The JudiciaryThe Judiciary

CHAPTER 16CHAPTER 16

I.I. The idea of judicial reviewThe idea of judicial review A.A. Only in the United States do judges Only in the United States do judges

play so large a role in policy makingplay so large a role in policy making 1.1. Judicial review: the right of the federal Judicial review: the right of the federal

courts to rule on the constitutionality of laws courts to rule on the constitutionality of laws and executive actionsand executive actions

a)a) Chief judicial weapon in the checks and Chief judicial weapon in the checks and balances systembalances system

b)b) Since 1789, the Supreme Court has Since 1789, the Supreme Court has declared over 160 federal laws unconstitutionaldeclared over 160 federal laws unconstitutional

2.2. Few other countries have such a powerFew other countries have such a power a)a) In Britain, Parliament is supreme.In Britain, Parliament is supreme. b)b) Judicial review is effective in only a few Judicial review is effective in only a few

other countries with stable federal systems that have other countries with stable federal systems that have history of judicial independence (for example, history of judicial independence (for example, Australia, Canada, Germany, India).Australia, Canada, Germany, India).

I.I. The idea of judicial review The idea of judicial review (cont.)(cont.)

B.B. Debate is over how the Constitution Debate is over how the Constitution should be interpreted.should be interpreted. 1.1. Judicial restraint approach (strict-Judicial restraint approach (strict-

constructionist): judges are bound by wording constructionist): judges are bound by wording of Constitutionof Constitution

2.2. Activist approach: judges should look to Activist approach: judges should look to underlying principles of Constitutionunderlying principles of Constitution

3.3. Not a matter of liberal versus Not a matter of liberal versus conservativeconservative

a)a) A judge can be both conservative and A judge can be both conservative and activist, or liberal and strict constructionist.activist, or liberal and strict constructionist.

b)b) Today, most activists tend to be liberal; Today, most activists tend to be liberal; most strict constructionists tend to be conservative.most strict constructionists tend to be conservative.

II.II. The development of the federal The development of the federal courtscourts

A.A. Founders’ viewFounders’ view 1.1. Most Founders probably expected judicial review Most Founders probably expected judicial review

but did not expect federal court to play such a large role but did not expect federal court to play such a large role in policy making.in policy making.

2.2. Traditional view: judges find and apply existing lawTraditional view: judges find and apply existing law 3.3. Activist judges would later respond that judges Activist judges would later respond that judges

also make law.also make law. 4.4. Traditional view made it easy for Founders to Traditional view made it easy for Founders to

predict courts would be neutral and passive in public predict courts would be neutral and passive in public affairs.affairs.

5.5. Hamilton: courts are the least dangerous branch; Hamilton: courts are the least dangerous branch; their authority only limits the legislature.their authority only limits the legislature.

6.6. But federal judiciary evolved toward judicial But federal judiciary evolved toward judicial activism, shaped by political, economic, ideological forces activism, shaped by political, economic, ideological forces of three historical eras.of three historical eras.

II.II. The development of the federal The development of the federal courts (cont.)courts (cont.)

B.B. National supremacy and slavery: 1789 to National supremacy and slavery: 1789 to 18611861 1.1. Marbury v. Madison Marbury v. Madison (1803) and (1803) and McCulloch v. McCulloch v.

Maryland Maryland (1819) (1819) a)a) Supreme Court could declare a congressional Supreme Court could declare a congressional

act unconstitutional.act unconstitutional. b)b) Power granted to federal government should Power granted to federal government should

be construed broadlybe construed broadly c)c) Federal law is supreme over state law.Federal law is supreme over state law.

2.2. Other cases: interstate commerce clause is placed Other cases: interstate commerce clause is placed under the authority of federal law; state law conflicting under the authority of federal law; state law conflicting with federal law was declared voidwith federal law was declared void

3.3. Dred Scott v. Sandford Dred Scott v. Sandford (1857): blacks were not, (1857): blacks were not, and could not become, free citizens of the United States; and could not become, free citizens of the United States; federal law (Missouri Compromise) prohibiting slavery in federal law (Missouri Compromise) prohibiting slavery in northern territories was unconstitutional.northern territories was unconstitutional.

