15The Federal Courts Chapter Overview

The observation that all political questions eventually move into the judicial system was made in the nineteenth century. It was a true statement at the time, and it is even more accurate today. The judicial system extends into the lives of almost all Americans. In this chapter, we explore how the judiciary operates in the United States. We begin by outlining the basic elements and structure of the courts in the United States. Then, we consider the politics of the judicial nomination and confirmation process. We examine the backgrounds and qualifications for judges, assessing how background and judicial philosophy affects judicial decision-making. Next we trace the evolution of judicial review and the dynamics of the court. We conclude by evaluating limits on the power of the courts. By the end of the chapter, students should be able to assess the role of the courts in American democracy.

Lecture Suggestions

Identify the basic elements of the American judicial system and the major participants in it.

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LECTURE 1: The Framers expected that the courts would be the least dangerous branch of government, but the court-centered pathway can be a dramatic avenue for public policy change.

Explain the structure of the judicial system, with trial and appellate courts at both the state and federal level.

Examine the factors that make federal judges powerful, such as life tenure and the power of judicial review, and discuss how judges are selected for state and federal service.

Consider the factors that impact the outcomes of cases: the judicial philosophy and ideology of individual judges, and the resources and strategies available to litigants and lawyers.

Finally, discuss the big question of how judicial decision making affects public policy, and the impact that process has on American democracy.

LECTURE 2: Differentiate between criminal and civil cases. Criminal cases involve violations of the criminal code, statutes

intended to protect public health, safety, and morality. In criminal cases, the state is always the plaintiff (or prosecutor) and the defendant is accused of committing a crime. The standard of evidence required for conviction is “beyond a reasonable doubt.” The rights of accused criminal cases are protected by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

Civil cases concern violations of the civil code, which encompasses the legal rights and obligations individuals have towards other individuals. Contract law, divorce law, and business law are all examples of civil law. In civil cases, the plaintiff need only show a “preponderance” of the evidence. Punishments generally involve monetary award rather than jail time or other criminal punishments.

LECTURE 3: Examine the historical evolution of liberal and conservative voting blocs on the U.S. Supreme Courts with your students.

The Warren Court: Between 1953 and 1969, the U.S. Supreme Court under the leadership of Chief Justice Earl Warren, the court generally maintained a liberal orientation. Progressive justices like Thurgood Marshall, William Brennan, Abe Fortas, and Hugo Black provided a strong liberal orientation, while John Marshall Harlan was the court’s lone conservative voice. The Warren Court is sometimes pointed to as the pinnacle of judicial power. During this period, the court moved to expand civil rights protections, often by a unanimous vote. Key decisions issued by the Warren Court included Brown v. Board of Education (1954), Mapp v. Ohio (1961), Baker v. Carr (1962), Gideon v. Wainwright (1963), New York Times Co. v. Sullivan (1964), Griswold v. Connecticut (1965), Miranda v. Arizona (1966), Loving v. Virginia (1967), and Brandenburg v. Ohio (1969).

The Burger Court: Between 1969 and 1986, under the leadership of Chief Justice Warren Burger, the role of the Court began to narrow. More conservative justices like Warren Burger and William Rehnquist sought to limit the influence of the Court’s more progressive wing, which included William Douglas, Thurgood Marshall, and William Brennan, all veterans of the Warren Court. Key decisions issued by the Burger Court included Lemon v. Kurtzman (1971), Roe v. Wade (1973), Miller v. California (1973), and United States v. Nixon (1974). Unlike the Warren Court, where decisions were often unanimous, under Burger, the Court’s decisions were increasingly split decisions.

The Rehnquist Court: From 1986, when Chief Justice William Rehnquist took over leadership of the Court, until his death in 2005, the Court increasingly took a more conservative perspective. During this period, the majority of the court were Republican appointees. Indeed, of the four justices comprising the Court’s “liberal” wing—John Paul Stevens, Stephen Breyer, David Souter, and Ruth Bader Ginsberg—three were Republican appointees. The Court’s conservative wing—William Rehnquist, Antonin Scalia, and Clarence Thomas—became more vocal, and the Court’s center shifted to the right. Decisions of the Rehnquist court often limited the authority of the Congress. Key decisions from the Rehnquist Court included Texas v. Johnson (1989), Lee v. Weisman (1992), Lawrence v. Texas (2003), and United States v. Lopez (1995). Perhaps the most well-known (and political) case from this era, though, was Bush v. Gore (2000).

The Roberts Court: Following Rehnquist’s death in 2005, John Roberts assumed the position of Chief Justice. The Roberts court has been characterized by a strong partisan divide. Many of the Roberts Court’s decisions have been narrow 5–4 outcomes. This is the result of a sharply divided Court where the liberal wing (Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and the conservative wing (John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas) both vie for the vote of the Court’s sole swing vote, Anthony Kennedy, a Reagan appointee. The most important decisions of the Roberts Court have been District of Columbia v. Heller (2007), Citizens United v. Federal Election Commission (2010), and National Federation of Independent Business v. Sebelius (2012).

Outline the structure of the federal court system and the major responsibilities of each component.

LECTURE 1: Explore the structure of the federal judiciary with your students.

The federal court system consists of three levels of courts: the Supreme Court, the Courts of Appeals, and the district courts, together with various special courts.

The U.S. Supreme Court: The Supreme Court is the “court of last resort” in the United

States, but it hears only a very small number of cases each year. Of the 8,000 petitioned filed with the U.S. Supreme Court every year, the Court generally hears just 100–125.

The vast majority (about 80 percent) of cases that reach the U.S. Supreme Court come from the federal court systems. A smaller proportion (about 18%) is appealed from the states.

Very few (about 2%) cases heard by Supreme Court are cases in which the Court is exercising original jurisdiction. These cases generally involve disputes between states (or states and residents of other states), disputes between a state and the federal government, and disputes involving foreign dignitaries.

Most Supreme Court cases are appellate decisions involving cases from state supreme courts or cases tried first in a U.S. district court.

The federal court system of the United States is divided into three levels: the courts of original jurisdiction (state courts, military courts, tax courts, district courts, claims courts, and international trade courts), U.S. Courts of Appeals (which hear appeals from all lower courts except state and military panels),

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and the U.S. Supreme Court, which can hear appeals from all sources. District Courts: District courts are the original jurisdiction

trial courts of the federal system. District courts hear cases in which the prosecutor is the government of the United States. Examples might include criminal matters like kidnapping and bank robbery, both of which are federal offenses, or some civil matters, like bankruptcy (which is handed by special district courts). Approximately 350,000 cases are filed in Federal District Courts every year. About one-quarter of these are criminal cases.

Courts of Appeal: Federal circuit courts are appellate courts that do not hold trials or accept new evidence but consider only the records of the trial courts and oral or written arguments (briefs) submitted by attorneys. Approximately 60,000 petitions of appeal are filed with the U.S. Courts of Appeal each year, but only about 8,000 of these reach the formal hearing stage.

For administrative convenience, the U.S. District Courts are organized into twelve circuits (regions), plus the Federal Circuit (Washington, D.C.). Within each region, circuit court judges form panels to hear appeals from district courts. U.S. Circuit Courts of Appeals are numbered. U.S. District Courts are named for geographical regions of the states (East, West, North, South, Middle), for example, the U.S. District Court for Northern California.

LECTURE 2: Contrast the appellate and original jurisdiction of the federal courts.

Original jurisdiction refers to the authority of a court to hear a case for the first time. Courts with original jurisdiction are often referred to as trial courts. In the United States, Federal District Courts are the primary

trial courts. They are divided into 94 judicial districts. Other trial courts include the U.S. Bankruptcy Courts and the

U.S. Courts of Federal Claims. Traditionally, federal crimes were offenses directed against

the U.S. government, its property, or its employees or were offenses involving the crossing of state lines. Over the years, however, Congress has greatly expanded the list of federal crimes so that federal and state criminal court jurisdictions often overlap.

