2. The Judicial Branch
• Alexander Hamilton penned in the Federalist # 78 that
the judiciary would be the “least dangerous branch of
government. It lacked the teeth of both the other
branches of government; it had neither the power of the
sword nor the power of the purse.”
• Today the federal courts are very powerful.
• Nevertheless, the courts still have two basic limitations:
they have neither the power of the purse, nor the of the
sword.
• The court cannot fund programs or their implementation
nor can it force compliance with its rulings.

3. Function: Interpret the Laws of the Land
1. Judges have used this power
sparingly.
• 2. The power has only been used
about 140 times to strike down acts
of Congress.
• 3. Although more frequently (over
1200 times) to invalidate acts of
state legislatures

4. Growing Judicial Power: National Supremacy
Federal Judicial power established via:
Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional (Principle of Judicial Review)
McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law
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5. Judicial Review in a Picture

6. Ideology of the Courts

7. Influences on How the Justices Vote
A. Ideology of the court and the judge
B. Judicial Philosophy
1. Judicial Restraint - advocates minimalist roles for
judges, usually based off original intent (what the founders intended)
* Relies upon strict (or narrow) interpretation- rule on basis of Constitution as it
is written, resists interpretation or interpreting it to fit
2. Judicial Activism - feels that judges should use the law to promote justice, equality, and personal liberty especially if this is an area where Congress has been silent or slow to respond to changes in society.
–contemporary issues(Scalia)
– “Living Constitution” philosophy- evolution of Const. to contemporary world (Breyer)
-Sociological law: laws evolve to adapt with changes in society, laws are not fixed or absolute
-Broad interpretation- rule on the basis of what the Constitution implies ex. Implied separation of church and state from the First Amendment
C. Precedent
– Prior judicial decisions serve as a rule for settling subsequent cases of a similar nature unless the Court is ready to overturn previous rulings (as in the case of Plessey overturned by Brown v Board of Education)

8. Arguments for Judicial Activism
Sociological law supports the application and development of laws to reflect the changes in society and culture
Courts should correct injustices when other branches or state governments refuse to do so
Courts are the last resort for those without the power or influence to gain new laws

9. Arguments Against Judicial Activism and for Judicial Restraint
Judges lack expertise in designing and managing complex institutions
Initiatives require balancing policy priorities and allocating public revenues best left to Congress- Constitutionally it is the legislative branch that creates the laws not the courts- they should not “legislate from the bench”
Courts are not accountable because judges are not elected, plus a much smaller body
Times have moved constitutional interpretation away from the original intent of the Constitution

10. Bush’s Appointees
"I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law. Judges interpret the Constitution. ... And that's the kind of judge I'm going to put on there.“ Bush
William Rehnquist dies- replaced as Chief Justice by John Roberts (Conservative judge)
Sandra Day O’Connor retires-Harriet Miers withdrew, Samuel Alito confirmed (Conservative Judge)

11. Obama Appointees
"the criterion by which I'll be selecting my judges" was "who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old.“ Obama
Sonia Sotomayor replaced David Souter
Leading liberal John Paul Stevens retires replaced with Elena Kagen

12. Photo by Steve Petteway for the Supreme Court, now in public domain.
The United States Supreme Court, from left: Clarence Thomas, Sonia Sotomayor, Antonin Scalia, Stephen Breyer, John Roberts, Samuel Alito, Anthony Kennedy, Elena Kagan and Ruth Bader Ginsburg.
Photo by Steve Petteway for the Supreme Court, now in public domain.

13. How A Case Gets to the Supreme Court

14. Supreme Court Cases
Gotta Know: criteria for what usually does and does not get chosen as a case
“Rule of Four”

15. Process: How Supreme Court Decisions are Made
Case on the Docket (Approx. 95) via Writ of Certiorari
Briefs and Amicus Briefs submitted
Oral Arguments
Justices Conference, Cases discussed, votes taken, opinion assigned
Opinions drafted and circulated
Opinions announced

16. Types of Supreme Court Opinions
Kinds of Court Opinions-Court rules after arguments have been delivered
Per curiam: brief and unsigned
Opinion of the court: majority opinion (presently at least 5 of 9 justices)
Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning
Dissenting opinion: minority opinion
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17. Influences on How the Justices Vote
• Judicial Philosophy
– Judicial Restraint - advocates minimalist roles for
judges
– Judicial Activism - feels that judges should use the law
to promote justice, equality, and personal liberty.
– Strict interpretation- rule on basis of Constitution as it
is written, resists interpretation or interpreting it to fit
contemporary issues(Scalia)
– “Living Constitution” philosophy- evolution of Const.
to contemporary world (Breyer)
• Precedent
– Prior judicial decisions serve as a rule for settling
subsequent cases of a similar nature.

18. Arguments for Judicial Activism
Sociological law supports the application and development of laws to reflect the changes in society and culture
Courts should correct injustices when other branches or state governments refuse to do so
Courts are the last resort for those without the power or influence to gain new laws
Copyright © Houghton Mifflin Company. All rights reserved.

19. Arguments Against Judicial Activism
Judges lack expertise in designing and managing complex institutions
Initiatives require balancing policy priorities and allocating public revenues best left to Congress- Constitutionally it is the legislative branch that creates the laws
Courts are not accountable because judges are not elected, smaller body
Times have moved constitutional interpretation away from the original intent of the Constitution
Copyright © Houghton Mifflin Company. All rights reserved.