II.II. The development of the federal The development of the federal courts (cont.)courts (cont.)

C.C. Government and the economy: 1865 to 1936Government and the economy: 1865 to 1936 1.1. Dominant issues of the period Dominant issues of the period

a)a) Under what circumstances could the state Under what circumstances could the state governments regulate the economy? governments regulate the economy?

b)b) When could the federal government do so?When could the federal government do so? 2.2. Private property held to be protected by the Private property held to be protected by the

Fourteenth AmendmentFourteenth Amendment 3.3. Judicial activism was born as the Supreme Court began Judicial activism was born as the Supreme Court began

to assess the constitutionality of governmental regulation of to assess the constitutionality of governmental regulation of business or labor.business or labor.

4.4. Supreme Court was supportive of private property, but Supreme Court was supportive of private property, but could not develop a principle distinguishing between could not develop a principle distinguishing between reasonable and unreasonable regulation of business.reasonable and unreasonable regulation of business.

5.5. The Court interpreted the Fourteenth and Fifteenth The Court interpreted the Fourteenth and Fifteenth Amendments narrowly as applied to blacks; it upheld Amendments narrowly as applied to blacks; it upheld segregation and permitted blacks to be excluded from voting segregation and permitted blacks to be excluded from voting in many states.in many states.

II.II. The development of the federal The development of the federal courts (cont.)courts (cont.)

D.D. Government and political liberty: 1936 to Government and political liberty: 1936 to the presentthe present 1.1. Court establishes tradition of deferring to the Court establishes tradition of deferring to the

legislature in economic regulation cases.legislature in economic regulation cases. 2.2. Court shifts attention to personal liberties and is Court shifts attention to personal liberties and is

active in defining rights.active in defining rights. 3.3. Failed court-packing plan (FDR); “the switch in Failed court-packing plan (FDR); “the switch in

time that saved nine”time that saved nine” 4.4. Warren Court provided a liberal protection of Warren Court provided a liberal protection of

rights and liberties against government trespass.rights and liberties against government trespass. E.E. The revival of state sovereigntyThe revival of state sovereignty

1.1. Beginning in 1992, the Supreme Court began to Beginning in 1992, the Supreme Court began to rule that the states have the right to resist some federal rule that the states have the right to resist some federal action.action.

2.2. Reassertion of limits to federal supremacy in Reassertion of limits to federal supremacy in cases involving gun control, Indian tribe lawsuits.cases involving gun control, Indian tribe lawsuits.

III.III. The structure of the federal The structure of the federal courtscourts

A.A. Two kinds of federal courts were created Two kinds of federal courts were created by Congress to handle cases that the by Congress to handle cases that the Supreme Court does not need to decide.Supreme Court does not need to decide. 1.1. Constitutional courts exercise judicial powers Constitutional courts exercise judicial powers

found in Article IIIfound in Article III a)a) Judges serve during good behaviorJudges serve during good behavior b)b) Salaries not reduced while in officeSalaries not reduced while in office c)c) Examples: district courts (94), courts of Examples: district courts (94), courts of

appeals (12)appeals (12) 2.2. Legislative courtsLegislative courts

a)a) Created by Congress for specialized Created by Congress for specialized purposespurposes

b)b) Judges have fixed termsJudges have fixed terms c)c) Judges can be removedJudges can be removed d)d) No salary protectionNo salary protection e)e) Example: Court of Military AppealsExample: Court of Military Appeals

III.III. The structure of the federal The structure of the federal courtscourts

B.B. Selecting judges Selecting judges 1.1. Judicial behaviorJudicial behavior

a)a) Party background has a strong effect on judicial behavior.Party background has a strong effect on judicial behavior. b)b) Other factors also shape court decisions: facts of the case, Other factors also shape court decisions: facts of the case,

prior rulings, and legal arguments.prior rulings, and legal arguments. 2.2. Senatorial courtesySenatorial courtesy

a)a) Appointees for federal courts are reviewed by senators Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U.S. from that state, if the senators are of the president’s party (particularly for U.S. district courts).district courts).

