Chapter 14: The Judiciary Chapter 14: The Judiciary (Mr. Hughes’s favorite!!!)(Mr. Hughes’s favorite!!!)

Theme A: History of the Theme A: History of the JudiciaryJudiciary• The power of the Supreme Court evolved slowly. The power of the Supreme Court evolved slowly.

Under the leadership of Chief Justice John Marshall Under the leadership of Chief Justice John Marshall (aka “The Chief”), 3 things happened that (aka “The Chief”), 3 things happened that established the Court’s institutional legitimacy:established the Court’s institutional legitimacy:– Defeated impeachment of Samuel P. Chase. Defeated impeachment of Samuel P. Chase.

Impeachment was purely political. Validated the doctrine Impeachment was purely political. Validated the doctrine of judicial independence.of judicial independence.

– The issuance of a single majority opinion that allowed the The issuance of a single majority opinion that allowed the court to speak w/one authoritative voice rather than each court to speak w/one authoritative voice rather than each justice writing separatelyjustice writing separately

– Assumption of the power of judicial review w/Assumption of the power of judicial review w/Marbury v. Marbury v. MadisonMadison, making the SC an equal partner in govt , making the SC an equal partner in govt w/Congress and Prez.w/Congress and Prez.

3 eras of Supreme Court 3 eras of Supreme Court decision-making:decision-making:• 1787 – 18651787 – 1865 Federal – state Federal – state

relations and slaveryrelations and slavery were the were the big issues. Federal preeminence big issues. Federal preeminence was written into K theory, but only was written into K theory, but only after the CW was the theory after the CW was the theory applied. Judicial review used applied. Judicial review used sparingly, attesting to SC’s still sparingly, attesting to SC’s still uncertain status.uncertain status.

3 eras of Supreme Court 3 eras of Supreme Court decision-making:decision-making:• 1865 – 1937 1865 – 1937 Relationship b/w the govt and the Relationship b/w the govt and the

economyeconomy was the big issue. SC acted to support was the big issue. SC acted to support property rights and held that the due process clause property rights and held that the due process clause of the 14th Amendment protected commercial of the 14th Amendment protected commercial enterprises from some forms of regs. SC reflected enterprises from some forms of regs. SC reflected laissez-faire attitude of the time. SC did however laissez-faire attitude of the time. SC did however act against injustices of capitalism. In balancing act against injustices of capitalism. In balancing public interest and private property rights, decisions public interest and private property rights, decisions became riddled w/inconsistencies in deciding b/w became riddled w/inconsistencies in deciding b/w what is reasonable or unreasonable in terms of what is reasonable or unreasonable in terms of regulations, and inter- vs. intra-state regs. regulations, and inter- vs. intra-state regs. Necessities of the Great Depression compelled a Necessities of the Great Depression compelled a revision in K theory on economic issues.revision in K theory on economic issues.

3 eras of Supreme Court 3 eras of Supreme Court decision-making:decision-making:• 1938 – present 1938 – present SC has switched SC has switched

its focus to the protection of its focus to the protection of personal libertiespersonal liberties. Brought about . Brought about in part by FDRs effort to pack the in part by FDRs effort to pack the court for New Deal purposes. SC court for New Deal purposes. SC allowed govt a freer hand in econ allowed govt a freer hand in econ regulation, and took up the regulation, and took up the stewardship of civil liberties. stewardship of civil liberties.

Structure of the Federal Structure of the Federal CourtsCourts

• Two kinds of federal courts were created by Two kinds of federal courts were created by Congress to ease the burden on the SC.Congress to ease the burden on the SC.– Constitutional courts: exercise Article III judicial Constitutional courts: exercise Article III judicial

powerspowers• Judges serve during “good behavior” (life)Judges serve during “good behavior” (life)• Examples: district courts (94), Courts of Appeals (12)Examples: district courts (94), Courts of Appeals (12)

– Legislative courtsLegislative courts• Created by Congress for specialized purposesCreated by Congress for specialized purposes• Judges have fixed termsJudges have fixed terms• Judges can be removedJudges can be removed• Example: Court of Military AppealsExample: Court of Military Appeals

The Three CourtsThe Three Courts

Selecting judgesSelecting judges • all constitutional court judges are nominated by all constitutional court judges are nominated by

prez and confirmed by Senate.prez and confirmed by Senate.• Party background has some effect on judicial Party background has some effect on judicial

behavior, but rulings also influenced by: facts of behavior, but rulings also influenced by: facts of the case, precedent, lawyers’ argumentsthe case, precedent, lawyers’ arguments

