Chapter 14

WSU Essay 9 Explain the role of the courts in the

policymaking process. How do they influence the policymaking process?

2

Exceeds expectations Student addresses 5-7 of these pointsMeet expectations student addresses 3-4 of these pointsDoes NOT meet expectation student addresses fewer than 3 of these points

Numerous examples are possible and desirable. Some of the key examples include: PRECEDENT!

• Decisions are often affected by the political positions of judges and Supreme Court Justices. In fact, over 92% of federal judges are not only of the nominating president’s political party, but frequently possess the same ideology as the president selecting them.

• Judicial biases can reflect themselves in vital political decisions as occurred in 2000 when the Democratic-dominated Florida Supreme Court made decisions favorable to Gore and the Republican-dominated U.S. Supreme Court decided for Bush.

• Human rights issues are also subject to judicial interpretation as occurred when Plessy v. Ferguson established “separate, but equal” as the standard, but Brown v. Board of Education relied on the 14th Amendment provision of equal protection to overturn the Plessy decision.

• In McCulloch v. Md. The Court firmly established that under Article VI a state could not tax an entity of the national government such as the Baltimore branch of the National Bank. Moreover, it gave Congress broad powers under the “necessary and proper clause” to exercise a wide extension of the powers delegated to it under Article I, Section 8 of the Constitution.

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• A Supreme Court decision apparently settles a constitutional question, but the decision is not necessarily permanent since a new statute or treaty can reverse it. In Missouri v. Holland, the Supreme Court found that a Congressional law not permitting the hunting of migratory birds was unconstitutional under Amendment X since hunting regulations were powers reserved to each state. Later, a U.S. treaty with Canada prohibiting hunting of migratory birds in both nation- states invalidated an American state’s ability to permit hunting of migratory birds.

• In conflicts between President and Congress, there is no consistent bias regarding domestic disputes between these two branches, but foreign policy is different. The Court almost always favors the presidency in foreign policy disputes . As Justice Sutherland stated in the Curtis-Wright case, “….the president is the sole organ for conducting foreign policy.”

• Judicial decisions can rely on precedent – “stare decisis” or “sociological jurisprudence” where more reliance is placed on the socio-politico-economic environment of the times.

• Courts do not actively seek to be involved in policy, they only become involved when the case comes before them.

 Exceeds expectations Student addresses 5-7 of these points

Meet expectations student addresses 3-4 of these points

Does NOT meet expectation student addresses fewer than 3 of these points

Chapter 14 Scenario 1 What should be the role of the

courts/judges? Should courts/judges make policy?

What examples can you think of where the courts make policy?

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Judicial Policymaking Judges confront conflicting

values in cases before them Some courts, (Supreme

Court), make fundamental policy decisions Decisions become precedent

for similar cases Court decisions can undo

work of elected majorities

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National Judicial Supremacy

Read Article III of Constitution (on pg. A-9 – A-10 in Appendix)

Supreme Court only court defined by Article III, Section 1 of the Constitution Congress given power to create national

court system Judiciary Act of 1789 created system of

federal courts separate from state courts In early years of Republic, not particularly powerful

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Chief Justice John Marshall

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http://www.youtube.com/watch?v=8DQ_K94vflM&feature=related

• Longest serving Chief Justice of the Supreme Ct.

• Judicial Review

• Strengthened the judicial branch

• Marbury v. Madison – one of most important cases in history

Judicial Review of the Other Branches

Constitution does not speak to question of “who should prevail?” in conflict between different branches of government

In Marbury v. Madison (1803), Supreme Court established power of judicial review First time a court invalidated an act of

Congress If an act of Congress violates Constitution, the

act is invalid.

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“You’re out!” Judicial review of national laws made the

Supreme Court the umpire of the national government

BUT, can it invalidate state laws in conflict with the Constitution?

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Judicial Review of State Government

YES, it can! In 1796, Supreme Court ruled that a

Virginia law canceling a debt to a British creditor violated U.S. Constitution's Supremacy Clause Virginia law therefore nullified

National supremacy requires Supreme Court to impose uniformity of national laws

Otherwise, meaning of laws would vary from state to state Supreme Court has invalidated state/local laws nearly 1200

times (abortion, death penalty, reapportionment, etc.)