Appellate jurisdiction refers to the power of a court to review decisions and change the outcomes of the decisions of lower courts. In the United States, decisions of the Federal District Courts

can be appealed to the U.S. Courts of Appeal. There are twelve regional Circuit Courts of Appeal. An additional Court of Appeals exists for the Federal Circuit.

The U.S. Supreme Court generally exercises appellate jurisdiction, reviewing the decisions of the lower courts for constitutionality. However, Article III, Section 2 of the U.S. Constitution grants the U.S. Supreme Court original jurisdiction in cases affecting ambassadors and other public ministers or consuls and in disputes between the states. The Supreme Court generally defers cases involving ambassadors to U.S. District Courts.

Appeals from state supreme courts go directly to the U.S. Supreme Court and not to a federal district or circuit court.

LECTURE 3: A question that frequently comes up in class is which cases go to federal courts and which cases go to state courts. Below is a description of the jurisdiction of federal courts. All other cases begin in state courts.

Original Jurisdiction: If a court has jurisdiction, it means it can hear a case. Original jurisdiction means a court can hear a case before any other court has heard the case. Students will be surprised to learn that the Supreme Court has original jurisdiction. This is specified in Article III, Section 2, clause 2. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.” Congress may not add to this original jurisdiction (Marbury v. Madison, 1803). It may, however, reassign these cases to lower courts. Congress has done this. Today, the only cases in which the U.S. Supreme Court has exclusive original jurisdiction are cases in which a state is suing another state. On average, the Court gets about one of these a year. When it does, it usually assigns the fact-finding of the case to a Special Master who is often a retired federal judge. The Special Master issues a ruling to the Court that it may follow or ignore.

Appellate Jurisdiction: Most federal cases begin and end at the federal district court that has original jurisdiction. Those losing a case in these courts can appeal them to the U.S. courts of appeal. There are two categories of cases that can be brought to federal courts: those dealing with a particular subject and those involving particular parties.

Subject Matter: Any case involving a federal question can be brought to a federal district court. A federal question would be one that requires (1) an interpretation of a federal law, (2) an interpretation of the U.S. Constitution, or (3) an interpretation of a treaty; to cases dealing with admiralty and maritime laws.

Particular Parties: Even if a case does not raise a federal question, it may still be brought to federal court if particular parties are involved in the case. If the following parties are involved in a case, it is federal court jurisdiction: United States is a party to the suit; A state is a party to the suit; An ambassador or other foreign representatives are involved; A citizen of one state suing a citizen of another state (These

are called “diversity of citizenship” cases. Federal law stipulates that such cases must also involve damages of $50,000 or more to be brought to federal courts.);

Citizens of the same state, if the dispute involves land grants claimed under two or more states; or

A state and a citizen of another state (as modified by the 11th Amendment).

LECTURE 4: While discussions of policymaking tend to focus on the legislative and executive branches, the courts also play a role. Over time, however, this role has changed. Explore the evolving role of the U.S. Supreme Court as a national policymaker in the United States.

In the early history of the country, the role of the Court was relatively limited. Chief Justice John Marshall presided over the court with a goal of establishing “maximum protection to property rights and maximum support for the idea of nationalism over states’ rights.”

A second phase can be identified starting with the end of the Civil War. The rapid increase in industrialization and the concentration of wealth and power in huge corporations raised important issues, many of which made their way to the courts. While the Court initially took the position of protecting the corporations from regulation, the Great Depression forced the

court to reverse itself and protect individuals and turned to regulating business.

Beginning in the 1950s, the Court gradually expanded protections for free expression and association as well as religion and civil rights. This phase lasted into the 1990s. It also marked a sharp increase in the use of judicial review to strike down a wide variety of laws in a number of landmark cases like Brown v. Board of Education (1954).

Following the death of Warren Burger, a new conservative majority under William Rehnquist took control of the Court. Rehnquist, and now John Roberts, presided over a 5 to 4 conservative majority that began deciding cases in favor of the states. It also seems to be against certain applications of affirmative action and leans more in favor of business/corporate interests.

Explain the process by which judges and justices are nominated and confirmed.

LECTURE 1: The appointment of federal judges has increasingly become an arena for conflict between presidents and their political opponents in the Senate. Outline the judicial recruitment process, noting in particular how it is politicized.

Presidents have a strong motivation to select judges who share their political philosophy, and they almost always appoint members of their own party to the federal courts.

More than 80 percent of federal judges have held some political office prior to their appointment to the court.

While political leaders and judges frequently reject the idea of a “litmus test,” a single issue (often abortion) on which a judicial nominee will be assessed, the appointment of judges has

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become more politicized in the past decade. Political philosophy now plays a major role in the selection of judges.

The Senate’s involvement in federal district judgeships traditionally centered on the practice of senatorial courtesy (a custom of the U.S. Senate with regard to presidential nominations to the judiciary to defer to the judgment of senators from the president’s party from the same state as the nominee).

Recent partisan battles over nominees have centered on the Senate’s filibuster rule and the sixty votes required for cloture to end a filibuster.

LECTURE 2: Despite often holding very different views of the law, the Constitution, and their interpretation, the justices of the U.S. Supreme Court tend to share a common background of education at the nation’s most prestigious law schools and prior judicial experience.

While there is no constitutional requirement that Supreme Court justices be attorneys, every person who has ever served on the High Court has been trained in law. Most have law degrees from Ivy League institutions.

Historically, most Supreme Court justices have been federal or state court judges. Eight of the nine justices sitting today have come from the U.S. Court of Appeals. Nearly every justice ever to serve on the Supreme Court justices has been a federal or state court judge.

Most justices have been in their fifties when appointed to the Court.

Historically, the Supreme Court has not represented the racial or gender diversity of the United States. There have been two African American justices (one sitting) and four female justices (three sitting).

LECTURE 3: The role of the Senate in the exercise of its constitutional “advice and consent” function in the confirmation process became the subject of debate during the Senate confirmation hearings of Robert Bork to be an Associate Justice of the U.S. Supreme Court in 1988. In fact, the treatment of Bork resulted in an addition to the national lexicon for the confirmation process—nominees could now be “borked.” Answer the following questions with your students: What are the different ways the Senate can exercise this role? What role is usually used? What role would seem to be the one intended by the Framers?

Senate Approaches to Advice and Consent: One way the Senate could approach its role of advice and consent is to see its job as one of uncovering any bad behavior on the part of the nominee that might disqualify him or her from serving on the Court. In other words, when guided by this role, the Senate is basically searching for any skeletons that might exist in the nominee’s closet. If none are uncovered, then the nominee should be confirmed. Perhaps the driving force behind this approach is the assumption that the president should be able to select whomever he or she wants as long as the person has not smoked marijuana, abused his or her spouse, had shock treatments, etc.

Another approach to the Senate’s role of advice and consent would include the above role, but go further in its scope. According to this approach, certainly the Senate might want to vote against a nominee, if serious enough “skeletons” were uncovered, but there would be additional reasons for rejecting a nominee as well. The Senate should also consider what kind of justice the nominee will be and what changes he or she might bring to the Court. Thus, even without disqualifying “skeletons,” the Senate might refuse to confirm if the nominee was deemed too extreme in his or her beliefs (one of the accusations made

against Bork) or not of the proper judicial temperament. In exercising this approach, the Senate is not operating under the assumption that the president should be the sole judge of the nominee’s ability to perform well as a justice. The Senate feels free to independently examine this question.

What Approach Is Usually Used? Until the nomination of Robert Bork, one would have to say the first role of merely examining a nominee for skeletons was the predominant role. It does, of course, depend on how you look at it, but Reagan’s and the Republican’s outrage at how the Senate Judiciary Committee treated Bork would indicate they did not think it was normal. Indeed, when Reagan nominated Bork, the historical record was that 80 percent of the time presidential nominees to the Court were confirmed. Of course, one could focus on the 20 percent and see this as a sign that the Senate had not, over the years, merely played dead with Court nominees.

What Would the Framers Say? The Framers did not say anything. They gave literally no guidelines as to what the Senate should do. In The Federalist Papers, No. 76, Publius writes that the procedure should be used to prevent the appointment of unfit individuals. Unfortunately, Publius does not explain what he meant by “unfit.”

