UNIT 6: Judiciary Branch

“The Supreme Court is a constitutional convention in continuous session.”

-Woodrow Wilson

Judiciary Branch

• Judicial review

Judicial Review…

• Marbury v. Madison. Gave the Supreme Court what power?

• Reviews Constitutionality of:

– State and federal legislation

– Actions of chief executives

– Decisions of other courts

*The Courts generally have tried to avoid deciding conflicts between Congress and the President. (called “political questions”)*

Judiciary Branch

• Judicial review

• Activism vs Constructivism(Restraint)

• Founders’ view

• Dominant judicial issues

– Slavery (up to Civil War)

– Government and the economy (Civil War to 1936)

– Government and political liberty (1936-present)

Judicial Activism vs. Judicial Restraint

Judicial Activism

The tendency of judges to interpret the Constitution according to their own views

Judges should discover general principles underlying the Constitution, amplify them, and apply them to cases.

Judicial Restraint

Those who believe that the Supreme Court in its rulings should defer to the elective institutions of government

Belief that judges should only judge; i.e. confine themselves to applying rules clearly stated in the language of the Constitution.

Activity: Activism or Restraint?

1. Justice Harry Blackmun in dissenting opinion in Furman v. Georgia (1972) (voided the death penalty) stated, "Cases such as these provide for me an excruciating agony of the spirit I yield to no one in the depth of my distaste antipathy and indeed abhorrence, for the death penalty. were I a legislator I would vote against the death penalty. . I do not sit, however as a legislator... our task here .. . is to vote pass on constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative or congressional action, or our distaste for such action to guide our judicial decision.”

Activity: Activism or Restraint?

2) Justice Stephens in Clinton v. New York City (line-item veto) argues that the law is unconstitutional in part, because Article II section 7 stases that a bill be "presented to the President of the United States if he approve he shall sign it, if not he shall return it." This leaves no room for another option.

Activity: Activism or Restraint?

3) In Texas v. Johnson (1989) Justice Brennan found that Johnson's conviction for flag desecration is inconsistent with the first amendment. “The first amendment forbids the abridgment only of 'speech' but we have long recognized that its protection does not end at the spoken word.”

CURRENT U.S.

SUPREME COURT

U.S. Supreme Court

The United States Supreme Court is commonly referred to as the "highest court in the land." Judges on this court possess the "power of judicial review", granting them the responsibility of

interpreting the US Constitution. Judges on the Supreme Court are called justices. The presiding officer of the court is the Chief

Justice and his eight colleagues are called Associate Justices. The Chief is widely regarded as being "first among

equals" in that he has no more or no less power over discussion, debate and voting than do any of the other eight members of the Court. The current court is presided over by John Roberts thus

making this the "Roberts Court."

U.S. Supreme Court

JOHN ROBERTS

• Chief Justice

• Born-1955

• Education-Harvard Law

• Resume

-Supreme Court Clerk

-White House Council

-Judge, US Court of Appeals for D.C.

• Appointed by George W. Bush, 2005

U.S. Supreme Court

ANTONIN SCALIA

• Senior Associate Justice

• Born-1936

• Education-Harvard Law

• Resume

-Judge, US Circuit Court

of Appeals for D.C.

• Appointed by Ronald Reagan,

1986

U.S. Supreme Court

ANTHONY KENNEDY

• Associate Justice

• Born-1936

• Education-Harvard Law

• Resume

-Judge, 9th Circuit

Court of Appeals

• Appointed by Ronald Reagan,

1988

U.S. Supreme Court

CLARENCE THOMAS

• Associate Justice

• Born-1948

• Education-Yale Law

• Resume

-Judge, US Circuit Court of Appeals for D.C.

• Appointed by George H.W. Bush, 1991

U.S. Supreme Court

RUTH BADER-GINSBURG

• Associate Justice

• Born-1933

• Education-Columbia Law

• Resume

-Judge, US Circuit Court of

Appeals for D.C.