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The Exercise of Judicial Review

The components of judicial review: Federal courts can declare national,

state, and local laws unconstitutional National laws or treaties supreme

when conflict with state or local laws Supreme Court final authority on

meaning of Constitution

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The Exercise of Judicial Review

Is judicial review undemocratic since federal judges appointed? Federalist No. 78 saw judicial review as

barrier to legislative oppression Constitutional amendments and

impeachment means to correct judicial errors

However, this power does mean judges can operate counter to majoritarian rule

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Alexander Hamilton

The Organization of Courts

U.S. has complex court system State courts (no two state’s courts

identical) National/federal courts coexist with states

Individuals fall under jurisdiction of both national and state courts 99% of cases filed in state courts Volume of state cases increases about 1%

a year, mostly contract disputes

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Figure 14.1 – pg. 454

The Federal and State Court Systems, 2008-2009

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• Federal courts have 3 tiers:

• District courts• Courts of appeals• Supreme Court

• Supreme Court created by Constitution

• All other federal courts created by Congress

• More than 100 state cases for every federal case

• State courts:• Minor trial courts for

less serious• Major trial courts for

more serious• Appellate courts• State supreme

courts• State courts created by

state constitutions

Some Court Fundamentals

The government prosecutes criminal cases, or violations of penal code or public order

Some crimes common to all states (Ex: Murder, rape, arson)

Others specific to individual state or a few states (Ex: marijuana) Maintaining public order mostly state/local

function Federal criminal cases related to activities

that fall under powers of national government (tax evasion, counterfeit money)

Civil cases involve disputed claims to something of value

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Some Court Fundamentals (Cont.)

Civil Cases: disputed claims to something of value Accidents, contracts, divorce Could be tangible (custody of children) or

abstract (compensation for pain/suffering)

Criminal = jail/fine Civil = $

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Criminal

Civil

Procedures and Policymaking

Most cases never go to trial Prosecutors may plea bargain

Admission of guilt for lesser punishment

Parties to a civil case may settle or one may abandon efforts

Cases that go to court end in an adjudication (court judgment enforced by govt)

Written reasons supporting a judicial decision called opinions

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http://www.youtube.com/watch?v=u4q_0OgBZ5g

Judicial Policymaking Judges make policy two ways:

Common, or judge-made law Rulings where no existing legislation exists Set precedents for future cases

Statutory Construction Judicial interpretations of legislative acts

Look for intent of the law based on reports, debates, hearings

With or without legislation, judges look to relevant opinions of higher courts to guide them

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Find an example

The Federal Court System

Organized in three tiers, as a pyramid Litigation starts with U.S. District

Courts Appeals then go to the U.S. Courts of

Appeals Final tier is Supreme Court

Courts of Appeals and Supreme Court generally review only cases already decided in lower courts

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The U.S. District Courts Each state has at least one

federal district court A total of 94 federal district courts Entry point for federal court system U.S. magistrate judges assist

district judges but lack independent judicial authority

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FAQS:http://www.ksd.uscourts.gov/faqs/

Sources of Litigation Authority of U.S. district court extends to:

Federal criminal cases Robbery of a nationally insured bank

Civil cases alleging a violation of national law Failure of municipality to implement pollution-control regulations

Civil cases brought against the U.S. government

Vehicle manufacturer sues

Civil cases between citizens of different states if disputed amount exceeds $75,000

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The U.S. Courts of Appeals

Twelve regional U.S. courts of appeals Thirteenth court, U.S. Court of Appeals for the

Federal Circuit, is not a regional court Specializes in patents, contracts, federal employment cases

Each appeals court hears cases from a circuit (geographical area)

All cases resolved in U.S. district court or decisions of federal administrative agencies can be appealed

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Appellate Court Proceedings

Appeals based on rulings made and procedures followed, not on guilt/innocence Example: evidence inadmissible because lack of

valid search warrant. Retrial without the evidence if court agrees with

the appeal Most cases resolved by panel of three

judges (no jurors, witnesses, nor cross examinations) Judges review written briefs (arguments) May or may not schedule oral arguments

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Precedents and Making Decisions

Written judgment of appellate courts serve as precedent for subsequent cases Judges make policy to extent they influence

other courts Stare decisis provides continuity and

predictability to the law (“Let the decision stand”)

Rulings designed to correct errors in district court proceedings and to interpret the law

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Uniformity of Law Appellate courts try to harmonize

decisions in region when district judges make conflicting rulings

However, courts of appeals not bound by decisions of other circuits

Supreme Court avenue for resolving conflicting decisions by different circuit courts of appeals

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The Supreme Court Supreme Court strives to achieve

a just balance among the values of freedom, order, and equality Flag burning as a form of political

protest Order vs. Freedom

School desegregation Equality vs. Freedom

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http://www.youtube.com/watch?v=ZS2Up5TeirM - Youtube – Road to the Supreme Court.

U.S. Supreme

Court Justices

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-Seated left to right: Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg-Standing left to right: Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan.