b)b) Gives heavy weight to preferences of senators from state Gives heavy weight to preferences of senators from state in which judge will servein which judge will serve

3.3. The “litmus test” The “litmus test” a)a) Litmus test: a test of ideological purityLitmus test: a test of ideological purity b)b) Presidents seek judicial appointees who share their Presidents seek judicial appointees who share their

political ideologies.political ideologies. c)c) Has caused different circuits to come to different rulings Has caused different circuits to come to different rulings

about similar cases.about similar cases. d)d) Raises concerns that ideological tests are too dominant; Raises concerns that ideological tests are too dominant;

has led to sharp drop in the percentage of nominees to federal appeals courts has led to sharp drop in the percentage of nominees to federal appeals courts who are confirmedwho are confirmed

e)e) A judicial nominee’s view on abortion is the chief reason A judicial nominee’s view on abortion is the chief reason for use of a litmus test.for use of a litmus test.

f) The threat of a filibuster aimed at blocking Senate confirmation has led f) The threat of a filibuster aimed at blocking Senate confirmation has led to a situation where the nominee must have the support of at least sixty to a situation where the nominee must have the support of at least sixty senators to guarantee that a cloture vote would stop a threatened filibuster. senators to guarantee that a cloture vote would stop a threatened filibuster. This has led to a great deal of legislative maneuvering with controversial This has led to a great deal of legislative maneuvering with controversial nominees.nominees.

IV.IV. The jurisdiction of the federal The jurisdiction of the federal courtscourts

A.A. Dual court systemDual court system 1.1. State court systems, federal court systemState court systems, federal court system 2.2. Federal cases listed in Article III and Eleventh Federal cases listed in Article III and Eleventh

Amendment of ConstitutionAmendment of Constitution a)a) Federal question cases: involving U.S. Federal question cases: involving U.S.

Constitution, federal law, treatiesConstitution, federal law, treaties b)b) Diversity cases: involving different states, Diversity cases: involving different states,

or citizens of different statesor citizens of different states 3.3. Some cases can be tried in either federal or state Some cases can be tried in either federal or state

courtcourt a)a) Example: if both federal and state laws Example: if both federal and state laws

have been broken (dual sovereignty; the Rodney King case)have been broken (dual sovereignty; the Rodney King case) b)b) Jurisdiction: each government has right to Jurisdiction: each government has right to

enact laws and neither can block prosecution out of enact laws and neither can block prosecution out of sympathy for the accused.sympathy for the accused.

4.4. Some cases that begin in state courts can be Some cases that begin in state courts can be appealed to Supreme Court.appealed to Supreme Court.

5.5. Controversies between two state governments Controversies between two state governments can be heard only by Supreme Court.can be heard only by Supreme Court.

IV.IV. The jurisdiction of the federal The jurisdiction of the federal courts (cont.)courts (cont.)

B.B. Route to the Supreme CourtRoute to the Supreme Court 1.1. Most federal cases begin in district courtsMost federal cases begin in district courts

a)a) Most are straightforward and do not lead to new Most are straightforward and do not lead to new public policypublic policy

b)b) Volume is huge: About 650 district court judges Volume is huge: About 650 district court judges received over 300,000 cases.received over 300,000 cases.