There is some evidence from the Constitutional Convention that could help answer the question. The Virginia Plan stipulated that the Congress would select the members of the national judiciary. There were four attempts at the Convention to place the appointment process in the hands of the president alone. Madison, considered the father of the Constitution, wanted the Senate to act alone in selecting justices. The president was not added to the process until the latter part of the convention. In

fact, had the Convention adjourned just two weeks early, the Senate would have exclusively appointed justices.

Given this history of the appointment process in the Convention, it seems unlikely that the Framers would have approved of the Senate approaching its advice and consent function as one of basically letting the president get whomever he or she wants as long as the nominee has no skeletons in his or her closet.

One final note: Even Hamilton, an advocate of an energetic executive, defended the role of the Senate in presidential appointments as a way of preventing justices who would be “obsequious instruments of [the president’s] pleasure.”

LECTURE 4: In 1986, William Rehnquist became the Supreme Court’s Chief Justice, and with the appointments of Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas, the composition of the Court moved noticeably a couple of notches to the right. Take a couple of important issues—affirmative action, voting rights, abortion, the exclusionary rule—where prominent cases have arisen, and trace the differences and similarities of Rehnquist Court rulings and Burger Court rulings.

Affirmative Action Voting Rights Abortion Rights The Exclusionary Rule After exploring these issues, ask your students to consider the

following questions: Has there been a break with the past, as has been charged in the area of affirmative action, or is there simply further movement along the path charted by the Burger Court? Have the Clinton nominees (Ruth Bader Ginsburg and Stephen Breyer) changed the tone of the Court? Have the Bush nominees (John Roberts and Samuel Alito) changed the tone of

the Court? Will the Obama nominees (Sonia Sotomayor and Elena Kagan) change the tone of the Court? The new Supreme Court Chief Justice is John Roberts. How will the Roberts regime differ from that of Rehnquist?

Describe the backgrounds of judges and justices and assess the impact of background on their decisions.

LECTURE 1: Justices are swayed primarily by their own ideological views; but public opinion, the president’s position, and the arguments of interest groups all contribute to the outcome of cases. Outline the impact of these various factors on decision making in the Court.

Liberal and Conservative Voting Blocs: Although liberal and conservative voting blocs on the Court are visible over time, on any given case particular justices may deviate from their perceived ideological position.

Public Opinion: On the liberal-conservative dimension, it can be argued that Supreme Court decisions have generally followed shifts in American public opinion.

Presidential Influence: The Office of the U.S. Solicitor General is charged with the responsibility of presenting the government’s (the president’s) views in cases not only to which the U.S. government is a party, but also in cases in which the president and the Attorney General have a strong interest and present their arguments in amicus curiae briefs.

Interest-Group Influence: Interest groups have a significant influence in bringing issues before the Supreme Court through their sponsorship of cases. But several studies have found that interest-group briefs have had very little effect on the outcome of Supreme Court decisions.

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LECTURE 2: Senator Al Franken (D–MN) once quipped that when politicians talk about judicial activism, “their definition of an activist judge is one who votes differently than [the politician] would like.” While conservatives tend to argue in favor of judicial restraint and liberals tend to support greater judicial activism, this distinction is not absolute. Indeed, some issues (like abortion and gun control) can result in conservatives favoring a more interventionist court and liberals decrying judicial activism. Examine these examples in greater detail with your students.

Abortion: Critics of judicial activism tend to support the principle of stare decisis. But in the case of abortion, existing precedent supports access to abortion. Cases like Griswold v. Connecticut (1965) and Roe v. Wade (1973) established the precedent for abortion rights. But perhaps because those cases were originally decided in an activist manner, conservatives have sought to reverse or weaken these precedents, using both legislative and judicial action.

Gun Control: Critics of judicial activism also often complain that “activist courts” overreach when they overturn the actions of legislators. But conservatives, who generally favor fewer restrictions on gun ownership, have used the courts to overturn legislatively-imposed gun control laws. In District of Columbia v. Heller (2008), the Supreme Court ruled an effort to limit gun ownership in Washington, D.C. unconstitutional. In McDonald v. Chicago (2010), the Court ruled that Second Amendment protections limit the authority of states to impose particular restrictions on gun ownership, effectively incorporating the Second Amendment to the States.

LECTURE 3: Supreme Court Justice Felix Frankfurter once wrote: “The only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books, appeal lies

not to the courts but to the ballot and to the processes of democratic government.” His concerns are at the heart of competing judicial philosophies of judicial activism and judicial restraint. Contrast these philosophies for your students.

Judicial Restraint: The idea behind judicial self-restraint is that judges should

not read their own philosophies into the Constitution and should avoid direct confrontations with Congress, the president, and the states whenever possible.

Advocates of judicial restraint contend that judges should not equate the wisdom of a law with its constitutionality. The role of the Court is only to decide the constitutionality; wisdom should be left to the other branches.

The doctrine of original intent takes the values of the Founders as expressed in the text of the Constitution and attempts to apply these values to current conditions.

Judicial Activism: The idea behind judicial activism is that the Constitution is a

living document whose strength lies in its flexibility, and judges should shape constitutional meaning to fit the needs of contemporary society.

The principle of stare decisis, which means the issue has already been decided in earlier cases, is a fundamental notion in law; reliance on precedent gives stability to the law.

Even an activist Supreme Court adheres to some general rules of judicial self-restraint.

LECTURE 4: Examine the importance of stare decisis with your students. Stare decisis refers to the idea that the Courts should generally

defer to the precedent established by previous Court decisions. The phrase derives from the Latin maxim Stare decisis et non

quieta movere, or “stand by decisions and not disturb the undisturbed.”

In common law legal systems like that of the United States, stare decisis encourages courts to decide similar cases in similar ways. In this way, it is closely linked to the principle of equality before the law.

In the United States, the decisions of higher courts generally establish a binding precedent that lower courts are compelled to follow. However, stare decisis also holds that even the Supreme Court should generally follow its own precedents, an idea known as persuasive precedent.

Stare decisis also conveys a degree of certainty and consistency in the courts’ decision-making processes.

LECTURE 5: While we often hear complaints of “liberal, activist courts” in the popular media, the ideological balance of the court is much less clear. Explore the ideological balance of the U.S. Supreme Court with your students.

The appointment of John Roberts as Chief Justice, replacing William Rehnquist in 2005, added a strong and learned voice to the conservative bloc.

The appointment of Samuel Alito to the Court, replacing moderate Sandra Day O’Connor, gave the conservative bloc four reliable votes.

Sonia Sotomayor, a strong liberal, replaced another liberal, David Souter, in 2009.

Liberal Elena Kagan replaced liberal John Paul Stevens in 2010, leaving the four-member liberal bloc unchanged in numerical strength.

Anthony Kennedy remains the swing vote in the clash of liberal and conservative blocs on the High Court.

Outline the judicial process at the Supreme Court level and assess the major factors influencing decisions and their implementation.

LECTURE 1: The Supreme Court sets its own agenda: it decides what it wants to decide. Outline the process by which a case makes it to the Supreme Court.

Of the more than 8,000 requests for hearings that come to its docket each year, it only hears and issues opinions on about 100–125 cases.

Most cases reach the Supreme Court when a party in a case appeals to the Court to issue a writ of certiorari (literally to “make more certain”), a decision by the Court to require a lower federal or state court to turn over its records on a case.

The Rule of Four by which the Court operates means that at least four justices must agree to grant a writ of certiorari before the case will be heard by the U.S. Supreme Court. Generally, the court will only hear cases that have already been decided by the U.S. Courts of Appeal. They tend to select cases with national significance or cases in which divergent decisions have been rendered by different Courts of Appeal.

A refusal to rule also creates law by allowing the decision of the lower court to stand, making the U.S. Circuit Courts of Appeals powerful bodies.

LECTURE 2: Granting a writ of certiorari is only the first step of the Court’s legal process. Once the Court agrees to hear a case, the process begins. Explain the judicial process by which the Supreme Court operates once it agrees to issue a writ of certiorari.