20. Cartoon- How FDR tried to assume more power
Why checks and balances were put into place in the Constitution
Copyright © Houghton Mifflin Company. All rights reserved.

21. Brief Court History 1865 to 1936
The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business (enterprise: one form of private property)
The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states
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22. Brief Court History 1936 to Present
The Court establishes tradition of deferring to the legislature in economic regulation cases
The Warren Court provided a liberal protection of rights and liberties during the Civil Rights Era, incorporated the Bill of Rights to apply to states (Arguably the most liberal court)
The Burger Court-even conservative courts can pass liberal legislation- Roe V. Wade
Refer to handout on history of the Courts

23. V. Federal Jurisdiction
Original Jurisdiction
First, in certain circumstances, the Supreme Court possesses original jurisdiction—that is, the power to review a case before any other court.
Article III, Section 2 of the Constitution gives the Court primary and exclusive authority over all disputes involving two or more states and all cases against ambassadors or other public ministers.

24. V. Federal Jurisdiction
Second, and more importantly, the US Supreme Court also holds appellate jurisdiction; that is, it wields the power to review lower court rulings and to reverse, affirm, or modify those decisions. The vast majority of cases on the Supreme Court's docket get there as appeals of decisions made in inferior courts.
These cases usually reach the Court by a losing party's request for a writ of certiorari, an order by the Supreme Court to the lower court to deliver all records of a particular case

25. V. Federal Jurisdiction
The importance of the Court's rulings cannot be underestimated; its opinions clarify the scope of federal laws, establish precedents for lower courts, and, often, by deciding questions of public policy, can shape the social, economic, and political values of the nation.
But which direction? As the founders intended? Or towards a new direction as sociological law implies? Towards God and his absolute laws or away from God and his absolute laws?

26. VI. Inferior Courts

27. Structure of American Legal System
The American legal system is a dual system:
Criminal law (violation of a specific law) vs. Civil law (dispute between two parties)
– state courts--actually 50 state court systems
– federal courts
• Both systems have three tiers:
– trial courts--litigation begins and courts hear the
facts of the case at hand (original jurisdiction)
– appellate courts--decide questions of law, not fact
(appellate jurisdiction)
– high or supreme courts (Original and appellate jurisdiction)

28. VI. Inferior Courts: Lower Courts- District (or Trial) Courts
The Constitution did vest Congress with the power to establish inferior courts. And so, through plenty of trial and error Congress settled on two separate categories of lower federal courts: the constitutional courts and the special courts.
Constitutional courts, also referred to as "regular courts" or "Article III courts," include District Courts, US Courts of Appeals, the US Court of Appeals for the Federal Circuit, and the US Court of International Trade.
Hear 80% of Federal Cases
Most of these courts are District Courts, of which there are currently 94: at least one in each of the fifty states and Washington, D.C. and one to serve each of the four US overseas territories (Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands).
District courts deal with the question: Was a law broken. They hear civil and criminal cases. They have original jurisdiction.
District Court rulings are usually final but can be appealed to one of 12 US Courts of Appeals.

29. VI. Inferior Courts: Lower Courts- Appellate Courts
Noticing that Supreme Court Justices were getting buried in casework, Congress created one Court of Appeals for each of the nation's twelve judicial circuits. The judges presiding over these courts have only appellate jurisdiction, which helps limit the number of cases on their dockets.
Hear on average 50,000 cases a year
US Court of Appeals rulings are usually final, but can, in rare instances, be reviewed by the Supreme Court

30. VI. Inferior Courts: Legislative Courts or Article I Courts
Along with these constitutional courts, or "regular courts", Congress has expanded the federal judiciary by creating several distinct tribunals with the power to try all those federal cases that fall outside the margins of "regular" lawsuits. These special courts include the US Court of Appeals for the Armed Forces, the Courts of the District of Columbia, the US Court of Appeals for Veterans' Claims, the US Court of Federal Claims, the US Tax Court, and the Territorial Courts.
Also referred to as "legislative courts" and "Article I courts," these courts deal specifically with cases involving federal institutions such as the Internal Revenue Service, the Department of Veterans' Affairs, and the Armed Forces.
Most controversial are the Military Commissions

31. The Judicial Branch Article III of the Constitution establishes:
–1. a Supreme Court in which the judicial power of the United
States is vested
– 2. life tenure or 'good behavior’ for judges
– 3. judges receive compensation that cannot be diminished during
their service
– 4. such inferior courts as Congress may choose to establish
– 5. the original jurisdiction of the Supreme Court
The intent of Article III was to remedy the failings of
the Articles of Confederation which left judicial matters
to the states.

32. IV. The Supreme Court Today
• According to a 1990 poll, only 23% of Americans knew
how many justices sit on the Supreme Court, and two thirds could not name a single member.
• In 1998, a poll of teenagers showed that only 2% could name the Chief Justice.
• Why care….? The Supreme Court, and the federal court system, have a number of powers and some significant limitations.

33. Structure of American Legal System

34. IV. Process: Selection of Judges
Gotta Know from the simulation: selection process and influences/constraints on process

35. Supreme Court Cases