Conservatives: Thomas, Scalia, Roberts, Alito

Liberal: Ginsburg, Sotomayor, KaganBreyer

Moderate/Conservative but sometimes voting liberal: Kennedy

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Access to the Court Idea that anyone can take a case to the

Supreme Court theory, not fact Court’s cases come from two sources:

Original jurisdiction established by Article III, Section 2, of the Constitution

Cases begin and end at the Supreme Court

Appellate jurisdiction from U. S. courts of appeals or a state’s court of last resort

Cases from state courts must have exhausted appeals in their state system and deal with a federal question (Constitutional, national treaty, or federal law

questions)

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The Supreme Court’s Docket

Docket = Court’s agenda Supreme Court hears fewer than 100 cases

from the more than 8,000 submitted each year Requests made by petition for certiorari (seeking

review of lower court) – vast majority denied Rule of four unwritten requirement Business cases substantial portion of docket

Justices meet twice a week to vote on previously argued cases and consider new cases

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Figure 14.2 – pg. 462Access to and Decision Making in U.S. Supreme

Ct, 2008 Term

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This chart sketches the several stages leading to a decision from the Supreme Court. Only a fraction of the thousands of state/national appeals end up on the Supreme Court’s docket.

The Solicitor General Represents the national

government before the Supreme Court Third-ranking position in

Department of Justice Duties include

Determining whether to appeal a lower court’s decision

Reviewing briefs for appeals Deciding whether or not to file

amicus curiae briefs in any appellate court

“Friend of the Court” – see pg. 463 34

Solicitor General Donald Verrilli

Former S.G. Elena Kagan

Filed by individual/group that is not a party o it but has interest in it.

The Solicitor General

Position has two roles: Advocate for president’s policy

preferences Defend institutional interests of the

national government Traditionally recommends only cases

of general importance Informal title of “the tenth justice”

Influential in winning cases/setting agenda

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Decision Making

Once review granted, attorneys submit written briefs

Oral arguments held 2-3 hours a day, 5-6 days per month from October - April

Typically 30 minute argument from each side

After arguments heard, justices hold conferences to discuss cases and vote These meetings limited to the nine justices

36http://www.supremecourt.gov/oral_arguments/2012TermCourtCalendar.pdf

Supreme Court Decision Making (cont.)

Unwritten rule not to discuss cases before oral argument

Justices like crisp, concise presentations Some relentless questioners, some subdued Justices debate through the questions they

ask the attorney. They can’t address each other directly during oral

Conferencing? More like a statement of views

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Supreme Court Justices Conference Room

Judicial Restraint and Judicial Activism

Concept of judicial restraint means decisions based on legal doctrines, prior decisions, and deference to elected officials

Judicial activists maintain judges should use powers to promote judges’ preferred social and political goals

Terms not limited to a particular ideology39

Figure 14-3

Measuring Judicial Activism

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• Conservatives and liberals are both capable of exercising restraint or activism. • The chart shows votes to strike down congressional acts from 1994-2008.• Judicial invalidation of legislation may be appropriate. • From 1994-2008, conservative justices were more inclined to activism than the

moderate or liberal justices.

Judgment and Argument

Voting outcome is called the judgment Justices in the majority draft opinion

setting out reasons for decision If all agree, decision is unanimous Justices who agree but for different

reasons than listed in the majority opinion may file a concurring opinion

Justices who disagree may file a dissenting opinion

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The Opinion The chief justice or most senior justice in

the majority decides which justice will write majority opinion Must keep majority together – votes still

tentative Draft opinion circulated among all

justices for criticisms and suggestions Justices may choose to change initial vote

up until official announcement of decision Dissent happening more frequently in

recent years42

Strategies on the Court Cases that reach the Supreme Court

require difficult choices Ideologies reflect values; some justices

have tried to encourage appointment of like-minded colleagues Liberals value freedom over order and

equality over freedom Conservatives choose order over freedom

and freedom over equality Intellectual ability also affects debates

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The Chief Justice Forms docket Directs Court’s conferences May also serve these roles:

Generating solidarity within the group

Intellectual leadership Policy leadership

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Judicial Recruitment No formal requirements for

appointments to federal courts President nominates; Senate must

confirm Congress sets compensation:

(2010)

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Chief Justice of the Supreme Court $223,500

Associate Supreme Court justices $213,900

Courts of Appeals justices $184,500

District judges $174,000

Magistrate-judges $160,080

State Supreme Court judge (average) $150,633

State Judicial Selection Governor appoints judges in more than

half of the states Some must then face retention elections

Other states select by:Partisan electionNonpartisan electionLegislative election (rare)

In some states, must be confirmed in legislature

46http://www.dc18.org/info/general.shtml Kansas 18th Judicial District Court

The Appointment of Federal Judges

Appointments for life until resign, retire, die, impeached (only 14 ever impeached) Must have Senate confirmation