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Once the justices decide to grant a petition for certiorari, the case is added to the Court’s docket. The Court notifies the petitioner (the individual who filed the request for a writ from the Court, and the petitioner has a set time to write a brief, maximum of 50 pages in length, in which they outline their case for the Court. Once received, the respondent has a set amount of time to write a response, also capped at 50 pages.

Once both petitioner and respondent have filed their briefs, each is permitted to file a follow-up brief to respond to the other’s case. Additionally, the court permits the Solicitor General, who represents the Government of the United States, to file a brief in cases in which the U.S. Government is neither petitioner nor respondent. The Court may also grant other individuals or groups that have an interest in the outcome of the case to file an amicus curiae, or “friend of the court” brief providing their own arguments.

After written briefs are filed, the Court schedules oral arguments. The Court typically hears cases from October to April. Oral arguments are open to the public, though the Court has historically prohibited cameras from televising their proceedings. Typically, the justices hear oral arguments for two cases per day. During oral arguments, lawyers for the petitioner and respondent each have 30 minutes to make their case. Most of this time, though, is spent responding to questions from the justices, which are developed in response to their reading of the written briefs. If the U.S. government is not a party to the case, the Solicitor General may still require time to address the court to present the Government’s interest in the case.

After oral arguments, the justices convene a Justices’ Conference to decide the case. By tradition, only justices are present during this discussion. Justices can speak and raise

questions or concerns, though they speak without interruption. The Chief Justice makes the first statement, followed by each justice in descending order of seniority. After every justice has had the opportunity to speak, they vote in order of descending seniority, again beginning with the Chief Justice.

A majority must decide which party wins or loses and whether a lower court’s decision is to be affirmed or reversed. In the rare event of a tie vote, the decision of the lower court stands.

LECTURE 3: Differentiate between the various types of opinions issued by the U.S. Supreme Court.

Once the U.S. Supreme Court reaches a decision, it must develop a written brief in which the decision and its logic are outlined. Who writes the decision can be an important political question. If the Chief Justice is part of the majority, they assign the justice to write the majority opinion. If not, the most senior justice in the majority decides.

The opinions of the Court are generally handed down in late June, but there are no specific rules governing how decisions are released. The Court will often issue noncontroversial and unanimous decisions earlier.

Several types of opinions exist. The majority opinion contains the official decision of the

Court. A concurring opinion agrees with the decision about which

party wins the case but sets forth a different reason for the decision, proposing, in effect, a different policy position.

Justices in the minority often agree to present a dissenting opinion that sets forth the views of justices who disagree with both the decision and the majority reasoning.

LECTURE 4: The Supreme Court works around three principles: seniority, secrecy and adherence to precedent. Although not found in the Constitution, these principles help to shape the work of the Court in important ways.

Seniority: Many of the internal operations of the Supreme Court are governed by seniority. Regardless of their term of office, though, the Chief Justice is always treated as the most senior justice. Examples of traditions based on seniority include: Justices sit in order of seniority when hearing cases. The

Chief Justice sits in the center, with the most senior justice on his immediate right, while the most junior justice sits on his far left.

During their deliberations, justices speak and vote in order of seniority.

By tradition, the most junior justice performs any menial tasks, such as answering the door of the conference room, serving coffee, and transmitting orders of the Court to the clerk.

Secrecy: The proceedings of the Judicial Conference are closed, and justices are expected to refrain from discussing those proceedings outside of conference. The Court has also resisted efforts to make it more transparent, rejecting proposals to televise proceedings. Only in 2010 did the Court begin the practice of posting its proceedings and transcripts of oral arguments on the Internet.

Adherence to Precedent: The Court generally operates according to the principle of stare decisis, which holds that its decisions should generally defer to existing precedent.

LECTURE 5: Courts are political institutions that resolve conflict and decide about public policy. But unlike Congress, the presidency, and the bureaucracy, the courts employ highly specialized rules in going about their work. Explain how these rules play out in judicial decision making.

Courts do not initiate policy but rather wait until a case or controversy is brought to them for resolution. This is perhaps the most important restriction on the power of the Courts in the United States. The U.S. judiciary is thus not proactive.

Bringing a case into court requires standing. Individuals, firms or interest groups must have standing; that is, they must be directly harmed by a law or action.

Class action suits are cases brought into court by individuals on behalf not only of themselves but also of all other persons “similarly situated.”

The most common arrangement for the payment of legal fees is the contingency fee, in which plaintiffs agree to pay expenses and share one-third or more of the money damages with their lawyers if the case is won.

Underlying judicial decision making is the assumption that the best way to decide an issue is to allow two disputing parties to present arguments on each side. Proceedings are thus adversarial.

Remedies and relief are the orders of a court following a decision that are designed to correct a wrong.

LECTURE 6: The Courts have struggled to deal with increasing caseloads over time. Indeed, caseloads in the federal courts place a heavy burden on prosecutors and judges. Increases in civil suits in the federal courts are the result of more plaintiffs insisting on taking their cases to the federal level both originally and on appeal. Increases in criminal cases are the result of Congress’s decision to make more crimes—especially drug-related crimes—

federal offenses and to pursue such criminals more vigorously. Examine some of the ways in which the Supreme Court has attempted to manage its growing caseload.

While the number of petitions filed with the Supreme Court has increased dramatically over time, the number of cases heard by the Court has remained relatively stable, generally fluctuating between 100 and 125 each year.

In an effort to control the agenda and make the caseload manageable, the Justices and their clerks look at several things about every case before agreeing to hear it. First, the case must be real and handle an adverse question.

This cannot be a hypothetical case. Second, the petitioner in the case must also have standing.

To have standing, people must have a direct interest in the case. The definition of standing can be changed to make it easier or harder for a case to get considered. Rehnquist and Roberts have kept standing restricted to avoid more “frivolous” lawsuits by “jailhouse lawyers.”

In order to hear a case, the court must “grant cert,” or approve the Writ of Certiorari. To do this, four justices have to be interested in hearing the same case.

Trace the Supreme Court’s use of judicial review in major policy battles in various eras of American history.

LECTURE 1: The Constitution grants “the judicial Power of the United States” to the Supreme Court and other “inferior Courts” that Congress may establish. The primary power of the court, however, is not found in the Constitution itself. Judicial review is the power to invalidate laws of

15.6

Congress, the executive, or of the states, that conflict with the U.S. Constitution.

Judicial Review of State Laws: The Constitution specifically obligates state judges to be “bound” by the Constitution and federal laws and to give these documents precedence over state constitutions and laws in rendering decisions. Historically, the most common form of judicial review exercised by the federal courts has been to strike down state laws that violate Constitutional protections. Overall, the Court has used its power of judicial review to strike down actions of the states more than 1,100 times.

Judicial Review of Laws of Congress: By contrast, the Court has been relatively restrained in its rejection of federal laws; over two centuries, the Court has struck down fewer than 150 of the more than 60,000 laws passed by Congress.

Judicial Review of Presidential Actions: The Court has overturned presidential policies both on the grounds that they conflicted with laws of Congress and on the grounds that they conflicted with the Constitution.

Interpreting Federal Laws: The courts also make policy in their interpretation of statutory laws—the laws of Congress.

LECTURE 2: Explore the origins of the doctrine of judicial review with your students.

Judicial review is perhaps the most important power exercised by the Courts. Yet the power is never explicitly mentioned in the U.S. Constitution. A strong case, however, can be made that the power is implied in Article III.

The idea of judicial review is rooted in the theories of the Baron de Montesquieu, whose works outlined a theory of the separation of powers found in the U.S. Constitution. Prior to

Montesquieu, most democratic theory held that the elected legislature should have disproportionate power to decide the affairs of government, a doctrine known as parliamentary supremacy.

In its decision in Marbury v. Madison (1803), the U.S. Supreme Court claimed the power of judicial review for itself. This power grants it the authority to review acts of the other branches and layers of government for their constitutionality.

LECTURE 3: In 1804, Thomas Jefferson wrote that allowing judges to decide which laws are constitutional, not just for themselves but for the legislative branch and the executive branch, “would make the judiciary a despotic branch.” A lecture discussing the antidemocratic nature of judicial review can be intriguing and informative.