2.2. Supreme Court picks the cases it wants to hear on appeal.Supreme Court picks the cases it wants to hear on appeal. a)a) Requires agreement of four justices (or a writ of Requires agreement of four justices (or a writ of

certioraricertiorari) to hear case ) to hear case b)b) Supreme Court generally only agrees to review Supreme Court generally only agrees to review

certain types of cases, involving:certain types of cases, involving: (i)(i) A significant federal or constitutional questionA significant federal or constitutional question (ii)(ii) Conflicting decisions by circuit courtsConflicting decisions by circuit courts (iii)(iii) Constitutional interpretation by one of the highest state Constitutional interpretation by one of the highest state

courts, about state or federal lawcourts, about state or federal law c)c) Court may consider seven thousand petitions each Court may consider seven thousand petitions each

year, but only about one hundred are granted. year, but only about one hundred are granted. d)d) Limited number of cases heard results in diversity of Limited number of cases heard results in diversity of

constitutional interpretation among appeals courts.constitutional interpretation among appeals courts. e)e) Increased workload has led to greater influence of law Increased workload has led to greater influence of law

clerks.clerks. (i)(i) Help to decide which cases should be heard under a writ Help to decide which cases should be heard under a writ

of of certioraricertiorari (ii)(ii) May draft initial opinions for the justicesMay draft initial opinions for the justices

V.V. Getting to courtGetting to court A.A. Deterrents to the courts acting as Deterrents to the courts acting as

democratic institutionsdemocratic institutions 1.1. Supreme Court rejects all but a few of the Supreme Court rejects all but a few of the

applications for applications for certioraricertiorari.. 2.2. Costs of appeal are high.Costs of appeal are high.

a)a) Financial costs, including filing, record, and Financial costs, including filing, record, and attorney fees, are high, but may be lowered for some. attorney fees, are high, but may be lowered for some.

(i)(i) In forma pauperis: In forma pauperis: plaintiff indigent, with costs plaintiff indigent, with costs paid by governmentpaid by government

(ii)(ii) Indigent defendant in a criminal trial: legal Indigent defendant in a criminal trial: legal counsel provided by government at no chargecounsel provided by government at no charge

(iii)(iii) Payment by interest groups (for example, Payment by interest groups (for example, American Civil Liberties Union)American Civil Liberties Union)

b)b) Cost in terms of time is also high and cannot Cost in terms of time is also high and cannot be mitigated.be mitigated.

B.B. Fee shiftingFee shifting 1.1. Usually each party must pay its own legal Usually each party must pay its own legal

expenses.expenses. 2.2. The losing defendant pays the plaintiff’s expenses The losing defendant pays the plaintiff’s expenses

(fee shifting) in certain cases.(fee shifting) in certain cases.

V.V. Getting to court (cont.)Getting to court (cont.) C.C. Standing Standing

1.1. Guidelines regarding who is entitled to bring a caseGuidelines regarding who is entitled to bring a case a)a) There must be a real controversy between There must be a real controversy between

adversaries.adversaries. b)b) Personal harm must be demonstrated.Personal harm must be demonstrated. c)c) Being a taxpayer does not ordinarily constitute Being a taxpayer does not ordinarily constitute

entitlement to challenge federal government action; this entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved.requirement is relaxed when the First Amendment is involved.

2.2. Sovereign immunitySovereign immunity a)a) Government must consent to being sued.Government must consent to being sued. b)b) By statute, government has given its consent to By statute, government has given its consent to

be sued in cases involving contract disputes and negligence.be sued in cases involving contract disputes and negligence. D.D. Class-action suitsClass-action suits

1.1. Brought on behalf of all similarly situated personsBrought on behalf of all similarly situated persons 2.2. Number of class-action suits increased, because there Number of class-action suits increased, because there

were financial incentives to bringing suit and because were financial incentives to bringing suit and because Congress was not meeting new concerns.Congress was not meeting new concerns.

3.3. In 1974, Supreme Court tightened rules on these suits In 1974, Supreme Court tightened rules on these suits for federal courts, though many state courts remain accessible.for federal courts, though many state courts remain accessible.

4.4. Big class-action suits affect how courts make public Big class-action suits affect how courts make public policy (such as asbestos, silicone breast implants).policy (such as asbestos, silicone breast implants).

VI.VI. The Supreme Court in actionThe Supreme Court in action

A.A. Most cases arrive at the Court through a writ of Most cases arrive at the Court through a writ of certioraricertiorari..

