Chapter 16 The Judiciary

Learning Objectives 1.Where in the Constitution does it say that the Supreme Court has the power of judicial review? 2.What is meant by an “Article III” federal judge? 3.What is the difference between original and appellate jurisdiction? 4.Why should federal judges serve for life? 5.Why should federal courts be able to declare laws unconstitutional? 6.Should federal judges only interpret existing laws or should they be able to create new laws? Copyright © 2015 Cengage Learning. All rights reserved. 2

Introduction WHO GOVERNS? 1.Why should federal judges serve for life? TO WHAT ENDS? 1.Why should federal courts be able to declare laws unconstitutional? 2.Should federal judges only interpret existing laws or should they be able to create new laws? Copyright © 2015 Cengage Learning. All rights reserved. 3

Introduction  Decline in federal appeals court nominee confirmations  Lengthier confirmation hearings  Federal judges making more policy decisions → nomination process becomes longer, more ideological and more uncertain Copyright © 2015 Cengage Learning. All rights reserved. 4

Judicial Nominations and Confirmations Copyright © 2015 Cengage Learning. All rights reserved. 5 U.S. Court of Appeals Federal Court Nominees, Time From Hearings to Confirmation

Judicial Review  Judicial review: the power of courts to declare laws unconstitutional  Judicial restraint approach  Activist approach  Two approaches are NOT parallel to liberal and conservative Copyright © 2015 Cengage Learning. All rights reserved. 6

The Development of the Federal Courts  Founders’ View  Did not expect courts to play significant role in public policy  Courts supposed to apply existing law Copyright © 2015 Cengage Learning. All rights reserved. 7

The Development of the Federal Courts  National Supremacy and Slavery  Marbury v. Madison  McCulloch v. Maryland  Dred Scott  Government and the Economy  14 th Amendment and private property Copyright © 2015 Cengage Learning. All rights reserved. 8

The Development of the Federal Courts  Government and Political Liberty  FDR and the New Deal  The Warren Court  The Revival of State Sovereignty  Movement to restore states’ rights since 1992  National Federation of Independent Business v. Sebelius Copyright © 2015 Cengage Learning. All rights reserved. 9

Chief Justices of the United States Copyright © 2015 Cengage Learning. All rights reserved. 10

Economics and Civil Liberties Laws Overturned by the U.S. Supreme Court, by Decade, 1900–2006 Copyright © 2015 Cengage Learning. All rights reserved. 11

The Structure of the Federal Courts  Lower Federal Courts  Constitutional Courts  District courts  Courts of appeals  Legislative Court  Court of Military Appeals & territorial courts Copyright © 2015 Cengage Learning. All rights reserved. 12

U.S. District and Appellate Courts Copyright © 2015 Cengage Learning. All rights reserved. 13

The Structure of the Federal Courts  Selecting Judges  Party background  Judicial selection surprises  Federal judge characteristics  Senatorial courtesy  The “Litmus Test” Copyright © 2015 Cengage Learning. All rights reserved. 14.

Female Judicial Appointments 1963–2013 Copyright © 2015 Cengage Learning. All rights reserved. 15

Minority Judicial Appointments 1963–2013 Copyright © 2015 Cengage Learning. All rights reserved. 16

Senate Confirms Sotomayor Copyright © 2015 Cengage Learning. All rights reserved. 17 Click picture to play video

Senate Confirms Sotomayor Taking a closer look: 1.Why is the selection of justices such a highly political process? 2.Is the current Court an advocate of political change? Is Justice Sotomayor? 3.How does lower court jurist selection differ from that of the Supreme Court? Copyright © 2015 Cengage Learning. All rights reserved. 18

The Jurisdiction of the Federal Courts  Federal-question cases  Diversity cases  Writ of certiorari Copyright © 2015 Cengage Learning. All rights reserved. 19 Clarence Earl Gideon studied law books while in prison so that he could write an appeal to the Supreme Court. His handwritten appeal asked that his conviction be set aside because he had not been provided with an attorney. His appeal was granted.

The Jurisdiction of the Federal Courts Copyright © 2015 Cengage Learning. All rights reserved. 20

Getting to Court  In forma pauperis  Fee Shifting  Standing  Class Action Suits  Brown Copyright © 2015 Cengage Learning. All rights reserved. 21 Linda Brown was refused admission to a white elementary school in Topeka, Kansas. On her behalf, the NAACP brought a class-action suit that resulted in the 1954 landmark Supreme Court decision Brown v. Board of Education.

The Supreme Court in Action  Brief  Amicus curiae  Per curiam opinion  Opinion of the court  Concurring opinion  Dissenting opinion Copyright © 2015 Cengage Learning. All rights reserved. 22

Copyright © 2015 Cengage Learning. All rights reserved. 23 The U.S. Supreme Court Justices in Front row: Justices Clarence Thomas and Antonin Scalia, Chief Justice John Roberts, Justices Anthony Kennedy and Ruth Bader Ginsburg; second row: Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito, and Elena Kagan.

The Power of the Federal Courts  The Power to Make Policy  Stare decisis  Political question  Remedy  Views of Judicial Activism  Legislation and the Courts Copyright © 2015 Cengage Learning. All rights reserved. 24

Checks on Judicial Power  Congress and the Courts  Confirmations  Impeachment  Number of judges  Jurisdiction Copyright © 2015 Cengage Learning. All rights reserved. 25

Checks on Judicial Power  Public Opinion and the Courts  Restrains and energizes  Activism coincides with political change  Most changes in Court come from changes in its personnel (not from Congress) Copyright © 2015 Cengage Learning. All rights reserved. 26

Public Approval of the Supreme Court’s Performance, 1974–2011 Copyright © 2015 Cengage Learning. All rights reserved. 27