1. The Judiciary

2. Federalist Paper 78
Hamilton argues that an independent judicial branch is essential to the protection of liberty.
He implies that the Supreme Court has the power of judicial review (the power to overturn an executive action or law passed by Congress as unconstitutional).

3. Mode/Method of appointing judges-Checks & Balances
Federalist #76, #77 discussed Executive Power to appoint, Congress to ratify, #78 presumes same
Would President pressure Senate to support nominee? NO-Senate virtue
Would Senate have undue influence on President over appointments? NO-Public scrutiny

4. Structure of the Federal Courts
- Constitutional Courts (lifetime tenure)
District Courts(94): the entry point for most litigation in federal courts, trial courts.
Courts of Appeal (13): review all final decisions of district courts.
Supreme Court: the final court of appeal. Sets its own agenda.
Legislative Court
Court of Military
Appeals &
territorial courts

5. Map 16.1 U.S. District and Appellate Courts
Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth. The Court of Appeals for the Federal Circuit, located in Washington, D.C., is a Title 3 court that hears appeals regarding patents, trademarks, international trade, government contracts, and from civil servants who claim they were unjustly discharged.
Source: Administrative Office of the United States Courts (January 1983).
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6. The Development of the Federal Courts
Slavery
President Jackson’s appointment of Chief Justice Roger B. Taney-succeeds Marshall 1836
The Dred Scott case (1857): Said African Americans were not citizens, Missouri Compromise prohibiting slavery is unconstitutional-
Public outcry and Civil War follow
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7. The Development of the Federal Courts
Government and the Economy
1860’s–1930’s: When can the economy be regulated by the states and when by the national government?
Private property and the 14th Amendment-Life, Liberty, Property, contracts, corporations, etc.
14th and 15th Amendments and the effect on African-Americans –court protection from hostile state action
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8. The Development of the Federal Courts
Government and Political Liberty
Supreme Court decisions-late 30’s more civil liberties, less economic questions
FDR’s “Court Packing Scheme”
Chief Justice Earl Warren- rise in judicial activism
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9. The Development of the Federal Courts
The Revival of State Sovereignty
Supreme Court’s movements since the early 1990’s-less “interstate commerce” regulation, more decisions supporting states
11th amendment had been ratified to prevent a citizen from suing a state in federal court and courts seem to embrace it in modern times
Supreme Court’s rendezvous with the new health care plan of 2010: Is the health care mandate interstate commerce thereby allowing federal gov’t to levy taxes? STAY TUNED
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10. Figure 16. 1 Economics and Civil Liberties Laws Overturned by the U. S
Figure 16.1 Economics and Civil Liberties Laws Overturned by the U.S. Supreme Court, by Decade, 1900–2006
Note: Civil liberties category does not include laws supportive of civil liberties. Laws include
federal, state, and local.
Source: Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2007–2008,
5th ed., p. 302 (Washington, D.C.: CQ Press, 2008). Reprinted by permission of CQ Press; a
division of Congressional Quarterly, Inc.
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11. Tenure of Judges-Fed. 78 Term continues during good behavior
Assures judicial independence, knowledgeable jurists + protects individual rights
Prevents invasions on judicial power by Executive/Legislature
U.S. has effective means of checking behavior

12. Selecting Judges
All federal judges are appointed by the president and confirmed by the Senate.
Senatorial courtesy allows a senator from the president’s party to reject a federal district nominee from his or her state.

13. Selecting Judges
Presidents appoint nominees who share their political ideology. (Litmus Test?= Ideological Purity?)

14. Insulation from Public Opinion
Appointment process and life terms insulate justices from public opinion.
Justices deliberate in secret.

15. Jurisdiction
Original: where the case is heard first, usually in a trial.
Appellate: cases brought on appeal from a lower court.

16. The Jurisdiction of the Federal Courts
Federal-question cases – Cases concerning the Constitution, federal laws, or treaties
Diversity cases – Cases involving citizens of different states who can bring suit in federal courts
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17. Federal Jurisdiction Dual Court System
Some cases that begin in state courts can be appealed to the Supreme Court.
Controversies between two state governments can only be heard by the Supreme Court.

