Section 6: The Power of the

Federal Courts

Section 6: The Power of the

Federal Courts

Power to make policy

• Make policy when they reinterpret the law of the Constitution is significant ways

• Extend the reach of existing laws to cover matters not previously thought to be covered by them

• Design remedies for problems that involve the judge’s acting in administrative and legislative ways

•More than 160 laws have been declared unconstitutional

•STARE DECISIS - “let the decision stand” 3 bullets

•allowing prior rulings to control the current case

•If the meaning of law continually were to change and judges minds would change then it would be chaotic

•Equal justice - equal treatment for similar cases

• The Court has overruled its previous decisions in over 260 cases since 1810

•Biggest Measure of Power - 3 bullets

•The kinds of remedies that courts impose (a judicial order enforcing a right or redressing a wrong

•Go beyond what is required to do justice to the individual party that actually appears in court

•Instead of fixing one poorly treated prisoner, they revamp the whole system

•Views of Judicial Activism

•In Support

•Courts must correct injustices when the other branches of federal government or states refuse to

•Not elected, immune to popular support

• Oppose judicial activism

• Judges have no special expertise in different areas, ex. school admin, environmental protection

• They are lawyers, experts in defining rights but not designing or managing complex situations

• Judges are not elected but they become unelected legislators

• 1 lawyer for every 325 Americans

• In Germany its 1:1,220

• In Japan 1: 8,333

• Adversary Culture

• Implicit antagonism between the people and the government

• Legislation and the Courts

• Laws -

• filled with ambiguities, we need people to determine what “due process” and “equal protection” mean

• Congress has increasingly passed laws with vague language, thereby adding to the courts power to interpret and draw its own conclusions and remedies

• Some laws induce litigation - every agency that regulates business will make decisions that cause the agency to be challenged in the courts

• A judge has no police force or army:

• Decisions can be resisted or ignored and if its not obvious they can avoid contempt of court

• When failure to comply is obvious then courts power is usually unchallenged

Section 7: Checks on Judicial Power

• Congress and the Courts

• Congress can gradually alter the composition of the judiciary by the kinds of appointments that the Senate is willing to confirm

• It can impeach judges

• 15 have been in hearings, 9 have resigned

• General policy disagreement is not generally regarded as adequate ground for striking something down

• Can alter the # of judges, gives president the opportunity to appoint judges to its liking

• Can change size of courts and districts

• Can amend decisions --> 13th, 14th, and 15th were made to amend Dred Scott, 16th made to amend income tax

• Can decide what the entire jurisdiction of the lower courts and appellate jurisdiction of the Supreme Court

• McCardle 1868 - Change of Jurisdiction

• Mississippi man was jailed by federal military authorities who occupied the South

• He requested a Writ of Habeas Corpus

• An order to produce an arrested person before the judge

• McCardle cont.

• The district court rejected his plea for Habeas

• He appealed it to the Supreme Court

• Congress was afraid the courts would find its reconstruction policy unconstitutional so it suspended appellate jurisdiction of this sort

• Public Opinions and the Courts

• Judges read the same newspapers as us and are aware of public opinion, especially the opinions of the elite

• Most activists periods in Supreme Court history have coincided with times when the political system was undergoing profound and lasting changes

• Public opinion can do a number of things

• Restrain judges

• Energize judges

• Reasons for the growth of Court Activism

• Sheer growth in the size and scope of the government as a whole

• Acceptance by a large # of judges of the activist persuasion

• Many feel that they exist to solve problems not just settle disputes

• ADD

• Limits on the Judicial Branch and judicial activism

• Stare Decisis

• Constitution

• Statutory Law

• Legal Thought

• Limits cont.

• Interest Groups

• Public Opinion

• Time and Staffing

• Actions of the other Branches

• Social Environment and contemporary events

•Sheer growth in the size and scope of the government

•acceptance by a large number of judges of the activist persuasion

•belief that they exist to solve problems, not just settle disputes

• Limits: Ignore

1. The judicial branch is designed to be more independent of public opinion than are the legislature or the executive. Yet, the United States Supreme Court rarely deviates too far long from prevalent public opinion.

(a) Describe two ways in which the United States Supreme Court is insulated from public opinion

(b) Explain how two factors work to keep the United States Supreme Court from deviating too far from public opinion