First, review with the class that the U.S. Supreme Court, in the unanimous 1803 decision in Marbury v. Madison, held that “It is emphatically the province and the duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has been respected ever since as a permanent and indispensable part of our constitutional system.

Second, explain that the charge is often made that, even though we consider our nation to be a democratic republic, judicial review is undemocratic. The effect of judicial review in ruling legislation unconstitutional is to nullify the finished product of the lawmaking process. Critics of judicial review start from the assumption that exercises of power that do not find their justification in the ultimate consent of the governed are impossible to justify. So federal judges—who are not popularly

elected and have life tenure—are not accountable to anyone, making judicial review particularly antidemocratic.

Third, explain that some argue that judicial review is compatible with democracy because it cannot really block popular action. Eventually, the argument goes, the will of the people always prevails in spite of any resistance by the judiciary. In other words, all governments, even those with judicial review, rest ultimately on the consent of the governed.

Fourth, explain that judicial review is not antidemocratic in the sense that decisions by the Supreme Court can be overturned by constitutional amendment. That process has been used on four occasions to override Supreme Court decisions. The Eleventh Amendment, limiting the jurisdiction of the federal courts, was in response to a broad interpretation of such jurisdiction in Chisholm v. Georgia (1793); the Fourteenth Amendment nullified a decision on Scott v. Sanford (1857) that Americans of African descent, whether slave or free, could not be deemed citizens of the United States; the Sixteenth Amendment nullified a decision in Pollock v. Farmers’ Loan and Trust Co. (1895) holding federal income tax unconstitutional unless apportioned; and the Twenty-Sixth Amendment nullified the Supreme Court decision in Oregon v. Mitchell (1970) holding that Congress was without power to set the voting age in state elections.

Fifth, explain that judicial review is compatible with democracy because Supreme Court decisions often cannot be carried out without the cooperation of the other two branches of government. For instance, in United States v. Nixon, President Nixon complied with the Supreme Court’s order and turned over the Watergate tapes. President Nixon announced that he had instructed his counsel “to take whatever measures are necessary to comply with that decision in all respects.” The

action of the elected president turning over the tapes, although done reluctantly, added credibility to the concept of judicial review.

LECTURE 4: Students generally understand the idea of judicial review over congressional legislation and actions of states. However, they often have difficulty understanding the judicial review of executive actions. Present the cases of Korematsu v. United States and Hamdi v. Rumsfeld to illustrate this power.

Korematsu v. United States (1944). The Korematsu case concerned the constitutionality of Executive Order 9066, which ordered the internment of Japanese Americans during World War II. In its 6–3 decision, the U.S. Supreme Court ruled that the need to protect against espionage outweighed Fred Korematsu’s individual rights. The Korematsu case remains controversial even today. In 1983, a U.S. District Court overturned Korematsu’s conviction for evading internment. In 2011, the U.S. Justice Department issued an official notice conceding that it erred in the case, and the Solicitor General prosecuting the case was alleged to have withheld evidence from the Court. Nevertheless, Korematsu remains one of the few instances where the Court has ruled the government met its strict scrutiny standard in a situation of racial discrimination.

Hamdi v. Rumsfeld (2004). The Hamdi case originated in a petition for habeas corpus brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detailed indefinitely as an “illegal enemy combatant.” Because Hamdi was captured in Afghanistan, the Bush administration asserted that he could be detained as an enemy combatant without oversight of presidential action and without access to the courts. In their decision, the U.S. Supreme Court recognized the authority of

the government to detain enemy combatants, but ruled that detainees who are U.S. citizens must have access to an impartial judge to challenge their classification.

LECTURE 5: Explore the ways in which interest groups use the court system to affect political change.

Interest groups commonly test the court system by sending up “test cases.” The objective of the test case is to see how the court feels about certain subjects. Many times these test cases take the form of class action lawsuits, so that many cases are handled all at once. Interest groups also provide the court with their own information and opinions by filing an amicus curiae brief, before a case’s oral arguments are heard.

Leaders try to sway the court by having their opinions put on television, radio, newspaper, online, etc. If they can’t get the media to put it on for them, then some will buy the air time.

Although many think the justices are immune to public opinion, it is still a factor for them to consider, even if they can put as much or as little weight behind it as they want.

Assess the role of unelected courts and the scope of judicial power in American democracy.

LECTURE 1: Many people are concerned about the extent to which we now rely on a nonelected judiciary to decide key policy issues rather than depending on a democratically-elected president or Congress. But there are several formal and informal checks on the power of the Court.

Legitimacy As a Restraint on the Judiciary: The courts depend on their authority being seen as rightful, on people perceiving

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an obligation to abide by court decisions whether they agree with them or not.

Compliance with Court Policy: Federal and state court judges must apply Supreme Court policies when ruling on cases in their own courts.

Presidential Influence on Court Policy: Using the office’s powers of appointment, presidents have effectively modified the direction of Supreme Court policy and influenced lower federal courts as well.

Congressional Checks on the Judiciary: The Constitution gives Congress control over the structure and jurisdiction of federal district and appellate courts, but congressional use of this control has been restrained.

LECTURE 2: Students sometimes assume our political system is similar to other political systems around the world. They have a hard time thinking about how democratic political systems might be organized differently. Contrasting decision making under adversarial and inquisitorial legal systems provides an opportunity to highlight the way different democratic countries can organize their legal proceedings.

The U.S. judiciary is organized as an adversarial system. Under this system, competing parties (like prosecuting and defense attorneys) make their cases to a neutral third party (a jury) while a neutral arbiter (the judge) ensures the process unfolds fairly. The primary role of the judge is to maintain procedural fairness. The United States and other common law jurisdictions rely on adversarial systems.

In an inquisitorial system, which is used in most civil law jurisdictions, the judge is involved in the investigation of facts. He or she may ask questions of witnesses, and can even call witnesses themselves. The primary role of the judge in an

inquisitorial system is to ensure the truth is reached. The French legal system and other civil law jurisdictions are inquisitorial systems.

LECTURE 3: Examine the rise and fall of independent counsels with your students.

The United States Office of the Independent Counsel was established in 1978 in an effort to curb the growing powers of the presidency in the wake of the Watergate scandal. The office, established by the Ethics in Government Act of 1978, created a special prosecutor charged with investigating individuals holding high ranking positions in the federal government, with ethics violations.

Quickly, the office came under fire. The office had wide latitude in its operations. It could investigate allegations of any misconduct. It had a virtually unlimited budget and operated without deadlines. The prosecutor could only be dismissed by the Attorney General for “good cause” or by the court itself when the investigation was completed. Indeed, the growing power of the office led Justice Antonin Scalia to decry the office as a “fourth branch” of government.

The most famous Independent Counsel was Kenneth Starr, whose investigation of President Bill Clinton, originally tasked with investigating the death of Vincent Foster, eventually uncovered evidence of the President’s affair with Monica Lewinsky, providing the grounds for the Republican-controlled House of Representatives to impeach the President.

The legislation authorizing the United States Office of the Independent Counsel expired on June 30, 1999. The office has not functioned since then.

LECTURE 4: Some people object to what they perceive as “judicial tyranny,” and claim that judges are running this country. Examine these concerns with your students.

In the last three decades, the courts have expanded the constitutional guarantees of due process and equal protection. In some quarters, this has been greeted with complaints about judicial activism.

As the courts have recognized the rights of African Americans and other minorities; given procedural rights to those accused of crimes; required busing to achieve desegregation; announced that every person’s vote should be weighted the same; and expanded a host of other civil liberties, people have begun to object to judicial intrusions into their lives.

When judges take on the job of running a statewide prison system, supervising a mental health institution, or overseeing the busing of thousands of schoolchildren, members of the public ask, “Who elected them to do these things?” After all, no one elected the judges to these positions, and most have little in their background to suggest they have the competence to handle these jobs.