• Appointed by Bill Clinton, 1993

U.S. Supreme Court

STEPHEN BREYER

• Associate Justice

• Born-1938

• Education-Harvard Law

• Resume

-Supreme Court Clerk

-Judge, 1st Circuit Court of Appeals

• Appointed by Bill Clinton, 1994

U.S. Supreme Court

SAMUEL ALITO

• Associate Justice

• Born-1950

• Education-Yale Law

• Resume

-Judge, 3rd Circuit Court of

Appeals

• Appointed by George W. Bush,

2005

U.S. Supreme Court

SONIA SOTOMAYOR

• Associate Justice

• Born-1954

• Education-Yale Law

• Resume

-Judge, US District Court, Southern New York

-Judge, 2nd Circuit Court of Appeals

• Appointed by Barack Obama, 2009

U.S. Supreme Court

ELENA KAGAN • Junior Associate Justice

• Born-1950

• Education-Harvard Law

• Resume

-US Solicitor General, Obama Administration

-White House Counsel and Domestic Policy Advisor, Clinton Adm

-Dean Harvard Law School

• Appointed by Barack Obama, 2010

Activist Liberal

Loose Constructionist

Restraint Conservative

Strict Constructionist

Swing Voter Moderate Centrist

REHNQUIST COURT 1986-2005 COURT MEMBERS STAYED SAME FROM 1994 UNTIL 2005

Stevens Souter

Ginsburg Breyer-’94

O’Connor Kennedy

Rehnquist-Chief Scalia

Thomas

Transition to the Current Court: 1. 2005--O’Connor expresses her desire to Retire—husband has Alzheimers & needs constant care 2. John Roberts is nominated to replace her 3. Sept 2005—William Rehnquist dies over Labor Day Weekend—Bush announces Roberts to replace

Rehnquist as Chief --Continue Conservative Leadership (former Rehnquist clerk)

4. O’Connor agrees to stay on until Bush can find a suitable replacement ---Bush nominates Samuel Alito…conservative…nickname “Scalito” 5. 2009—Souter announces his retirement (didn’t like the Washington life)—Obama gets first

appointment within 6 months of becoming President—What type of Justice will he appoint?.... --Sonia Sotomayor: first Latino in history

6. Spring 2010—John Paul Stevens announces his retirement—Obama 2nd appointment in two years—Influence future of the Court?....

--Elena Kagan: single, white, female—puts 3 females on Court for first time in history 7. Current Court—Major decisions are left to single Swing Voter—ANTHONY KENNEDY—”Kennedy

Court”….WHO IS NEXT TO GO????...IT MATTERS WHO YOU VOTE FOR!!!!!!

Roberts

ROBERTS COURT 2005-PRESENT A BALANCED BUT CONSERVATIVE COURT?...5-4 DECISIONS IN MANY MAJOR CASES

Stevens Ginsburg

Breyer Sotomayor-’09

Roberts-Chief Scalia

Thomas

Roberts-Chief Scalia

Thomas Alito… “Scalito”

Kennedy Ginsburg

Breyer Sotomayor-’09

Kagan-’10

Judiciary Branch

• Judicial review

• Activism vs Constructivism(Restraint)

• Founders’ view

• Dominant judicial issues

– Slavery (up to Civil War)

– Government and the economy (Civil War to 1936)

– Government and political liberty (1936-present)

Judiciary Branch

• 3 Major congressional acts created the groundwork for federal court system:

– Judicial Act of 1789- created district courts to handle original jurisdiction cases in the states; circuit riding

– Court of Appeals act of 1891- appellate court created to handle cases on appeal from district courts

– Judicial Act of 1925- granted discretionary powers to the Supreme Court for accepting cases; William Howard Taft is key figure

Judiciary Branch

• Federal court structure

– Each state has its own structure, so……we have a dual court system

– Federal courts can decide cases only in which the Constitution gives them authority

Judiciary Branch

• US District Court

– Entry level court

– Handles 90% of case load

– 500, 000 cases per year in each district court

– Original jurisdiction- for both civil and criminal cases

– 94 district courts

– Georgia has 3: Northern-Atlanta (11 judges), Middle-Macon (4 judges), Southern-Savannah (3)

Judiciary Branch

• US Circuit Court of Appeals – Intermediate court – Court of Appeals Act of 1891 creates it – US has 12 circuits, with a 13th (Court of Appeals for

the Federal Circuit) acting in Washington D.C. – Circuit courts have appellate jurisdiction-cases heard

on appeal from district courts – 100, 000 cases a year – AL, Ga, Fl are in the 11th Circuit Court of Appeals-

why?= drugs – Washington DC Appeals court= very important

Judiciary Branch

• Supreme Court – Court of last resort – Has both appellate and original jurisdiction – Only court established by Constitution – Chooses cases it considers; 8000 cases are year are

appealed to SC – Recent courts hear fewer and fewer cases (judicial

restraint?) – 40-50% are 9-0 cases; about 20% are 5-4 (growing?) – Importance of stare decisis (let it stand) – Court begins term first Monday in October and ends just

before 4th of July

Judiciary Branch

• Other Federal Courts

– Territorial courts- American territories

– DC Courts- hear local court cases

– Court of international trade-foreign business practices

– US Tax Court- taxpayers vs IRS

– Court of Federal Claims- citizens claims against US govt. or officials

– Military courts

– Court of Veterans Appeals

The Structure of the Federal Judicial System

Important Terms…

• Attorney General • Solicitor General • En Bank- all judges will hear a case rather than a

panel. Used for complex or significant cases where it is of significance to the public.

