Chapter 11 Judicial Politics I. Judicial Power A. Constitutional Power of the Courts Judges are appointed for life, not elected Their salaries can not be reduced during their term Federal judicial power extends to any case arising under the Constitution (very vague), cases in which officials of the federal government or foreign governments are a party, and cases between states or different state citizens. B. Interpreting the Constitution: Judicial Review Judicial Review – power of the federal courts to declare laws of Congress, state legislatures, and actions of the president ___________________________. The Constitution is the “Supreme Law of the Land” (Article VI) Judicial review does not appear in the Constitution. It is inferred. Marbury v. _____________ (1803) – officially established JR. Chief Justice John Marshall explained the concept in a syllogism (Const is the supreme law of land; SC interprets the Const; SC is the supreme interpreter of land)

Why controversial to people like Jefferson? An unelected 5 justices trump elected (more accountable) branches; perhaps a “run away court” C. Use of Judicial Review However, the court strikes down few laws. The Court did not strike down a law after Marbury (1803) until Dred Scott v. Sandford (1857). Since then, state laws have been overturned relatively frequently. All in all, the court has struck down fewer than _______ of the more than 60,000 laws passed by Congress (2 centuries). 1. Striking down Congress: - Dred Scott v. Sandford (1857): Missouri Compromise 2. Striking down the President: Youngstown Sheet and Tube Co. v. Sawyer (1952): Truman’s steel mill seizure 3. Striking down the states (most likely candidate for striking down law): Brown v. Board of Education of Topeka (1954): ended mandated state segregation in schools in 21 states.

Green v. County School Board (1968): required integration in state schools Roe v. Wade (1973): struck down anti-abortion laws in more than 40 states. D. Interpreting Federal Laws: federal courts also interpret laws passed by Congress (statutory laws). E. Supreme Court’s Policy Agenda (where do they dominate?) Answer: In policy areas that are not readily, sufficiently, and/or easily handled by the __________ branches of government. Civil Rights and treatment of women and minorities Rights of criminal defendants Freedom of press, speech, and __________________ Resolving disputes with respect to federalism and the separation of powers. Why that is it about these areas that makes them appear on the court docket and not on the agendas of elected institutions? Not much majority appeal; mostly minority interest.

II. Activism versus self-restraint Judicial self-restraint – “the belief 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.” In other words, exhaust every other governmental solution (legislative process) before stepping in. Judicial __________________ – argues that the federal courts – rather than or equally in addition to – Congress, the president, or the states should decide all important matters. Judicial activists make new law through judicial interpretation. They typically use parts of the Constitution considered vague in order to become active. Original _________________ – an attempt to interpret the Constitution by trying to ascertain the values of the Founders. Seems natural enough; critics say it is inappropriate (different time) and too difficult to ascertain (sketchy record & which framers?)

ActivistRestraintist Interpretation of Constitution Open; the const. simply one factor Closed; the const. only factor to consider View of Judicial Role in Policy process Strong; because judges are unelected and therefore, they are thought to be neutral or objective Deferential; because unelected judges should let policymaking be conducted by bodies that are closest to the people

*In interpreting the Constitution in the light of an ever-changing society, whose values should take priority, the views of a given justice or those of the founders? Should the moral views of unelected justices take priority over elected representatives? Stare Decisis – letting ______________ decisions dictate current or future decisions of the court (precedent). This is not always followed, of course (i.e. Brown overturned Plessy).

III. Structure and Jurisdiction of Federal Courts A. Jurisdiction – power of a court to hear a particular case Appellate Jurisdiction – Courts power to review a lower court’s decision. Original Jurisdiction – Court’s right to be the FIRST to hear a case. B. Types of Courts (Next slide) U.S. Supreme Court (nine judges) – original and appellate jurisdiction; About 9,000 appeals are made to the S.C. They hear only about __________. Courts of Appeals (12 Circuit Courts + DC Court; no original jurisdiction; 3 judge panels). MS is in the 5th. Federal _______________ Courts (each state has at least one and 94 total; only original jurisdiction; 1 judge; hear as many as 300,000 cases a year) State Courts – there are 50 separate and independent state court systems. Appeals from state supreme courts must go directly to the U.S. Supreme Court. Must contain a “federal question” however.