• Senatorial courtesy: appointees for fed courts Senatorial courtesy: appointees for fed courts are reviewed by senator(s) of that state, if the are reviewed by senator(s) of that state, if the senator(s) is/are of the prez’s partysenator(s) is/are of the prez’s party

The litmus testThe litmus test– Presidents seek judicial nominees Presidents seek judicial nominees who share their political ideologywho share their political ideology– Has caused different circuits to come to Has caused different circuits to come to

different rulings about similar casesdifferent rulings about similar cases– Raises concerns that ideological (litmus) Raises concerns that ideological (litmus)

tests are too dominant, and has caused tests are too dominant, and has caused delays in Senate confirmationsdelays in Senate confirmations

– Greatest impact is at Supreme Court level, Greatest impact is at Supreme Court level, where there is no senatorial courtesywhere there is no senatorial courtesy

The jurisdiction of federal The jurisdiction of federal courtscourts

• Dual court system – one State, one Dual court system – one State, one FederalFederal

• Another example of federalism in our Another example of federalism in our systemsystem

• Federal cases listed in Article III and 11th Federal cases listed in Article III and 11th AmendmentAmendment– Federal question cases: involve K, federal law, or Federal question cases: involve K, federal law, or

treatiestreaties– Diversity cases: involve different states, or Diversity cases: involve different states, or

citizens of different statescitizens of different states• Some cases can be tried in fed court OR state courtSome cases can be tried in fed court OR state court

– If both fed and state laws have been broken (dual If both fed and state laws have been broken (dual sovereignty)sovereignty)

• State cases can sometimes be appealed to SCOTUSState cases can sometimes be appealed to SCOTUS

Route to the Supreme Route to the Supreme CourtCourt

• Most federal cases begin in district courtMost federal cases begin in district court– Most are straightforward; do not lead to any new Most are straightforward; do not lead to any new

public policypublic policy• Supreme Court picks cases it wants to hear Supreme Court picks cases it wants to hear

on appealon appeal– Requires agreement of 4 justices to hear case – Requires agreement of 4 justices to hear case –

to issue writ of certiorari (Rule of Four)to issue writ of certiorari (Rule of Four)

– Usually deals withUsually deals with•Significant federal or K questionSignificant federal or K question•Conflicting decisions by circuit courtsConflicting decisions by circuit courts•K interpretation by one of the highest state K interpretation by one of the highest state

courts, about state or fed lawcourts, about state or fed law– Fewer than 100 cases per term (year) Fewer than 100 cases per term (year)

are granted certare granted cert

Getting to court – Getting to court – – Why it is difficultWhy it is difficult

•SC rejects all but a few applicationsSC rejects all but a few applications for certfor cert•Costs of appeal are highCosts of appeal are high

– Costs can sometimes be lowered:Costs can sometimes be lowered: In forma pauperis: In forma pauperis: plaintiff is indigent, costs plaintiff is indigent, costs

paid by taxpayerspaid by taxpayers Indigent defendant in criminal trial: atty Indigent defendant in criminal trial: atty

provided by taxpayer, no charge to defendantprovided by taxpayer, no charge to defendant Payment by interest groups (ACLU, NRA, etc.)Payment by interest groups (ACLU, NRA, etc.)

Standing: deciding who is Standing: deciding who is entitled to bring a caseentitled to bring a case

•Must be a real controversy – no “friendly” Must be a real controversy – no “friendly” casescases

•Personal harm must be demonstratedPersonal harm must be demonstrated•Being a taxpayer does not automatically Being a taxpayer does not automatically

entitle a person to bring suit against govt. entitle a person to bring suit against govt. Somewhat relaxed in 1st Am. CasesSomewhat relaxed in 1st Am. Cases

•Sovereign immunity: govt must consent to Sovereign immunity: govt must consent to being suedbeing sued

Supreme Court HearingsSupreme Court Hearings

Supreme Court Deciding Supreme Court Deciding CasesCases

Supreme Court in actionSupreme Court in action• Oral arguments after submitting briefs in advance Oral arguments after submitting briefs in advance

– Each side has ½ hr, but justices can interrupt Each side has ½ hr, but justices can interrupt w/questionsw/questions

– Role of solicitor general: decides what cases the fed Role of solicitor general: decides what cases the fed govt will appeal to the Courtgovt will appeal to the Court• Also submits amicus curiae briefs on many cases; SC has Also submits amicus curiae briefs on many cases; SC has

high regard for these briefshigh regard for these briefs– Amicus briefs may be submitted if parties agree or SC Amicus briefs may be submitted if parties agree or SC

grants permission, which they do about 85% of the timegrants permission, which they do about 85% of the time– Justices influenced by many sources…law journals, Justices influenced by many sources…law journals,

international law, precedent, political climate (RARELY, international law, precedent, political climate (RARELY, and always justifiably), personal convictions…and always justifiably), personal convictions…

