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WHAT DO YOU ALREADY KNOW ABOUT THE JUDICIARY?
• Article?• Appointed?….term?• Types of federal courts? (structure)• Supreme Court
# of justicesCurrent Chief Justicelast Associate Justice confirmed1st African-American1st Woman
1st Latino (Latina)Current African-AmericanCurrent Women
Aim: How has the federal judiciary evolved?
DO NOW:
What do you already know about “judicial review”?
• What is Judicial Review? - the right of the federal courts to declare laws of Congress and acts of the executive branch void and unenforceable if they are judged to be in conflict with the Constitution
• What court case established the power of judicial review for the Supreme Court?
• What is the difference between a strict-constructionist approach and an activist approach to interpreting the Constitution?
• Who is likely to be the “liberal” or “conservative” today?
DEVELOPMENT OF THE COURTS• FOUNDERS probably expected judicial review
but not such a large role in policy making• FOUNDERS believed that the courts
“interpret the law”, not make policy• Courts - “least dangerous” branch –
according to Alexander Hamilton, in Federalist 78
• Judicial review was designed not to enlarge the power of the courts but to confine that of the legislature
• **things have changed since Hamilton’s time
FEDERAL COURTS (1787-1865) • Issues that dominated the Court• Nation building, legitimacy of the federal
government, and slavery• Court asserts supremacy of the federal
government over the states• National law – dominant law• Supreme Court had power to decide what the
Constitution meant• Landmark cases:
-Marbury v. Madison (1803)-McCulloch v. Maryland (1819)-Dred Scott decision (1857)
FEDERAL COURTS (1865-1937)• Issues that dominated the Courts• The Government and the Economy (proper
relationship)• Restrictions on powers of governments• When would economy be restricted (regulated) by
states and when by the nation?• Resisted regulatory measures?• Actually, tried to distinguish between reasonable and
unreasonable regulation• Evidence shows that major concern was the
protection of private property• IN ADDITION, the 14th and 15th Amendments
construed so narrowly gave limited benefits to blacks
FEDERAL COURTS (1938-present)• Big issues before the Court• PERSONAL LIBERTY AND SOCIAL EQUALILTY• Enlarged scope of personal freedom and
narrowed that of economic freedom• Decidedly PRO-REGULATION• Broad grants of discretionary authority to
bureaucracy• Create welfare state• FDR attempts Court packing in 1936• Chief Justice Earl Warren – 1953 – begins most
activist period in history of the Court (protect rights and liberties of citizens)
Aim: How does the federal judiciary influence U.S. government and politics?
DO NOW:1. Why did Alexander Hamilton
consider the federal judiciary to be the least dangerous branch?
2. What is the significance of Marbury v. Madison?
3. What types of issues have dominated the Court since 1938?
SELECTION OF JUDGES (Constitutional Courts)• Nominated by …• Confirmed by …• Term?• Considerations (party, ideology, qualifications,
competency, “diversity”) • “litmus test” – seek out judges with record similar
to ideology looking for• Senatorial courtesy• BOTTOM LINE: doesn’t always work out the way a
President would think (examples – Nixon and Warren Burger and Harry Blackmun; Reagan and Sandra Day O’Connor)
Current Supreme CourtAntonin Scalia, DC
1986– — N.J. 1936 — Roman Catholic
Anthony M. Kennedy, Calif.
1988– — Calif. 1936 — Roman Catholic
Clarence Thomas, DC
1991– — Ga. 1948 — Roman Catholic
Ruth Bader Ginsburg, DC
1993– — N.Y. 1933 — Jewish
Stephen G. Breyer, Mass.
1994– — Calif. 1938 — Jewish
John G. Roberts, DC
2005– — N.Y. 1955 — Roman Catholic
Samuel A. Alito, Jr., N.J.
2006– — N.J. 1950 — Roman Catholic
Sonia Sotomayor N.Y.
2009– — N.Y. 1954 — Roman Catholic
Elena Kagan N.Y.
2010– — N.Y. 1960 — Jewish
What kinds of matters do Federal Courts deal with?
• Criminal/civil cases• Federal questions• Diversity cases
What falls within the original jurisdiction of the Supreme Court?
A CONTROVERSY INVOLVING:• Two or more states• The U.S. and a state• Foreign ambassadors/diplomats• State and a citizen of a different
state
Aim: How does the federal judiciary influence U.S. government and politics?So,…1. Describe the structure of the federal
judiciary. (3 types of courts)2. How does one become a federal judge?3. What factors would a President
consider when making appointments to the federal bench?
4. What types of cases are within the “original jurisdiction” of the Supreme Court?
OTHER TERMS• Writ of Certiorari• Gideon v. Wainwright• In forma pauperis• Fee-shifting• Standing• Sovereign immunity• Class-action suits• brief
OTHER TERMS• Amicus curiae brief• Types of Opinions• Opinion of the Court• Majority opinion• Concurring opinion• Dissenting opinion• Stare decisis• remedy
Aim: How does the federal judiciary influence U.S. government and politics?
DO NOW:1. Why did Alexander Hamilton consider
the federal judiciary to be the least dangerous branch of government?
2. What is the difference between judicial activism and judicial restraint?
3. Which philosophy follows “strict constructionism”? Which follows a broad loose interpretation of the constitution?
4. Which is associated with “original intent”? Which is associated with “contemporary meaning”?
JUDICIAL ACTIVISM• Correct injustices• Institution of last resort
for those without vote or influence
• Congress and state legislatures tolerated segregation of schools
• Court declared segregation unconstitutional
• “Contemporary meaning”
JUDICIAL RESTRAINT• Judges – no specific
expertise (schools, prisons, environment)
• Judges not elected (don’t need an unelected legislature)
• Immune to popular control
• Mandates cost ($$$)• “original intent”
• NO INDEPENDENT ENFORCEMENT• CHECKS BY CONGRESS• Can gradually alter composition (appointments,
impeachment• Alter number of judges• Undo S.C. decision by amending Constitution• Congress can repass law that Court declared
unconstitutional• Change jurisdiction of lower courts and appellate
jurisdiction of Supreme Court
MORE CHECKS ON JUDICIAL POWER
CHECK BY PUBLIC OPINION• Court is aware, especially of elite opinion• Ignoring public opinion may destroy legitimacy of the Court
(Dred Scott decision)• Influences the remedies the Court offers (backing off on
busing)• Public opinion not only restrains but could energize the Court• Activist periods tend to coincide with periods of political
change• Change in Court today result of Presidential appointments
altering composition
JUDICIARY SUMMARY1. What is the significance of Marbury v.
Madison?2. Describe the structure of the federal
judiciary. (3 parts)3. What types of cases fall within the
original jurisdiction of the Supreme Court?
4. What is the difference between judicial restraint and judicial activism?
5. How can the Court be checked (Congress, President, Public opinion)?
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