In part, the answer is that activist judges feel duty bound to give meaning to the Constitution, and may perceive a need to fill a vacuum created by the inability or unwillingness of other governmental entities to do their jobs. Those in favor of judicial activism argue that the problem with judicial restraint is that everyone is for judicial restraint until it is their ox that is being gored.

LECTURE 5: It is the Supreme Court and the federal judiciary, rather than the president or Congress, that have taken the lead in deciding many of the most heated issues of American politics. Courts are thus “political”

institutions. Like Congress, the president, and the bureaucracy, courts decide who gets what in American society. Examine with your students some of more political decisions of the Court.

Bush v. Gore (2000). Perhaps more than any other case, the decision of the Supreme Court in this case led to charges that the Court had become politicized. The Court’s narrow 5–4 decision pitted the Court’s conservative wing against its liberal wing, and effectively handed President George W. Bush the presidency.

Roe v. Wade (1973). The Court’s decision in Roe is perhaps the most commonly used example of judicial activism. In Roe, the Court ruled in a 7–2 decision that an implicit “right to privacy” in the Fourteenth Amendment extended to a woman’s right to have an abortion.

As you explore the topics and cases, ask your student to consider what the dangers of a politicized court might be. Do impressions matter? Even if the Court is making decisions based solely on legal precedent and constitutionality, should the impression of politicization matter?

Class Activities

CLASS ACTIVITY 1: Take sides in the Bush v. Gore presidential election debate. Was the case a political question or a legal, constitutional question? Did the Supreme Court, in effect, decide the presidency in 2000? What flaws, if any, exist in the majority opinion? What flaws, if any, are within the dissent’s argument? What likely would have happened had the Supreme Court refused to hear the case?

This activity uses an important historical case to explore the political questions doctrine.

CLASS ACTIVITY 2: How do the numerous television crime dramas like Law and Order and CSI affect our understanding of the criminal process in the United States?

Contrast the sensationalized view of criminal procedure in television with the real-life process used in the courts. What do the shows get correct? What do they get wrong?

What about the “CSI Effect”? The CSI Effect argues that juries demand more forensic evidence, raising the burden of proof, as a result of popular television series in which there is always a proverbial “smoking gun.”

This activity gets students to move away from the sensationalized understandings of criminal proceedings developed by Hollywood and to reflect on how those representations may affect the real-world application of justice in the United States.

CLASS ACTIVITY 3: Describe a case, either using a real case or a hypothetical one, perhaps associated with some local or national news headline. Split the class into two sections and assign one as an activist court, the other as a court practicing judicial restraint. Each group is to make a decision on the described case, using only those qualities associated with its assigned method of reaching decisions. How do the outcomes compare?

This activity requires students apply the broad judicial philosophies outlined in the text to analyze a specific case.

CLASS ACTIVITY 4: Hold a mock Senate confirmation hearing for a Supreme Court nominee, based on the Samuel Alito hearing. Assign students to act as the president’s chief of staff, the nominee, the committee members, and representatives of several interest groups that both favor and dislike the nominee.

As an alternative assignment, use a fictional nominee. The president has just nominated a new member to the Supreme Court. Have students stage a confirmation hearing.

In preparation, students should research previous hearings and the Senate Judiciary Committee.

Afterwards, ask them to discuss the implications of such a hearing on who wants to serve and on the integrity and independence of the judiciary.

This activity explores the politics of the judicial appointment and confirmation process.

CLASS ACTIVITY 5: Assign several topics (perhaps choosing issues that are on the current docket of the Supreme Court) to students in the class, and divide students into groups to write briefs as litigants, amici, and the solicitor general. You may even want to simulate the circuit court decision by creating panels of three to rule on the case before it is appealed to the Supreme Court. For the final stage, assign the roles of the justices to nine students, provide them with the briefs, and have them play out the rule of four. All students can then write a response discussing whether they agree with the Court’s decisions on cert, the reasons why the Court acted as it did, and what changes in the appealed cases might make them more or less likely to be brought up on certiorari.

This activity helps students understand the process whereby a case reaches the U.S. Supreme Court.

CLASS ACTIVITY 6: In her confirmation hearings before the Senate Judiciary Committee, Sonia Sotomayor was questioned about this statement she made at a Berkeley Law School lecture in 2001: “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that

life.” In addressing the Senate question, she testified that a judge must always follow the law regardless of personal background (in effect contradicting her earlier controversial statement).

Divide your class into small groups. Ask each group to think about the way in which identity and ideology affect the decisions made by justices on the Supreme Court.

Ask them how identity might influence decision-making on the court.

This discussion question encourages students to think about the role of diversity on the U.S. Supreme Court and interrogate the role of identity and ideology on the decisions of the Court.

CLASS ACTIVITY 7: Provide students with a list of several Supreme Court cases that include majority, concurring, and dissenting opinions. Choose “hot topic” cases such as those related to flag-burning, holding terror suspects incommunicado, or other civil liberties questions. Have each student find one case at http://www.findlaw.com/casecode/supreme.html, read the opinions, and present a brief summary to the class.

This activity highlights the differences between types of opinions issued by the Court and helps students understand why justices may issue concurring or dissenting opinions.

CLASS ACTIVITY 8: Ask your students to consider the power of the courts. The following guided discussion questions can be used to move from one level to the next.

In Federalist No. 78, Alexander Hamilton asserted that the judiciary was “the least dangerous branch.” Can the Court still be described this way?

How did the assertion of the power of judicial review expand the power of the Court? Does the power of judicial review affect Hamilton’s calculation?

What limits are there on the interpretation of the law and the Constitution by federal judges?

Do judges have too much latitude to interpret laws and thus influence public policy? For example, judges’ rulings have determined under what conditions speech can be limited, and how businesses can be regulated. Can you think of other avenues for making such decisions?

Imagine that the Supreme Court did not have the power of judicial review. What person, branch, or level of government do you think would determine what was constitutionally permissible?

This discussion item focuses on the powers of the courts and the role of judicial review in U.S. politics.

CLASS ACTIVITY 9: For an interesting class discussion, have students debate how democratic the Supreme Court is, compared to other institutions. The discussion should integrate the material learned in other chapters about the role of representation and elections in enforcing accountability and responsibility in policymaking.

How well does the Supreme Court conform to the criteria for democracy? What changes would need to be made to make the Court more democratic? Would these changes have any impact on the effectiveness of the Court?

How would such changes affect the independence of the judiciary? Would the court be less willing to protect unpopular positions, for example?

Given all of this, do you believe the Supreme Court should be elected? Why?

This discussion item explores the nature and importance of an independent judiciary and the role of the court in protecting unpopular positions.

CLASS ACTIVITY 10: Screen the “Thinking Like a Political Scientist” video for your class. In it, East Central University political scientist Christine Pappas analyzes how judges make decisions and what factors, both personal and public, influence the courts.

After screening the video, ask your students to review a recent decision issued by the U.S. Supreme Court. The FindLaw site (http://www.findlaw.com/casecode/supreme.html) provides a comprehensive list to browse or search by keyword.

Once you have identified a case, ask your students to review the decision. Specifically, students should be able to identify: The central question at hand. The decision of the court and which justices constituted the

majority and minority in that decision. Then ask your students to identify the reasons for the decisions,

focusing in particular on the approaches outlined in the video (e.g., judicial philosophies, public opinion, etc.).

This video-based discussion activity allows students to reflect on the criteria by which justices arrive at decisions and the ways in which popular opinion affects judicial outcomes.

Research Activities

RESEARCH ACTIVITY 1: In class, ask your students to identify the most influential members of the U.S. Supreme Court. Potential nominees might include John Marshall, Felix Frankfurter, Hugo Black, William Douglas, Thurgood Marshall, Warren Burger, Earl Warren, William Rehnquist, or

others. Ask students to identify a justice of interest to them and read their biography or autobiography. Sample works are included in the bibliography below.

Then, have each student prepare a short paper in which they explain how the experiences, identity, and political philosophy of their justice affected (or is reflected in) their decisions.

Consider having students present their findings in class, then vote on the most important personalities of the U.S. Supreme Court.

This activity gives students an opportunity to learn more about the influential figures that shaped the U.S. judiciary and to explore the competing judicial philosophies that shape the Court.