In conference:In conference:– Chief Justice, speaks first, votes lastChief Justice, speaks first, votes last– Chief Justice assigns opinion writing duties, if Chief Justice assigns opinion writing duties, if

voting w/majority. If voting w/minority, assigns voting w/majority. If voting w/minority, assigns dissenting opinion and senior associate justice dissenting opinion and senior associate justice in majority assigns the majority opinionin majority assigns the majority opinion

– Concurring opinions – justice agrees w/majority, Concurring opinions – justice agrees w/majority, but for different or additional reasonsbut for different or additional reasons

– Dissenting opinions – explains logic of dissent. Dissenting opinions – explains logic of dissent. These often become basis for future majority These often become basis for future majority opinion on those rare occasions the SC reverses opinion on those rare occasions the SC reverses an earlier opinionan earlier opinion

Voting patterns: Voting patterns: – 1960s Warren Court –1960s Warren Court –

• liberal, activist in terms of civil liberties and civil rightsliberal, activist in terms of civil liberties and civil rights– 1970s and 1980s Burger Court – 1970s and 1980s Burger Court –

• generally balanced b/w conservatives (Burger, generally balanced b/w conservatives (Burger, Rehnquist, O’Connor), liberals (Brennan, Marshall, Rehnquist, O’Connor), liberals (Brennan, Marshall, Blackmun, Powell), and swing voters White and Blackmun, Powell), and swing voters White and Stevens. As the swing vote goes, so goes the Court.Stevens. As the swing vote goes, so goes the Court.

– 1990s Rehnquist Court 1990s Rehnquist Court • Balanced, leaning toward conservativeBalanced, leaning toward conservative

– Conservative: Rehnquist, Scalia, ThomasConservative: Rehnquist, Scalia, Thomas– Liberal: Ginsberg, Breyer, Stevens, SouterLiberal: Ginsberg, Breyer, Stevens, Souter– Swing voters: O’Connor, KennedySwing voters: O’Connor, Kennedy

SCOTUS TodaySCOTUS Today• The Roberts CourtThe Roberts Court

– Balanced, leaning conservativeBalanced, leaning conservative– Liberal: Ginsberg, Breyer, Kagan, Liberal: Ginsberg, Breyer, Kagan,

SotomayorSotomayor– Conservative: Roberts, Alito, Scalia, Conservative: Roberts, Alito, Scalia,

ThomasThomas– Swing Vote: KennedySwing Vote: Kennedy

THE POWER OF THE FEDERAL THE POWER OF THE FEDERAL JUDICIARYJUDICIARY• The power to make policyThe power to make policy

•Over 130 laws declared unconstitutionalOver 130 laws declared unconstitutional•Over 260 prior cases overturned (not Over 260 prior cases overturned (not

following stare decisis)following stare decisis)•Courts more likely to tackle political Courts more likely to tackle political

questions than beforequestions than before• Judges can order massive remedies based Judges can order massive remedies based

on K or on interpretation of federal lawson K or on interpretation of federal laws

Views of judicial activismViews of judicial activism– SupportersSupporters

•Courts should correct injustices when other Courts should correct injustices when other branches or state govts fail tobranches or state govts fail to

•Courts are the last resort of regular people Courts are the last resort of regular people (those not wealthy/powerful enough to have (those not wealthy/powerful enough to have true access to policymakerstrue access to policymakers

Views of judicial activism Views of judicial activism – CriticsCritics

• Judges lack expertise in policymaking Judges lack expertise in policymaking • Initiatives involve balancing policy priorities Initiatives involve balancing policy priorities

and allocating taxpayer $; judges not and allocating taxpayer $; judges not qualified or informed enough to do thatqualified or informed enough to do that

• Judges are unelected and therefore Judges are unelected and therefore unaccountableunaccountable

– SC decisions can be undone bySC decisions can be undone by•Revising legislationRevising legislation•Amending KAmending K•Altering jurisdiction of the CourtAltering jurisdiction of the Court•Restricting Court remediesRestricting Court remedies

Public opinion and the Public opinion and the courtscourts

– Defying public opinion could be Defying public opinion could be dangerous for the legitimacy of the SCdangerous for the legitimacy of the SC

– Opinion in realigning eras may energize Opinion in realigning eras may energize the court (1950s and 60s, civil rights the court (1950s and 60s, civil rights movement)movement)

– Public confidence in the SC has Public confidence in the SC has generally gone up and down w/support generally gone up and down w/support of the govt over the last 40 yearsof the govt over the last 40 years