The Federal JudiciaryThe Federal Judiciary

“A more imposing judicial power was never constituted by any people” -de Tocqueville

“The Supreme Court serves as the ultimate interpreter and protector of our most fundamental right - the rights set forth in the Constitution.” - Trachtman

Section 1: Background of the Judicial Branch

Article III

Dual System:

Federal Courts and State courts work concurrently

The Justices

Chief Justice John Roberts (W. Bush, conservative)

Alito (W.Bush, conservative)

Scalia (Reagan, conservative)

Breyer (Clinton, liberal)

Kennedy (Regan, swing)

Souter (H.W.Bush, liberal)

Thomas (H.W.Bush, conservative)

Ginsburg (Clinton, liberal)

Stevens (Ford, Liberal)

Justices are appointed for LIFE.

Why?

To keep them out outside the political process

They must go through a confirmation process by the Senate

The only way to remove them is to

Impeach

Retire

Die

Marbury v Madison

Marbury and others were appointed to posts created in the last days of Adams presidency.

As Secretary of State Madison did not fill them on Jefferson’s orders

Question: Are they entitled to their commission?

Normally this case wouldn’t reach the Supreme Court, but the Judiciary Act of 1789 allowed suits like this to bypass the lower courts

Marshall felt that the Judiciary Act violated the Constitution, felt that Congress had overstepped its authority. Marbury was not entitled to the commission because it was an unconstitutional law

Supreme Court can review acts of Congress and can invalidate those that conflict with the Constitution

Judicial Review and the Constitution became the SUpreme Law of the Land

Judicial branch became and equal partner in the 3 branched government

TO WRITE:

If Marshall had sided with Marbury it would be ignored by Jefferson, if he denied Marbury it would look like the court was a pawn of the President. The way he figured it out he had dodged the confrontation and established the rights of the Court to void a law

Its GENIUS!!!

Judicial Review

The right of the federal courts to declare laws of Congress and acts of the executive branch void and unenforceable if they are judged to be in conflict with the constitution

Fletcher v Peck (1810) -

The first case in which the Court overturned a state law on constitutional grounds

This established the Court’s right to use judicial review on state laws

McCulloch v Maryland 1819

Said that judges in each state are bound by the Supreme Law of the Land

2 approaches to judicial interpretation

Strict Constructionists -

the view that judges should decide cases strictly on the basis of the language of the laws of the Constitution

Activist Approach -

Judges should discern the general principles underlying laws or the Constitution and apply them to modern circumstances

Judges can be political and still believe the language of the COnstitution binds them, it does not work in a liberal-conservative sense like you might imagine.

Seventy years ago judicial activists tended to be conservative and strict constructionists tended to be liberal, today the opposite is true

Party background - makes a difference on how they will behave

a. judges who are Democrats are more likely to make liberal decisions and Republican judges are more likely to make conservative ones

why?

Section 2: How do we select judges?

b. Presidents often make the mistake that they will know how their appointment will behave

c. example: Souter-Liberal by Bush, Kennedy - swing vote but Reagan

Senatorial Courtesy

gives heavy weight to the preferences of the Senators from the state where a federal district judge is to serve

a. Usually Senate will not confirm a district judge if the senior senator from that state where the district tis located objects (if in the Pres’ party)

Litmus Test

Presidents getting the DOJ to find candidates that are not only supported by their party’s senators but also reflect the judicial and political philosophy of the President

Senate Hearings

Try to pin down their views on things

Rehnquist - a ok

Bork - defeated by liberals because of pro-life policy

Senate has rejected only 29 out of 145 Supreme Court nominees presented to it