanation
“Judges are like umpires.
Umpires don’t make the
rules. They apply them.
The role of an umpire and
a judge is critical. They
make sure everybody
plays by the rules. But it is
a limited role. Nobody
ever went to a ballgame to
see the umpire.”
Roberts Analogy Redux:
Umpire = Judges
Teams = President, Congress, State Legislatures
Rule Book = Constitution, Precedent, Et Cetera
Establishing Judicial Review:
Marbury v. Madison
1. Judicial Review is not listed in Article III but IS in the Federalist Papers
1. This case resulted from a petition to the Supreme Court by William Marbury,
who had been appointed by John Adams as Justice of the Peace in the District of Columbia
But whose commission was not subsequently delivered. Marbury petitioned the Supreme
Court to force James Madison to deliver the documents (writ of mandamus), but the court, with John
Marshall as chief justice, denied
Marbury’s petition, holding that the
part of the statute upon which he
based his claim, the Judiciary Act of
1789, was unconstitutional.
3. Marbury had argued that the
Constitution was only intended to set a
floor for original jurisdiction that
Congress could add to. Marshall
disagreed and held that Congress does
not have the power to modify the Supreme
Court's original jurisdiction. Consequently,
Marshall found that the Constitution and
the Judiciary Act conflict.
Judicial Philosophies
Judicial Restraint
Judicial Activism
• Tends to believe in the
• Defers to elected
concept of a “living
institutions like Congress
and state legislatures.
Constitution.”
• Believes in a limited number • Will create new rights by
of rights.
striking down laws.
• Does not create new
• Sometimes means a judge
precedent.
will use his/her values to
• Tends to believe the
assess a case.
meaning of the Constitution
doesn’t change.
(Originalists)
Current Ideological Make-Up of the
Supreme Court
Conservatives
•
•
•
•
Roberts
Alito
Scalia
Thomas
Swing
½Kennedy½
Liberals




Breyer
Kagan
Ginsburg
Sotomayor
Nomination Process
• Nominated by the President for a life-time
appointment.
• Must go through Senate Judiciary Hearing.
• Is confirmed with a majority vote in the
Senate.
Nomination Process (Continued)
1. Nominations have become increasing
controversial.
2. Litmus Test v. Competence/Character
3. Robert Bork
4. Clarence Thomas & Anita Hill
5. Recent Senate Votes
a. Kagan: 63-37
b. Sotomayor: 68-31
c. Alito: 58-42
d. Roberts: 78-22
e. Breyer: 87-9
f. Ginsburg: 96-3
g. Thomas: 52-48 (Closest in History)
h. Souter: 90-9
i. Kennedy: 97-0
j. Bork: 42-58
k. Scalia: 98-0
l. O’Connor: 99-0
Kennedy v. Bork
"Robert Bork's America is a land in which women would be
forced into back alley abortions, blacks would sit at
segregated lunch counters, rogue police could break
down citizens' doors in midnight raids, school children
could not be taught about evolution, writers and artists
could be censored at the whim of government, and the
doors of the federal courts would be shut on the fingers
of millions of citizens of whom the judiciary is — and is
often the only — protector of the individual rights that
are at the heart of our democracy." Edward Kennedy
Clarence Thomas v. Anita Hill
US Supreme Court
Clarence Thomas
•
1. Very controversial
confirmation hearings.
2. Very influence by Ayn Rand….he
forces all clerks to read The
Fountainhead.
3. Doesn’t speak during oral argument.
4. Travels around in an RV all summer
from Wal-Mart to Wal-mart.
5. Believes in the “Constitution in Exile.”
Ruth Bader Ginsburg
•
•
•
•
1. Former head of the ACLU.
2. Opera Lover.
3. Believes abortion rights are an
equal rights, not privacy, issue.
4. Golfs and can speak fluent
Swedish.
Samuel Alito
•
•
•
•
•
•
1. Appointed by Bush
2. Wife cried at confirmation hearing.
3. Loves the Phillies.
4. Set a record for SAT’s
5. Hates the Sopranos.
6. Replaced first woman on Supreme
Court.
Antonin Scalia
•
•
•
•
•
1.
2.
3.
4.
Is the funniest of the justices.
Aggressive at oral argument.
Believes in originalism.
Has 9 kids and hunts with Cheney.
Sotomayor
“I would hope that a
wise Latina woman with
the richness of her
experiences would more
often than not reach a
better conclusion than a
white male who hasn’t
lived that life. “
Anthony Kennedy
1. Is the “swing” voter.
2. So boring his father offered
him $100 to get himself arrested.
3. Goes to Europe every summer
to law conferences.
Stephen Breyer
Elena Kagan
1. Former solicitor general
2. Former dean of Harvard Law School
3. In trouble for opposing the Solomon
Amendment at confirmation hearings.
John Roberts
• 1. Perhaps most impressive nominee
ever before the Senate Judiciary
committee – “buried the trophy.”
• 2. Could translate Virgil’s Aeneid in high
school.
• 3. Shared a class with Yo Yo Ma.
• 4. Independently wealthy– worth about
5 million.
• 5. Has 2 snails and a ladybug named
Dora for a pet.
Federal and State
Court Systems
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Which Cases Reach the Supreme
Court?
• When two lower courts are in disagreement
• When a lower court’s ruling conflicts with an
existing Supreme Court ruling
• When a case has broad significance (as in
desegregation or abortion decisions)
• When a state court has decided a substantial
federal question
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Which Cases Reach the Supreme
Court? (cont.)
• When the highest state court holds a federal
law invalid, or upholds a state law that has
been challenged as violating a federal law
• When a federal court holds an act of Congress
unconstitutional
• When the solicitor general is pressuring the
Court to hear a case
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Cases Before the Court
• Granting Petitions for Review.
Review is granted by a writ of certiorari.
To issue a writ, a minimum of four justices
must agree that the case should be heard by
the Supreme Court (the “rule of four”).
• Case is placed on the docket.
briefs are filed.
• Oral Argument before the court (30 min each
side)
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Deciding Cases
• Once the Court has decided to accept a case,
both parties in the case will submit legal briefs
and (usually) make oral arguments.
• If the Court is unanimous in the ruling, one
justice will be assigned to write the opinion of the
Court. If the justices are divided on the reasoning
of the outcome, there will be a majority opinion
and dissenting opinions.
• Different Terms to know:
a) Per Curium – unsigned opinion
b) Stare Decisis – “Let the decision stand”
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Checking the Judiciary
• Jefferson
Impeachment / Judiciary Act of
1802
• Jackson
Ignored the Court
• FDR
Court-Packing Scheme
• Congress
--Constitutional Amendment