RESEARCH ACTIVITY 2: It is the Senate’s responsibility to confirm presidential nominees to the courts. Have the students write an essay where they discuss the limits, if any, the opposition party should have in preventing nominees they don’t like from taking the bench. Should they go so far as to filibuster nominees that would be confirmed if a vote were allowed by the entire body?

This topic focuses on the process and politics that surround the judicial appointment process.

RESEARCH ACTIVITY 3: The Supreme Court has always insisted on maintaining complete secrecy over deliberations among the justices in conference. Therefore, there was great controversy when the Library of Congress released the papers of the late Justice Thurgood Marshall shortly after his death in 1993. Marshall’s papers provide a rare look at behind-the-scenes maneuvering by the Court.

Divide your class into several groups and assign each group to review newspaper accounts of Marshall’s files (May 1993). One

or two groups should focus on key cases (particularly in the area of civil liberties), while another group should focus on the controversy over the decision to release the papers to the press.

You can either have the groups submit their findings in writing or as an oral presentation in class.

This activity gives students an opportunity to explore the internal deliberations that guided the Supreme Court’s decisions during one of the most important periods in the history of the Court.

RESEARCH ACTIVITY 4: Have students choose two well-known Supreme Court cases. They should use the Web to do some research to determine how much interest group activity and how many attempts at public persuasion there were on the Court during that case. Using those examples and the text, have students write a paper (or prepare a short talk) about the impact of public opinion and lobbying on the Supreme Court.

This assignment highlights the impact of interest groups and public pressure on the decision-making process of the Court.

RESEARCH ACTIVITY 5: Having your students do a brief on a Supreme Court case can be used in several ways. You can either assign the cases directly or pass around a sheet letting the students sign up for cases that interest them with no one getting the same case. Second, you could have students actually present their briefs before the class in a more formal setting. This could help students feel more comfortable with giving speeches, and could also provide an additional grade, which, for most students, would probably help their scores. Below are some instructions for helping students brief a case.

How do you find a Supreme Court case? First, find a case citation in your textbook. Second, go to the legal reference area of your library.

The official government document containing Supreme Court opinions is “United States Reports.” A typical case citation, such as for Roe v. Wade, will look like this: Roe v. Wade, 410 U.S. 113 (1973). This means that the case of Roe v. Wade can be found in volume 410 of the United States Reports, on page 113. The case was decided in 1973. Another citation often used will look like this: Roe v. Wade, 93 S.Ct. 705 (1973). This means this case can be found in volume 93 of the Supreme Court Reporter, on page 705. This is not a government document, for it is published by West Publishing, but it contains the same text of the opinion.

Before a student selects a case (if you do not assign it to them) you should tell them to go to the library and look up three cases that interest them. They should be advised to examine them for content, length, etc., and then rank them in order of their preference. Then they can return to class to sign up for a case with alternatives, if someone else has already signed up for the one they wanted.

What should go into their briefs? One word of warning you should probably give students as

they begin to write their briefs is to not quote extensively from the case. Encourage them to write their briefs in their own words.

There are five basic parts to a brief:o The facts of the case: The student should give the

“who, what, when, how, and why” of the case. This will probably be one of the longer sections of their brief but it depends on each case.

o The law involved in the case: This is usually a brief section. It should include references in the case to the U.S. Constitution, federal law, state law, executive

orders, treaties, or other legal references that enter into the decision of the case. References should be specific. If a reference is made to the Constitution, the Article, Section, and Clause of the passage referred to should be given.

o The legal question of the case: This is usually just one sentence, but it can be a difficult part of the brief, because it takes some skill to summarize an entire case covering the significant facts and law in one sentence.

o The ruling of the Court and the Court’s reasoning: This will probably constitute the bulk of the brief. Again, encourage students not to quote the justices but rather to use their own words. You will also have to decide if you want students to include concurring and dissenting opinions as part of their briefs.

o An evaluation of the case: This should not merely be something like, “I really enjoyed reading this case,” or, “I learned a lot from reading this case.” They should consult the text so as to be able to provide analysis of the case. If necessary, they could consult other sources such as constitutional law texts or The New York Times in order to provide an informed evaluation.

This activity gives students good exposure to the documents produced by the courts, helping them learn to navigate the Supreme Court’s briefs.

RESEARCH ACTIVITY 6: Have your students visit the “Anatomy of a Murder: A Trip Through Our Nation’s Legal Justice System” website at http://library.thinkquest.org/2760/. Working through the material presented there, ask them to identify the basic steps in this case. Then ask them to indicate whether or not they agree with the outcome of the case.

This activity explores criminal procedure and the role of the courts in the administration of justice.

RESEARCH ACTIVITY 7: Investigate the composition of the current Supreme Court in terms of the different types of individuals that are found there. Find out who appointed them, their political party affiliation, their age, their ethnicity, their religion, their home state, their previous occupation, and other such defining characteristics. Sort the members into conservatives, liberals, and moderates. Then, in a short written paper, ask your students to consider the following questions:

What makes an ideal justice? Ask the students to devise a list of criteria for the make-up of an ideal Supreme Court justice.

What types of diversity beyond race and gender should the Court reflect?

What fields outside of law would provide a satisfactory background for a justice?

Then ask the students to evaluate the impact of increased diversity on court rulings.

This assignment encourages students to think about the characteristics shared by Supreme Court justices and to reflect on the role of identity, ideology, background, and demographics on the decision-making process of the Court.

RESEARCH ACTIVITY 8: Have your students identify a recent decision by the U.S. Supreme Court using one of the online databases like FindLaw (http://www.findlaw.com/) or Oyez-Oyez-Oyez (http://www.oyez.com/). Ask them to review the case and identify the following information:

What was the primary issue at stake?

How did the Court decide? Who wrote the majority and dissenting opinions? Which justices were on each side of the decision?

What was the logic of their decision? On what argument was the decision based?

This activity gets students to engage with the decisions of the court and to explore the impact of judicial philosophy on the decisions of the court.

RESEARCH ACTIVITY 9: Simulation: “You Are a Supreme Court Clerk.” Through the power of judicial review, the Supreme Court has the last word on issues of constitutional interpretation. Supreme Court justices can strike down federal legislation. In the “You Are a Supreme Court Clerk” simulation in MyPoliSciLab, you will explore this process as you serve as a Supreme Court clerk.

Have your students complete the simulation and explore the process by which the Supreme Court decides to hear specific cases.

Then have them complete the associated quiz in MyPoliSciLab. As an alternative short writing assessment assignment, ask your

students to complete a short response paper in which they discuss the themes raised in the simulation as they relate to the material covered in lecture and the chapter.

This active learning exercise encourages students to reflect on the decision-making process Justices use to decide whether or not to hear a case.

RESEARCH ACTIVITY 10: Who are the activist judges? Use the infographic from the textbook as the basis for a discussion around the following questions:

Concerns over judicial activism have grown more pronounced in recent years. How is judicial activism defined in the infographic? How does that definition match your understanding of judicial activism from the popular political discourse?

How has judicial activism changed over time? Has the court become more activist? Less?

Which justices on the Roberts Court have been the greatest activists?

How does judicial activism affect public confidence in the courts? This question can be answered in the abstract, or you could ask students to collect judicial approval figures and discuss those data as well.

This discussion item helps to develop data literacy and encourages students to think about how judicial philosophies are operationalized on the Court.

Participation Activities

PARTICIPATION ACTIVITY 1: If your classes are not too large, you may want to make arrangements for your class to visit a trial court while it is in session (either trial or voir dire proceedings). Contact the court administrator to arrange for visitation, and follow up with class discussion. You may want to divide your class into jury panels the day following the court visitation.

Have each panel select a foreperson, and give them some time to meet in small groups to deliberate the case. As a foundation for general class discussion, the foreperson should announce the decision and briefly state the reasoning for each group.

If it is not practical to arrange for court visitation, you may be able to suggest watching some televised proceedings or ask your students to visit and review a session on their own.

