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The Judiciary
Name that judge?
Questions to focus on• Is the Supreme Court a legal institution or a politic
al institution? • How is the judicial branch structured?• What is judicial review? How did it come about?• HOW and WHY is the judiciary “independent?”• How does a case reach the Supreme Court?• How is a decision reached? How is an opinion
written?• Has the growing politicization of the nomination
process threatened judicial independence? • Who or what influences the court’s decisions?• Should courts make policy? What are judicial
activism and restraint? Which is preferable?• What should be the purpose of courts? What is th
eir role in a democracy?
How is the judicial branch structured?
• Article III: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” – What are the “inferior courts?”
• Circuit Court of Appeals– Less than 1% of cases that go to Court of Appeals end up
moving on to Supreme Court
• District Courts (90 in total - at least one per state)
• More than 95% of nation’s legal cases are settled in the STATE courts (not federal)
How is the Judicial Branch structured?
• Appellate Jurisdiction– Supreme Court may consider a case on
appeal: after it has been heard by a lower court
• Must be a controversy! Court will not deal with hypothetical questions!
• Original Jurisdiction – The Supreme Court is the FIRST court to
hear the case• Ex: State v. State; any case dealing with
ambassadors or foreign affairs
How is the Judicial Branch structured?
United States Supreme Court
Circuit Court of Appeals
District Courts
NYS Supreme Courts
Appellate Division (4
Depts.)
NYS Court of Appeals
Judicial Review
• Ambiguity over who interprets Constitution
• Marbury v. Madison (1803)– Midnight Appointments– Judiciary Act of 1789 and the
“writ of mandamus” – John Marshall’s “reversal” – Jefferson: “Constitution as a
mere thing of wax”
Checks on the Court
• Nomination and Confirmation Powers
• Congress can rewrite legislation • Constitutional Amendments • Justice Department can choose to
fight or ignore issues • Public opinion???????
The “Independent” Branch
• Federalist No. 78– How is the judicial branch the “least
political” of the two branches? – What is the function of the judicial
branch? – Why is the judicial branch considered
“independent?” Why is this independence necessary?
How does a case reach the court?• Supreme Court has power to pick and choose - how
to decide? – Usually larger constitutional issue involved
• Writ of Certiorari: losing party in a lower case explains in writing why the court should take the case– Four of Nine justices must agree– 7,000 apply but only approx. 100 are granted– Solicitor General: represents federal government in front of
Supreme Court – Per Curiam decisions: court rules without hearing oral
arguments– Amicus Curiae: “friend of the court” briefs
• Filed by interest groups and others on behalf of a particular issue
How is a decision reached?• Briefs are submitted in advance• 30 minute oral arguments for each side• Judicial conference: 9 judges in a top secret
meeting • Opinions:
– Majority opinion : 5 justices agree on interpretation of law
– Plurality opinion: 5 justices arrive at same decision but have differing interpretations of the law
– Concurring opinion: a single justice who votes with the majority but disagrees with their reasoning
– Dissenting opinion: reasons for voting against the majority (usually majority opinions decades later!)
How is a decision reached?• Judges are obviously restricted by the law
– Sometimes they are ruling on the meaning of the Constitution but most often on federal statutes passed by Congress
– Much of the Constitution is open to interpretation• “Right to bear arms,” “Unreasonable search and seizure”
– “Making law” – clarifying ambiguities left by Founders and/or Congress
• Example: Civil Rights Act of 1964 prohibited workplace discrimination but did not mention sexual harassment
– Court went ahead and said sexual harassment was unlawful
– Common law system• Based on theory of precedence (stare decisis) • Benefits: predictability - take past decisions into account when ruling on
the case
Judicial Activism v. Restraint• Restraint: defer judgment to the elected institutions
– Typically involves an originalist reading of the Constitution and statutes
– Judicial restraint prevents courts from moving too far beyond public opinion and eroding its legitimacy
• Activists: courts should not be overly deferential to existing legal principles or judgments of elected officials – Interpret the Constitution and statutes LOOSELY– Activists who seek to promote civil rights find justification in
the Constitution’s vague language. – When judges assume activist role are they violating
principles of self-government? – When court struck down a law regarding protections for
homosexuals that had been passed overwhelmingly by Colorado voters, Scalia wrote a nasty dissent decrying the usurpation of democracy
• Is the Roberts Court an activist court?????
Judicial Activism v. Restraint• Activist used to equal liberal but
conservatives can be activists as well – During 1990s, Rehnquist court struck down
economic regulation laws (ie. tightening up the interstate commerce clause), limited civil rights protection, decided election in Bush v. Gore
– Brown v. Board was NOT activism because the Constitution had the provision for “equal protection under the law” in the 14th amendment to prevent racial discrimination
• To an extent, all justices are activists because the laws are ambiguous. To another extent, all justices are restrained because they must abide by the Constitution and the laws
Public Opinion and the Court• Brown v. Board of Education (1954)
– “We (unanimously) conclude that in the field of public education the doctrine of "separate but equal" has no place.”
– “Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees [follow-up orders] in these cases presents problems of considerable complexity…..”
• Brown II (1955)– Schools should be integrated “with all
deliberate speed.” – By 1964, less than 2% of schools are
integrated!
The Nomination Process• “Whenever you put a man on the
Supreme Court he ceases to be your friend.” - Harry Truman
• Presidents can influence policy LONG after they leave office
• Supreme Court judges are HIGHLY scrutinized yet are confirmed easily
• Senatorial Courtesy (lower courts): – Senator from the state in which a vacancy
arises should be given a say in the appointment
• So long as the Senator is of the same party!
The Nomination Process• The “Litmus Test”
– What issues do David Brooks and Gail Collins raise in their article?
– What is a “litmus test?”• Withholding support for a nominee based on how he/she
would rule on a specific case or issue – Ex: Senators ask a nominee about their views on abortion
or gay marriage
• Why is this a problem?
– What issues are raised in this video? – Confirmation of Sonia Sotomayor
• What qualifications should be considered when nominating someone to the bench?
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