IV. Special Rules of Judicial Decision Making Cases and Controversies – courts wait until disputes are brought before them. They decide guilt or innocence in criminal cases and enforce contracts and award damages in civil cases. Adversarial Proceeding – lawyers run the show, call/question the witnesses, expected to muster evidence and the truth comes out of the confrontation. Judges are dispassionate, observers, inactive, and serve as court referees not active participants. Standing – Requirement that the party who files a lawsuit have a legal stake in the outcome (they can show clear harm). You can’t simply declare dissatisfaction (e.g. taxpayer can’t sue government for expenditure choice). Legal Fees – It costs money to go to court, but the sixth amendment guarantees the “Assistance of Counsel” if one cannot afford to pay. Remedies and Relief – more and more, the decisions of a judge are designed to correct a wrong, not simply rule on the legality of an issue.

Appointments of Independent Counsels – Ethics in Government Act of 1978 grants federal courts the power, upon request of the attorney general, to appoint “special prosecutors” to investigate the president or high officials. V. Appointment Decisions President appoints justices for life. The Senate must confirm. We have moved from senatorial courtesy towards partisan contests at all court levels. Ideology (e.g. Bork) Filibustering nominees – Const requires only a majority to confirm nominees, but Dems have used the filibuster, which can only be ended with 60 votes to deny a vote on nominees to the bench. VI. Who is selected (Next slide) Law Degrees (from most prestigious or Ivy League universities usually) Judicial Experience (1/2 judges previously) Age (50s typically) Race or Gender (implicit quota; currently one female, one AA) Judge Roberts? Alito?

NameAppt. byReligionLaw school John RobertsJohn Roberts (Chief ) G.W. BushG.W. Bush – R CatholicHarvard John Paul StevensFordFord – R“Protestant”Northwestern Antonin ScaliaReaganReagan – RCatholicHarvard Anthony KennedyReaganReagan – RCatholicHarvard David Souter G.H.W. Bush G.H.W. Bush – R EpiscopalHarvard Clarence Thomas G.H.W. Bush G.H.W. Bush – R CatholicYale Ruth Bader GinsburgClintonClinton – DJewishColumbia Stephen BreyerClintonClinton – DJewishHarvard Samuel Alito G.W. BushG.W. Bush - R CatholicYale

VII. Supreme Court Decision Making A. Granting Certiorari – agreeing to hear a case requires the approval of 4 justices (“rule of 4”) on the bench. B. Which cases most likely granted? First Amendment Civil Rights (14th amendment) Criminal Justice (Due Process – 5th and 14th) Difference between Circuit Court opinions or Lower Court opinions and the Supreme Court. C. Hearing Arguments Attorneys submit written briefs on the issue. Interested groups submit amicus curiae briefs The Solicitor General presents or defends the U.S. government. Each side usually gets between minutes, although interruptions are frequent.

D. In Conference – Actual decisions are made in private meetings with the Chief Justice speaking first and the others speak in order of seniority. E. Writing Opinions – most opinions are written by law ______________. Majority Opinion – one agreed upon by a majority of justices (assigned by Chief unless he is in the minority; most senior member writes it then). __________________ Opinion – an opinion that agrees with the decision of the majority but for different reasons; often supporting a different policy position altogether. Dissenting Opinion – opinion of a member or group of members in the minority. They disagree both with the majority’s decision and reasoning. Written in hopes of influencing future courts.

VIII. Checking Court Power A. Perception of legitimacy is both a check and tool of court enforcement power. Courts rely upon the executive branch to enforce its decisions; they can’t do it themselves. If the court is widely considered illegitimate, executive branch enforcement is not likely to follow soon. Challenges to court legitimacy came in the Civil Rights era (i.e. Orval Faubus, 1957) when some states refused to comply with Brown v. Board of Education. But because the greater public considered the ruling to be legitimate, the president enforced the decision (although slowly). The court’s constitutional restriction on prayer in schools, however, has seen only gradual enforcement. % confident in SC, Pres, Congress

B. Presidential influence 1.appointment modifies the composition of the court (i.e. 70% of the justices have been appointed by Reagan and Bush 2.Appoints Solicitor General who rarely loses C. Congressional influence Create courts and jurisdictions (i.e. cases between different state citizens must involve a dispute in excess of $75,000 by Congressional statute). C could, but does not, ____________ the number of justices. It nearly raised the number of SC justices to 15 in response to the 5-4 conservative majority in the 1930s who kept striking down FDR’s New Deal programs (one of the 5 “switched in time to save nine” and Congress decided not to change the number). C can ____________ laws that are considered constitutionally questionable to the Supreme Court. C plays a pivotal role in amending the Constitution. (e.g., Congress responded to Dred Scott with the 13th). C can impeach justices, but only 5 have ever been so.