• Litigants • Plaintiff • Defendant • “standing” to sue- who is authorized to start a

lawsuit • Habeas corpus- an arrested person must be informed

of charges against them.

Supreme Court Cases

• Once cert is granted….. – Lawyers for each side submit briefs (sets forth facts of the

case, gives arguments for each side, discusses precedent); justices also write memos attempting to convince each other

– Oral arguments are presented (30 minutes each and judges can interrupt with questions)

– Because the Fed Govt. is usually a plaintiff or defendant, Solicitor General, decides which cases the Fed Govt. will appeal

– “friends of the court” may offer opinions (Amicus Curiae briefs); some argue there are too many and they are too influential

Supreme Court Cases

– Justices now develop opinions and decisions, often aided by their clerks

– Justices meet in Conference to exchange ideas and vote

– Chief Justice counts votes and writes or assigns decision

• Per curiam- unsigned opinion • Opinion of the court-majority opinion • Concurring- agrees but uses different reasoning • Dissenting-minority opinion; no precedent but may be used

as basis for later appeals or reversals • Today there are A LOT of opinions written

Supreme Court & Public Policy

• Supreme Court creates policy by: – Interpreting the Constitution

– Extending the reach of existing law

– Designing remedies that involve judges acting in administrative or legal ways

– Over 130 laws have been declared unconstitutional, over 260 cases have been overturned

– Stare decisis is not what it used to be…….judicial activism has increased over time

Checks on Judicial power

Public Opinion

The Courts do not deviate too far from public opinion, because:

1. Reliance on other public officials to execute decisions.

2. May be overruled with new laws or constitutional amendments.

3. Concern for its reputation/credibility.

4. The potential for the impeachment of judges.

5. Congressional control of the Supreme Court’s appellate jurisdiction and/or changing the number of justices on the Court.

6. Pass legislation that clarifies existing laws and, thus, overturns the courts.

Frontline – The Plea

http://www.pbs.org/wgbh/pages/frontline/shows/plea/view/

The Supreme Court

US Supreme Court – three Videos

• SCOTUS parts 1, 2, and 3 YouTube

The U.S. Constitution and the Appointment of Supreme

Court Justices

Article II, Section 2 describes the

appointment powers of the President:

“He shall have Power, by and with the

Advice and Consent of the Senate

…to… nominate Judges of the Supreme

Court….”

The U.S. Constitution and the Supreme Court

Article III describes the judicial power of the

Supreme Court:

“The judicial Power of the United States, shall

be vested in one supreme Court, and in such

inferior Courts as the Congress May

…establish. The Judges, both of the supreme

and inferior Courts, shall hold their Offices

during good Behavior…”

Supreme Court Nominations

“…..a justice should be a combination of Justinian, Jesus Christ, and John Marshall”- Oliver Wendell Holmes

Factors That Influence Supreme Court Nominations

Factors That Influence Supreme Court Nominations

Party affiliation (80% or higher)

Judicial Philosophy

“Litmus Test” - where nominees stand on controversial issues like abortion

Background of nominee (education, experience, race, gender, ethnicity, etc.)

Political favors

Interest group input

American Bar Association certification

Securing a “safe” nominee

What does this cartoon tell us about factors considered in the nomination/confirmation process…..

U.S. Supreme Court Confirmation Process

Stage 1: Presidential

Nomination

Stage 2: Senate Judiciary

Committee Hearing

QuickTime™ and a

TIFF (Uncompressed) decompressorare needed to see this picture.

Stage 3: Full Senate

Vote

WHITE HOUSE

REVIEW

Certification

MEDIA

Influence

FBI

Investigation

Q uickTim e™ and aTI FF ( Uncom pr essed) decom pr essor

ar e needed t o see t his pict ur e.

INTEREST

GROUP

Influence

Stage 4: Oath of Office?

• Borking

– Kennedy’s speech, the Biden Report, accusations of slander, Borks’ video rental history and the Video Privacy Protection Act

– Who got his seat?

Confirmation Hearings

"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, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.“ -Ted Kennedy

I will take this case all the way to the

Supreme Court …

• Writ of Certiorari (i.e."Rule of Four”)

– Annual docket = 8,000 cases

• Fewer than 100 heard or reviewed

• $300 filing fee

– In forma pauperis= right to be heard at

no expense.

– Often, interest groups will foot the bill.

• Quorum = 6

Impact of Rulings

When making their decisions, SC justices consider the following:

1. Stare Decisis or precedent... “let the decision stand”.

Why important? 1. Stability

2. Legitimacy

3. Equality

2. Personal Ideology (Activism vs. Restraint?)

3. Public Opinion See following slides for 2 & 3

• “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender tohis detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

-Chief Justice William O. Douglas

Griswold v. Connecticut