The Court in Action
Institutions of Government #8
Brief History of the Courts
National Government’s Role (Founding to 1850s)
What was the relationship of the National
Government to the states and what powers did
the National Government have legitimately?
Marbury v Madison (1803), McCulloch v.
Maryland (1819), Gibbons v. Ogden (1824)
Slavery (1850s-Civil War)
Dealt with nature of the Constitution and could
the Federal Government regulate slavery?
Scott v. Sandford (1857) (Dred Scott Case)
Brief History of the Courts
Government and the Economy (1865-1936)
When could state and federal government
regulate the economy?
Private Property protected but could not
develop a identity on what was reasonable
regulation of the economy.
14th and 15th Amendment narrowly interpreted
Government and Political Liberty (1936 to Now)
Defers to legislature on economic issues.
Defining rights.
Beginning in 1992 started reversing trend
towards increased federal power.
Note: Omitted is John Rutledge, who served for only a few months in 1795 and
who was not confirmed by the Senate.
Copyright © 2013 Cengage
Selection of Judges
General Process: President appoints a
judge to the federal bench. The Senate
holds a hearing and vote to “confirm.”
Remember: Although the Supreme Court
Justices get the most attention ALL
Federal Judges are selected with this
procedure
Senatorial Courtesy
Appointees for federal
courts (not Supreme) are
reviewed by Senators from
that state (if same party as
President)
Judicial Behavior
Quality of judicial rulings and
opinions in the past
Character issues?
The Litmus Test
Test of ideological
compatibility
Leads to conflicting circuit
court rulings due to different
Presidential Appointments
Threat of filibuster leads
Presidents to seek 60 votes to
confirm.
The Politics of Judicial Selection
The Nature of the Judicial System
• Introduction:
– Two types of cases:
• Criminal Law: The government charges an individual
with violating one or more specific laws.
• Civil Law: The court resolves a dispute between two
parties and defines the relationship between them.
– Most cases are tried and resolved in state, not
federal courts.
• Cases of burglary or divorce
The Nature of the Judicial System
• Participants in the Judicial System
– Litigants
• Plaintiff—the party bringing the charge
• Defendant—the party being charged
• Jury—the people (normally 12) who often decide the outcome of a
case
• Standing to sue: plaintiffs have a serious interest in the case; have
sustained or likely to sustain a direct injury
• Justiciable disputes: a case must be capable of being settled as a
matter of law.
The Nature of the Judicial System
• Participants in the Judicial System
– Groups
• Use the courts to try to change policies
• Amicus Curiae briefs used to influence the courts
– “friend of the court” briefs used to raise additional points of view
and information not contained in briefs of formal parties
– Attorneys
• 800,000 lawyers in United States today
• Legal Services Corporation: lawyers to assist the poor
• Access to quality lawyers is not equal.
How Does a Case Reach the Supreme Court?
• The Rule of 4
– The Court gets to pick and choose which
cases it will hear.
– If 4 judges agree they will hear a case that
case is granted a writ of certiorari (writ of
cert). Less than 5% of all appeals are heard
by the Supreme Court.
• What type of cases does the court take?
– A lower level court makes a decision that
conflicts with previous Supreme Court
rulings
– A Constitutional question is raised that has
not been examined by the Court before
– Differing District Court rulings on similar
issues
– Departure from previous procedures in
lower courts.
The Government’s Response
• The Solicitor General:
– a presidential appointee and third-ranking office in the
Department of Justice
– is in charge of appellate court litigation of the federal
government
– Four key functions:
• Decide whether to appeal cases the government lost
• Review and modify briefs presented in appeals
• Represent the government before the Supreme Court
• Submit a brief on behalf of a litigant in a case in which
the government is not directly involved
Deterrents to Courts
• Supreme Court accepts so few cases (<5%)
• Costs of Appeals are high
– Some remedies to high costs exist
• In forma pauperis: Poor plaintiff,
government covers costs
• Interest groups cover cost
• Time is a cost as well
• Fee Shifting: Loser of case may have to cover
winner’s legal cost
Procedure of the Court
• Once the Court Decides to hear a case…
– Brief Filing
• The parties file written briefs outlining their legal argument
for the proposed remedy
• During this time interested 3rd parties can file briefs known
as Amicus Curiae (“Friends of the Court”) with their
arguments.
– Oral Arguments
• 30 minutes given to each side to present their legal
argument. (Time can be extended in controversial or
extraordinary cases)
• Judges can interrupt to ask questions of the lawyers
• All arguments since 1955 have been recorded (oyez.org)
The Decision Making Process
• Conference
– The judges meet, alone without any clerks, and
discuss the case.
– The judges from senior (Chief Justice) to most
junior give their opinions.
– Once the preliminary vote is tallied the opinion
writing is assigned by the senior most judge on
the majority side (can give the opinion to
themselves)
Opinion Writing
• The justice charged with writing the opinion
circulates a draft among the others
• Justices may suggest changes or simply join the
opinion
• At this point Justices might HAVE changed their
mind about the issue and can change their vote
• The opinion includes the facts of the case,
relevant case law from previous cases, the
decision reached, and the legal argument why
that decision was made.