B.B. Lawyers then submit briefs: documents that set forth Lawyers then submit briefs: documents that set forth the facts of the case, summarize the lower court decision, the facts of the case, summarize the lower court decision, give the argument of that side of the case, and discuss other give the argument of that side of the case, and discuss other issues.issues.

C.C. Oral arguments by lawyers after briefs submittedOral arguments by lawyers after briefs submitted 1.1. Each side has one half-hour.Each side has one half-hour. 2.2. Justices can interrupt with questions.Justices can interrupt with questions.

D.D. Since federal government is a party to almost half the Since federal government is a party to almost half the cases, the solicitor general frequently appears before the cases, the solicitor general frequently appears before the courts.courts. 1.1. Solicitor general: federal government’s top trial lawyerSolicitor general: federal government’s top trial lawyer 2.2. Decides what cases the government will appeal from Decides what cases the government will appeal from

lower courtslower courts 3.3. Approves every case presented to the Supreme CourtApproves every case presented to the Supreme Court

E.E. Justices may also consider other opinions.Justices may also consider other opinions. 1.1. Amicus curiae Amicus curiae briefs submitted if both parties agree or briefs submitted if both parties agree or

Supreme Court grants permission.Supreme Court grants permission. 2.2. Other influences on the justices include legal periodicals.Other influences on the justices include legal periodicals.

VI.VI. The Supreme Court in action The Supreme Court in action (cont.)(cont.)

F.F. Conference proceduresConference procedures 1.1. Role of chief justice: speaking first, voting lastRole of chief justice: speaking first, voting last 2.2. Senior judge on winning side selects opinion writerSenior judge on winning side selects opinion writer 3.3. Four kinds of court opinionsFour kinds of court opinions

a)a) Per curiamPer curiam: brief and unsigned: brief and unsigned b)b) Opinion of the court: majority opinionOpinion of the court: majority opinion c)c) Concurring opinion: agree with the ruling of Concurring opinion: agree with the ruling of

the majority opinion, but modify the supportive reasoningthe majority opinion, but modify the supportive reasoning d)d) Dissenting opinion: minority opinionDissenting opinion: minority opinion e)e) About two-fifths of decisions are unanimous. About two-fifths of decisions are unanimous.

In this case the law is clear and no difficult questions of In this case the law is clear and no difficult questions of interpretation exist.interpretation exist.

f)The other three-fifths appear to be two main blocs and one f)The other three-fifths appear to be two main blocs and one swing vote on today’s court:swing vote on today’s court:

(i) Conservative bloc: Alito, Roberts, Scalia, and Thomas(i) Conservative bloc: Alito, Roberts, Scalia, and Thomas (ii) Liberal bloc: Breyer, Ginsburg, Stevens, and Sotomayor(ii) Liberal bloc: Breyer, Ginsburg, Stevens, and Sotomayor (iii) Swing vote: Kennedy(iii) Swing vote: Kennedy

VII.VII. The power of the federal courtsThe power of the federal courts

A.A. The power to make policyThe power to make policy 1.1. By interpretation of the Constitution or lawBy interpretation of the Constitution or law 2.2. By extending the reach of existing lawBy extending the reach of existing law 3.3. By designing remedies that involve judges acting in By designing remedies that involve judges acting in

administrative or legal waysadministrative or legal ways B.B. Measures of powerMeasures of power

1.1. Number of laws declared unconstitutional (over 160)Number of laws declared unconstitutional (over 160) 2.2. Number of prior cases overturned; not following Number of prior cases overturned; not following

stare decisis stare decisis (over 260 cases since 1810)(over 260 cases since 1810) 3.3. Extent to which judges will handle cases once left to Extent to which judges will handle cases once left to

the legislature (political questions)the legislature (political questions) 4.4. Most significant indicator is kinds of remedies Most significant indicator is kinds of remedies

imposed; judges often impose remedies that affect large imposed; judges often impose remedies that affect large populationspopulations

5.5. Basis for sweeping orders can come either from the Basis for sweeping orders can come either from the Constitution or from court interpretation of federal laws.Constitution or from court interpretation of federal laws.