Presidents look for judges who favor their policies

Office of White House Counsel helps identify candidates Justice Department assists with screening

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The “Advice and Consent” of the Senate

For district and appeals court, senator from president’s party must approve Senatorial courtesy Or state’s House delegation, if no

senator from president’s party Recent presidents have tried

to appoint more women and minorities

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Steve Six

Jerry Moran

Pat Roberts

Senate Confirmation Senate Judiciary Committee conducts

hearings for each judicial nominee Confirmations have become ideological

battleground Hearings focus on judicial policy and

approach towards interpretations of the law Filibusters sometimes used to prevent

appointments

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Recent Presidents and the Federal Judiciary

While recent presidents have appointed more diverse judiciary, ideology rules

Carter’s appointments most liberal Reagan and George W. Bush-

appointed judges most conservative Presidents appoint judges of similar

political ideology

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Appointment to the Supreme Court

Attract extreme public scrutiny Since 1900, six appointments have

failed to be confirmed by Senate Most important factor: partisan politics

Most nominees have prior judicial experience Good predictor of future opinions

“Lame duck” presidents frequently unsuccessful

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Ideological Shifts President George W. Bush nominated

two Supreme Court justices, John Roberts and Samuel Alito

As a result, ideology of court more conservative

Justice Kennedy now “swing vote” President Obama nominated Sonia

Sotomayor and Elena Kagan

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Figure 14-4

A More Representative Court

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The Supreme Court has 3 women, 1 African American, and 1 Hispanic.Court Breakdown: 67% male, 11% black, 11% Hispanic, 78% WhiteThis puts it close to the national breakdown of 2008.Hispanics are expected to double over the next generation

The Consequences of Judicial Decisions

Judicial rulings small percentage of legal dispositions

Most cases end in plea bargain or no court judgment About 10 percent of civil and criminal

cases go to trial Many cases appealed to delay

prison

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Public Opinion and the Supreme Court

Even though not elected, ideologically balanced Court and public sentiment eventually align in most cases One exception: school prayer

Poll in 2009 showed six in 10 Americans more likely to approve than disapprove of job Supreme Court doing

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The Courts and Models of Democracy

Majoritarian model: courts should follow the letter of the law and defer changes to elected representatives

Pluralist model: courts are policymaking branch of government and have legitimate right to consciously advance group interests

56

WSU Essay 9 Explain the role of the courts in the

policymaking process. How do they influence the policymaking process?

57

Exceeds expectations Student addresses 5-7 of these pointsMeet expectations student addresses 3-4 of these pointsDoes NOT meet expectation student addresses fewer than 3 of these points

Numerous examples are possible and desirable. Some of the key examples include: PRECEDENT!

• Decisions are often affected by the political positions of judges and Supreme Court Justices. In fact, over 92% of federal judges are not only of the nominating president’s political party, but frequently possess the same ideology as the president selecting them.

• Judicial biases can reflect themselves in vital political decisions as occurred in 2000 when the Democratic-dominated Florida Supreme Court made decisions favorable to Gore and the Republican-dominated U.S. Supreme Court decided for Bush.

• Human rights issues are also subject to judicial interpretation as occurred when Plessy v. Ferguson established “separate, but equal” as the standard, but Brown v. Board of Education relied on the 14th Amendment provision of equal protection to overturn the Plessy decision.

• In McCulloch v. Md. The Court firmly established that under Article VI a state could not tax an entity of the national government such as the Baltimore branch of the National Bank. Moreover, it gave Congress broad powers under the “necessary and proper clause” to exercise a wide extension of the powers delegated to it under Article I, Section 8 of the Constitution.

58

59

• A Supreme Court decision apparently settles a constitutional question, but the decision is not necessarily permanent since a new statute or treaty can reverse it. In Missouri v. Holland, the Supreme Court found that a Congressional law not permitting the hunting of migratory birds was unconstitutional under Amendment X since hunting regulations were powers reserved to each state. Later, a U.S. treaty with Canada prohibiting hunting of migratory birds in both nation- states invalidated an American state’s ability to permit hunting of migratory birds.

• In conflicts between President and Congress, there is no consistent bias regarding domestic disputes between these two branches, but foreign policy is different. The Court almost always favors the presidency in foreign policy disputes . As Justice Sutherland stated in the Curtis-Wright case, “….the president is the sole organ for conducting foreign policy.”

• Judicial decisions can rely on precedent – “stare decisis” or “sociological jurisprudence” where more reliance is placed on the socio-politico-economic environment of the times.

• Courts do not actively seek to be involved in policy, they only become involved when the case comes before them.

 Exceeds expectations Student addresses 5-7 of these points

Meet expectations student addresses 3-4 of these points

Does NOT meet expectation student addresses fewer than 3 of these points