As an alternative assignment, have some students visit a federal district court and others visit either a state or local court. Have each group report back to class, and discuss any differences in procedure in the different courts. How, for example, did the procedures compare with court scenes portrayed on television or in motion pictures?

This activity gives students a chance to see the U.S. judicial system in action and to reflect on the processes by which it operates.

PARTICIPATION ACTIVITY 2: Have your students prepare a letter to the editor dealing with a recent judicial decision of interest to them. Supreme Court decisions tend to be particularly popular, but the decisions of State Supreme Courts or Federal Courts of Appeals are also often relevant. Be sure to provide guidance on how to write a letter to the editor. While individual newspapers may have their own requirements, in general letters should be short (generally no longer than 200–250 words) with well-focused paragraphs of generally no more than 2–3 sentences each. Letters should also focus on a single point, should be timely, should provide facts and figures to support your point, and should avoid too much emotion. Consider encouraging your students to submit their letters to a local or national newspaper for possible publication.

This activity requires students to examine the real-world decisions of the courts and helps them developed focused writing skills.

PARTICIPATION ACTIVITY 3: Given the high proportion of students interested in attending law schools in many political science courses, an

interesting activity can be developed around asking students to research future job opportunities related to the practice of the law.

Start by having students identify the educational and career backgrounds of ten judges. These could be judges in the federal, state, or local court systems. For students not interested in law school, the U.S. Supreme Court makes a particularly interesting case study. For students who might like to be lawyers or judges one day, state or local courts are probably a more appropriate choice.

Have students write a short analysis of their findings. Where did the judges/justices attend school? What did they do before they became judges/justices? Can you identify any patterns in your findings?

What do your findings suggest about the study of law? For students who are considering law school, how might these findings affect your plans?

This activity highlights the requirements to become a judge or justice and illustrates the common background shared by many judges and justices.

Suggested Readings

READING 1: Cass Sunstein (2005). Radicals in Robes: Why Extreme Right Wing Courts Are Wrong for America. Sunstein attempts to dismantle the popular rhetoric of out-of-control progressive judicial activists, describing how conservatives and liberals both use judicial activism to advance their own perspectives.

READING 2: Cass Sunstein. A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What It Meant Before. New Haven:

Princeton University Press. Sunstein develops the argument that original intent is a misguided political philosophy. READING 3: The increased attention paid to judicial activism has resulted in several texts on the topic. See, for example:

Nathan Tucker (2010). We The People: The Only Cure to Judicial Activism. Fraser, MI: In Arena Publishing.

Stephen P. Powers and Stanley Rothman (2002). The Least Dangerous Branch? Consequences of Judicial Activism. New York: Praeger.

READING 4: Many engaging biographies and autobiographies of the personalities that have defined the high court have been written. These include:

John Paul Stevens (2011). Five Chiefs: A Supreme Court Memoir. New York: Little, Brown and Company.

Stephen Breyer (2010). Making Democracy Work: A Judge’s View. New York: Knopf.

Linda Greenhouse (2006). Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. New York: Times Books.

Sandra Day O’Connor (2004). The Majesty of the Law: Reflections of a Supreme Court Justice. New York: Random House.

Melvin Urofsky (2009). Louis D. Brandeis: A Life. New York: Pantheon Books.

Jim Newton (2007). Justice for All: Earl Warren and the Nation He Made. New York: Riverhead Books.

Roger K. Newman (1997). Hugo Black: A Biography. New York: Fordham University Press.

Seth Stern (2010). Justice Brennan: Liberal Champion. New York: Houghton Mifflin.

Clarence Thomas (2008). My Grandfather’s Son: A Memoir. New York: Harper.

Jean Edward Smith (1996). John Marshall: Definer of a Nation. New York: Holt.

READING 5: Jeffrey Toobin (2007). The Nine: Inside the Secret World of the Supreme Court. New York: Doubleday. Jeffrey Toobin, a noted legal scholar and analyst, argues that the structure of the Court tends to produce moderate outcomes. The powerful actors, he contends, are swing justices like Sandra Day O’Connor and Anthony Kennedy, who are able to use their position to affect key decisions.

READING 6: Many other texts also explore the inner workings of the Supreme Court. Examples include:

Robert Woodward and Scott Armstrong (2005). The Brethren: Inside the Supreme Court. New York: Simon and Schuster.

Jeffrey Rosen (2007). The Supreme Court: The Personalities and Rivalries that Defined America. New York: Times Books.

Todd C. Peppers and Artemus Ward (2012). In Chambers: Stories of Supreme Court Law Clerks and Their Justices. Charlottesville: University of Virginia Press.

William Rehnquist (2002). The Supreme Court. New York: Vintage.

READING 7: Several interesting books deal with the limits on the decision-making of the court. See, for example:

Tom S. Clark (2011). The Limits of Judicial Independence. New York: Cambridge University Press.

Michael A. Bailey and Forrest Maltzman (2011). The Constrained Court: Law, Politics, and the Decisions Justices Make. Princeton, NJ: Princeton University Press.

READING 8: Sarah A. Binder and Forrest Maltzman (2009). Advice and Dissent: The Struggle to Shape the Federal Judiciary. Washington, DC: Brookings Institution. An outstanding analysis of the politics of judicial nomination and confirmation.

READING 9: Frederic Block (2012). Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge. New York: Thomson Reuters Westlaw. An engaging and humorous look at the work of a federal trial judge written by Frederic Block, who was appointed to the bench in 1994 by President Bill Clinton.

READING 10: Stephen A. Jessee and Alexander M. Tahk (2011). “What Can We Learn About the Ideology of the Newest Supreme Court Justices?” PS: Political Science & Politics. 44 (3) (July): 524–529. Jesse and Tahk outline a model for understanding the ideological perspectives of Supreme Court justices using Chief Justice John Roberts, and Justices Samuel Alito and Sonia Sotomayor as case studies.

READING 11: The American Bar Association (http://www.abanet.org/) is the professional association for lawyers in the United States.

READING 12: The site of the Supreme Court History Society (http://www.supremecourthistory.org/) covers basic history of the Court and has a gift catalog. The official website of the U.S. Supreme Court is http://www.supremecourtus.gov/.

READING 13: Court decisions can be found at several online locations. FLITE: Federal Legal Information through Electronics

(www.fedworld.gov/supcourt/index.htm) offers a searchable database of Supreme Court decisions from 1937–1975.

Legal Information Institute, Cornell University Law School (http://www.law.cornell.edu/) is a gateway to a world of information that offers links to associated law and court sites on the Web. Among its sections you will find the following: the Supreme Court calendar; biographies and opinions of the justices; directories of law firms, law schools, and legal associations; constitutions and codes, including U.S. statutes, regulations, and judicial rules of procedure; and Court opinions, including state supreme courts.

FindLaw (http://www.findlaw.com/) is a searchable database of Supreme Court decisions plus legal subjects, state courts, law schools, bar associations, and international law.

Oyez-Oyez-Oyez (http://www.oyez.com/) is a comprehensive database of major constitutional cases, including multimedia aspects such as audio.

READING 14: Federal Courts Home Page (http://www.uscourts.gov) contains information and statistics about the activities of the U.S. District Courts, Circuit Courts of Appeal, and the Supreme Court.

READING 15: The Pelican Brief (1993). Drama depicting efforts to assassinate members of the U.S. Supreme Court, based on the novel by John Grisham.

READING 16: The TV movie Separate but Equal is an excellent portrayal of how Chief Justice Warren secured unanimity in Brown v. Board of Education.

READING 17: The Supreme Court (2007). PBS Video. A four-part series that explores the role of the Court throughout American history.

READING 18: The First Monday in October (1981). Comedy about a conservative woman appointed to the U.S. Supreme Court and the issues the Court faces in a variety of civil liberties cases.

READING 19: Frontline: Real Justice (2004). PBS Video. A special two-hour report goes inside the real-life workings of America’s criminal justice system.

READING 20: Recount. The HBO film deals with the politics of the Supreme Court’s decision in Bush v. Gore (2000). Additional materials on the film can be found at http://www.hbo.com/movies/recount/index.html.