1. 11 Theory of Knowledge/Government Ms. Halle Bauer
The Judicial Branch
11 Theory of Knowledge/Government
Ms. Halle Bauer

2. The Role of the Courts
What is the role of the judicial branch of government? Why does it exist?
Hamilton’s Federalist Papers:
The judicial branch is the “least dangerous” in American government because it carries “neither force nor will but merely judgment.”
Is this true today?

3. The Evolution of the Court System
Jay and Ellsworth Courts
Demonstrated that the courts existed to mediate individual conflicts, not to shape policy
Marshall and Taney Courts
Increased powers and role of the Federal government and courts
Civil War-New Deal Courts
Defined “reasonable” and “unreasonable” government intervention in economic affairs
Warren Court
Focused on rights and political liberty with an increase in activist decisions
1992-Present
Returned to limiting the role of the federal government in state affairs

4. Types of Law Statutory Law Codified in the written legal system
Criminal Law
Violations of laws against the criminal code
Common Law
Unwritten law based on precedent
Stare decisis
“Let the decision stand”
Civil Law
Disputes or conflicts between two parties not necessarily involving society as a whole

5. Judicial Powers Judicial Review But how?
The Federal courts have the power and the responsibility to determine if laws are consistent with the Constitution.
But how?
Strict constructionists use judicial restraint.
Judges should make decisions solely on the language of the law.
Loose constructionists take the activist approach.
Judges should make decisions using the underlying principles of the law to guide policy on moral and/or economic grounds.

6. How do you think judges should interpret the law?

7. Jurisdiction Federal Jurisdiction State Jurisdiction
Question Cases directly concern federal laws, treaties, or the Constitution
Diversity Cases involve citizens from two or more different states
The Dual Sovereignty Doctrine allows both state and federal courts to try an individual for the same act
Other cases in which…
A federal law is broken
A person declares bankruptcy
Two states are in conflict
Most criminal cases
Most contract cases
Family law
Cases involving state laws

8. Original Jurisdiction
The U.S. Supreme Court has original jurisdiction for cases involving…
Two or more states
The U.S. government and a state
Ambassadors and diplomats
A state and a citizen of a different state
Original Jurisdiction
The U.S. Supreme Court

9. The Federal Court System
Constitutional Court
Legislative Court
District Courts
94 total, with at least one in each state
The lowest federal courts
Where trials take place
Courts of Appeals
In 11 circuits plus D.C. and a federal circuit court
Where appeals take place
Ordered by Congress for specific purposes
Court of Military Appeals

10. Judges…as Policy Makers?
Courts have ruled over 1000 federal laws unconstitutional, and the Supreme Court has reversed its decisions over 200 times since 1810.
When judges reinterpret the law or the Constitution in significant ways, policy changes.
In the summer of 2013, the Supreme Court struck down the Defense of Marriage Act. Since then 5 federal courts have decided using U.S. v. Windsor as a precedent.

11. Our Judges…
Senatorial courtesy is a practice allowing senators from a state affected by a nomination to influence the candidate.
Senators often look at the political ideology and philosophies of nominees as a “litmus test” during confirmation hearings.

13. What does the Supreme Court do?
1. Create a docket.
Review appeal applications and issue a writ of certiorari (cert) directing a lower court to send up cases that at least 4 justices want to hear

14. What does the Supreme Court do?
2. Hear Cases.
Read briefs
Containing lawyers’ arguments
Amicus curiae: friend-of-the- court briefs
Hear oral arguments
Solicitor General represents U.S. government
Consult expert opinions
In journals and former cases
Deliberate and decide
Majority wins

15. 3. Write opinions. (Such as with Shelby County v. Holder in 2013)
Opinion of the Court
“Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
Concurring Opinion
“By leaving the inevitable conclusion unstated, the court needlessly prolongs the demise of that provision [of the Voting Rights Act]”. I would find Provision 5 unconstitutional.”
Dissenting Opinion
“Just as buildings in California have a greater need to be earthquake proofed, places where there is a greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination.”
Per Curiam Opinion

17. Is Judicial Review the Final Say?

18. Is Judicial Review the Final Say?
Checks on the Supreme Court’s power:
Congress shapes the courts by confirming appointees to the bench.
Congress can impeach judges.
Congress can change the number of judges in the federal system.
Congress can amend the Constitution.
Congress can repass slightly amended laws.
Congress can determine the rules of jurisdiction in many cases.