VII.VII. The power of the federal courtsThe power of the federal courts

C.C. Views of judicial activismViews of judicial activism 1.1. SupportersSupporters

a)a) Courts should correct injustices when other branches or Courts should correct injustices when other branches or state governments refuse to do so.state governments refuse to do so.

b)b) Courts are the last resort for those without the power or Courts are the last resort for those without the power or influence to gain new laws.influence to gain new laws.

2.2. CriticsCritics a)a) Judges lack expertise in designing and managing Judges lack expertise in designing and managing

complex institutions.complex institutions. b)b) Initiatives require balancing policy priorities and Initiatives require balancing policy priorities and

allocating public revenues.allocating public revenues. c)c) Courts are not accountable, because judges are not Courts are not accountable, because judges are not

elected.elected. 3.3. Possible reasons for activismPossible reasons for activism

a)a) Adversary culture, emphasizing individual rights and Adversary culture, emphasizing individual rights and suspicion of government power.suspicion of government power.

b)b) Easier to get standing in courtsEasier to get standing in courts D.D. Legislation and the courtsLegislation and the courts

1.1. Laws and the Constitution are filled with vague language, Laws and the Constitution are filled with vague language, which increase courts’ opportunities to design remedies.which increase courts’ opportunities to design remedies.

2.2. Federal government is increasingly on the defensive in court Federal government is increasingly on the defensive in court cases; laws induce court challenges.cases; laws induce court challenges.

3.3. Attitudes of federal judges affect their decisions when the law Attitudes of federal judges affect their decisions when the law gives them latitude.gives them latitude.

VIII.VIII. Checks on judicial powerChecks on judicial power A.A. Basic restraints on judicial power Basic restraints on judicial power

1.1. Judges have no enforcement mechanisms (police Judges have no enforcement mechanisms (police force or army); thus, their decisions can be resisted or force or army); thus, their decisions can be resisted or ignored (for instance, Bible reading in schools, ignored (for instance, Bible reading in schools, segregation in schools).segregation in schools).

2.2. Resistance depends on visibility of disobedience.Resistance depends on visibility of disobedience. B.B. Congress and the courtsCongress and the courts

1.1. Confirmation and impeachment proceedings Confirmation and impeachment proceedings gradually alter composition of courts, though gradually alter composition of courts, though impeachment is an extraordinary and unusual event.impeachment is an extraordinary and unusual event.

2.2. Changing the number of judges gives president Changing the number of judges gives president more or fewer appointment opportunities.more or fewer appointment opportunities.

3.3. Supreme Court decisions can be undone by:Supreme Court decisions can be undone by: a)a) Revising legislationRevising legislation b)b) Amending the ConstitutionAmending the Constitution c)c) Altering jurisdiction of the CourtAltering jurisdiction of the Court d)d) Restricting Court remediesRestricting Court remedies

VIII.VIII.Checks on judicial power Checks on judicial power (cont.)(cont.)

C.C. Public opinion and the courtsPublic opinion and the courts 1.1. Defying public opinion—especially the opinion of Defying public opinion—especially the opinion of

the elites—may destroy the legitimacy of the institution.the elites—may destroy the legitimacy of the institution. 2.2. Opinion in realigning eras may energize Court.Opinion in realigning eras may energize Court. 3.3. Public confidence in the Supreme Court since Public confidence in the Supreme Court since

1966 has varied with popular support for the 1966 has varied with popular support for the government, generally.government, generally.

D.D. No overt attempts to curb judicial activismNo overt attempts to curb judicial activism 1.1. Activism has increased because government Activism has increased because government

does more, and courts must interpret the laws.does more, and courts must interpret the laws. 2.2. Activist ethos of judges is now more widely Activist ethos of judges is now more widely

accepted.accepted.