Kinds of Court Opinions
• Per curiam: brief and
unsigned
• Opinion of the court:
majority opinion, sets
precedent
• Concurring opinion: agrees
with the ruling of the
majority opinion, but for a
different or additional reason
• Dissenting opinion: minority
opinion; does not serve as
precedent
Categories of Opinions
• Policy Making Decisions vs. Norm Enforcing
– Norm Enforcing (95% of all decisions): Most
Supreme Court decisions enforce the lower court’s
rulings. Referred to as Stare Decisis (Let the
decision stand)
– Policy Making: Rulings that change the previous
legal thinking on an issue and force the
government to adopt a new policy.
Judicial Philosophies
• Liberal vs. Conservative
– Liberal Judicial Philosophy: Tends to hold group rights (civil
rights) and equality over liberty.
– Conservative Judicial Philosophy: Tends to hold individual
rights (right to property, speech) and liberty over group
rights and equality.
• Activist vs. Constructionist
– Activist Judges: Believe that the Constitution can be
interpreted for meaning and applied to modern day
society.
– Constructionist Judges: Believe in a literal reading of the
Constitution. No meaning can be inferred and you must
use the words as they appear in the Constitution.
Understanding the Courts
After the Decision
• Judicial implementation
– How and whether court decisions are translated
into actual policy, thereby affecting the behavior
of others
– Must rely on others to carry out decisions
• Interpreting population: understand the decision
• Implementing population: the people who need to
carry out the decision–may be disagreement
• Consumer population: the people who are affected (or
could be) by the decision
Understanding the Courts
• The Courts and Democracy
– Courts are not very democratic.
• Not elected
• Difficult to remove judges and justices
– The courts often reflect popular majorities.
– Groups are likely to use the courts when other
methods fail, which promotes pluralism.
– There are still conflicting rulings leading to
deadlock and inconsistency.
The Roberts Court (2005-Current)
Samuel
Elena
Alito
Kagan
Jr.
(Appointed
(Appointed
2010
2006
by
by
George
W.
Bush)
Clarence
Anthony
Ruth
Stephen
Bader
Thomas
Kennedy
Breyer
Ginsburg
(Appointed
(Appointed
(Appointed
(Appointed
1991
1988
1994
1993
byBarack
by
by
George
Ronald
by
BillObama)
Bill
Clinton)
H.W.
Clinton)
Reagan)
Bush)
Sonia
Antonin
John
Sotomayor
Roberts
Scalia
(Appointed
(Appointed
2005
1986
2009
by
by
George
Ronald
Barack
W.
Reagan)
Obama)
Bush)
Conservative
Liberal
leaning
Constructionist
Moderate
Moderate
Conservative
Liberal
leaning
Liberal
Activist
Conservative
Activist
Conservative
Constructionist
Had
First
justice
very
appointed
without
confirmation
previous
hearing,
surviving
experience
an
since
Advocate
TheaIs
counter
often
ofcontentious
Most
dialogue
described
opinion
controversial
with
to
asScalia,
the
other
“Swing
member
even
branches
going
Vote”
ofJudicial
despite
the
so
onfar
court.
the
as
fears
current
toattempted
write
it would
a
Has
Named
written
First
Chief
Hispanic
more
Justice
concurring
onany
upon
the
Supreme
Rehnquist’s
opinions
Court.
than
death.
any
Democratic filibuster, and being
William
only
Rehnquist.
the second nominee in history that
court.
Barely
won
book
countering
has
politicize
began
his
relying
the
legal
court.
accusation
on
philosophy
international
of sexual
Too
Has
early
rules
other
toRecently
very
tell
judge
ifconfirmation
similar
she
during
falls
to
under
Rehnquist
hisdespite
tenure.
the
activist
(He
And
was
the
orasecond
constructionist
clerk
tolaw
him)
Served
the American
as a law professor
Civil Liberties
at Harvard
Unionand
has became
opposedSolicitor
confirmation
General
for.(the
to
harassment
help
interpret
Often
Pragmatic
and
the
seek
non-qualified
Constitution,
consensus
decision
rating
maker.
building.
especially
by
the
in
ABA.
cases
philosophy
Too
early
but
most
to
speculation
give
dissenting
any
consistent
is
opinions
that
she
positions
is
Activist.
lawyer representing
Confirmed
the U.S.
by in
final
Supreme
vote ofCourt
58-42.hearings) before
Advocates
Doesn’t
Lowest
looking
rate
involving
ask
at
any
of
international
overturning
questions
“modern
during
human
congressional
law
as
oral
well
rights.”
arguments.
as
actions.
women’s
rights
Deciding
Is
the
most
vote
vocal
that
in
ruled
questioning
Health
Care
opponents
constitutional.
during
Nicknamed “Scalito” for his nomination.
previous rulings being
much
in line with
oral
agruments
Has been praised earlyScalia’s
on for
judicial
the
quality
philosophy.
of her opinion writing saying
Has issuedthey
a dissent
can give
suggesting
Scalia a run
Roefor
v. Wade
his money.
be overturned.
Liberal
Moderate
Conservative