18. Figure 16.4 The Jurisdiction of the Federal Courts
Replace with jpeg, p. 441
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19. Getting to Court: Standing to Sue
Sovereign Immunity: Can’t sue the gov’t without its’ consent
A party must demonstrate actual harm or a reasonable relation to the situation being challenged.
The Supreme Court is a court of concrete review (there must be an actual dispute), rather than a court of abstract review (involving a hypothetical dispute).

20. Getting to Court In forma pauperis
Fee Shifting-loser pays winner court costs
Class Action Suits
Carl Iwasaki/Time Life Pictures/Getty Images
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, p. 455.
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21. Getting to Court: Writ of Certiorari- “made more certain”
The “rule of four” requires agreement of four justices to hear the case
Involving significant federal or constitutional question
Involving conflicting decisions by circuit courts
Involving Constitutional interpretation by one of the highest state courts

22. The Supreme Court in Action
Brief – summarizes case
Amicus curiae – friend of the court
Per curiam opinion-brief, unsigned opinion of the court
Opinion of the court-majority view
Concurring opinion-agreeing w/ majority but w/ different reasons
Dissenting opinion-disagreeing opinion from majority decision
Include picture of the current Supreme Court, p. 447
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23. Judicial Review
Stare decisis-Let decision stand-based on prior cases/precedent
Power to find legislation to be unconstitutional is not enumerated but was implied by the founders
Already practiced in states & modeled in Britain
Designed not to increase judiciary but to limit legislature

24. Judicial Review
Defined: the power of the courts to declare laws unconstitutional
Over 160 federal laws have been declared unconstitutional
It is the chief judicial weapon in the checks and balances system.

25. The Development of Judicial Review
Marbury v. Madison (1803)
Chief Justice John Marshall concludes that judges have the power to decide whether acts of Congress, the executive branch, state laws, and even State Constitutions violate the US Constitution
Supreme Court justices have the final say about the meaning of the Constitution
This power to declare what the Constitution means and whether government actions violate the Constitution is know as JUDICIAL REVIEW

26. Premises of Judicial Review
The Constitution is a superior, paramount law that cannot be changed by ordinary means.
Acts of Congress, the Executive, and the States reflect temporary, fleeting views of what law is.
Acts of Congress, the Executive, and the States that conflict with the Constitution are not entitled to enforcement and must be disregarded.
Judges are in the best position to declare what the Constitution means.
Until recently “political questions” have been left to Executive & Legislative branches.
Remedy - Supreme court order declaring what actions must be taken to right a wrong

27. Arguments Against Judicial Review
Popular Sovereignty is represented in the Legislatures. Judicial Review disregards sovereignty of the people.
Judicial Review could lead to political turmoil if other branches or states to not follow the courts’ interpretations.
Judicial Review makes judiciary equal or even superior to legislatures, even though judges are not elected
All government officials take oath to consider constitutionality of their actions
Judges errors in interpretation cannot be corrected through voting, but only through amendments

28. Constitutional Interpretation
Strict construction/judicial restraint: judges are bound by the wording of the Constitution; judges are interpreters, not policy-makers. This is linked to “original intent.”
Loose construction/Judicial activism: judges should look to the underlying principles of the Constitution, and this can result in new policy.

29. Arguments for Judicial Activism
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.

30. Arguments Against Judicial Activism
Judges lack expertise in designing and managing complex institutions.
Initiatives require balancing policy priorities and allocating public revenues.
Courts are not accountable because judges are not elected and serve life terms.

31. Checks on Judicial Power
Court has no “police” power; The president and states can ignore/evade decisions.
Congress confirms judges & can impeach judges for bad behavior
Congress can pass legislation limiting court decisions & jurisdiction

32. Checks on Judicial Power
Congress and the states can amend the Constitution (11th amendment ratified to prevent a citizen from suing a state in federal court)
Congress can alter/repass laws found unconstitutional
Congress can alter the courts’ jurisdiction
Congress can change the number of judges

33. Public Opinion and the Courts
Defying public opinion may be dangerous to the legitimacy of the Supreme Court.
Impeachment and lack of enforcement powers mean justices are not completely isolated from public opinion.

34. Figure 16.5 Patterns of Public Confidence in the Court, 1974–2006
Replace with jpeg, p. 453
Source: The Gallup Poll.
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