1. The Court in Action Institutions of Government #8

2. Brief History of the Courts National Government’s Role (Founding to 1850s) What was the relationship of the National Government to the states and what powers did the National Government have legitimately? Marbury v Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824) Slavery (1850s-Civil War) Dealt with nature of the Constitution and could the Federal Government regulate slavery? Scott v. Sandford (1857) (Dred Scott Case)

3. Brief History of the Courts Government and the Economy (1865-1936) When could state and federal government regulate the economy? Private Property protected but could not develop a identity on what was reasonable regulation of the economy. 14 th and 15 th Amendment narrowly interpreted Government and Political Liberty (1936 to Now) Defers to legislature on economic issues. Defining rights. Beginning in 1992 started reversing trend towards increased federal power.

4. Copyright © 2013 Cengage Note: Omitted is John Rutledge, who served for only a few months in 1795 and who was not confirmed by the Senate.

5. Selection of Judges General Process: President appoints a judge to the federal bench. The Senate holds a hearing and vote to “confirm.” Remember: Although the Supreme Court Justices get the most attention ALL Federal Judges are selected with this procedure Senatorial Courtesy Appointees for federal courts (not Supreme) are reviewed by Senators from that state (if same party as President) Judicial Behavior Quality of judicial rulings and opinions in the past Character issues? The Litmus Test Test of ideological compatibility Leads to conflicting circuit court rulings due to different Presidential Appointments Threat of filibuster leads Presidents to seek 60 votes to confirm.

6. The Politics of Judicial Selection

7. The Nature of the Judicial System Introduction: – Two types of cases: Criminal Law: The government charges an individual with violating one or more specific laws. Civil Law: The court resolves a dispute between two parties and defines the relationship between them. – Most cases are tried and resolved in state, not federal courts. Cases of burglary or divorce

8. The Nature of the Judicial System Participants in the Judicial System – Litigants Plaintiff—the party bringing the charge Defendant—the party being charged Jury—the people (normally 12) who often decide the outcome of a case Standing to sue: plaintiffs have a serious interest in the case; have sustained or likely to sustain a direct injury Justiciable disputes: a case must be capable of being settled as a matter of law.

9. The Nature of the Judicial System Participants in the Judicial System – Groups Use the courts to try to change policies Amicus Curiae briefs used to influence the courts – “friend of the court” briefs used to raise additional points of view and information not contained in briefs of formal parties – Attorneys 800,000 lawyers in United States today Legal Services Corporation: lawyers to assist the poor Access to quality lawyers is not equal.

10. How Does a Case Reach the Supreme Court? The Rule of 4 – The Court gets to pick and choose which cases it will hear. – If 4 judges agree they will hear a case that case is granted a writ of certiorari (writ of cert). Less than 5% of all appeals are heard by the Supreme Court. What type of cases does the court take? – A lower level court makes a decision that conflicts with previous Supreme Court rulings – A Constitutional question is raised that has not been examined by the Court before – Differing District Court rulings on similar issues – Departure from previous procedures in lower courts.

12. The Government’s Response The Solicitor General: – a presidential appointee and third-ranking office in the Department of Justice – is in charge of appellate court litigation of the federal government – Four key functions: Decide whether to appeal cases the government lost Review and modify briefs presented in appeals Represent the government before the Supreme Court Submit a brief on behalf of a litigant in a case in which the government is not directly involved

13. Deterrents to Courts Supreme Court accepts so few cases (<5%) Costs of Appeals are high – Some remedies to high costs exist In forma pauperis: Poor plaintiff, government covers costs Interest groups cover cost Time is a cost as well Fee Shifting: Loser of case may have to cover winner’s legal cost

14. Procedure of the Court Once the Court Decides to hear a case… – Brief Filing The parties file written briefs outlining their legal argument for the proposed remedy During this time interested 3 rd parties can file briefs known as Amicus Curiae (“Friends of the Court”) with their arguments. – Oral Arguments 30 minutes given to each side to present their legal argument. (Time can be extended in controversial or extraordinary cases) Judges can interrupt to ask questions of the lawyers All arguments since 1955 have been recorded (oyez.org)

15. The Decision Making Process Conference – The judges meet, alone without any clerks, and discuss the case. – The judges from senior (Chief Justice) to most junior give their opinions. – Once the preliminary vote is tallied the opinion writing is assigned by the senior most judge on the majority side (can give the opinion to themselves)

16. Opinion Writing The justice charged with writing the opinion circulates a draft among the others Justices may suggest changes or simply join the opinion At this point Justices might HAVE changed their mind about the issue and can change their vote The opinion includes the facts of the case, relevant case law from previous cases, the decision reached, and the legal argument why that decision was made.

18. Kinds of Court Opinions Per curiam: brief and unsigned Opinion of the court: majority opinion, sets precedent Concurring opinion: agrees with the ruling of the majority opinion, but for a different or additional reason Dissenting opinion: minority opinion; does not serve as precedent

19. Categories of Opinions Policy Making Decisions vs. Norm Enforcing – Norm Enforcing (95% of all decisions): Most Supreme Court decisions enforce the lower court’s rulings. Referred to as Stare Decisis (Let the decision stand) – Policy Making: Rulings that change the previous legal thinking on an issue and force the government to adopt a new policy.

20. Judicial Philosophies Liberal vs. Conservative – Liberal Judicial Philosophy: Tends to hold group rights (civil rights) and equality over liberty. – Conservative Judicial Philosophy: Tends to hold individual rights (right to property, speech) and liberty over group rights and equality. Activist vs. Constructionist – Activist Judges: Believe that the Constitution can be interpreted for meaning and applied to modern day society. – Constructionist Judges: Believe in a literal reading of the Constitution. No meaning can be inferred and you must use the words as they appear in the Constitution.

21. Understanding the Courts

22. After the Decision Judicial implementation – How and whether court decisions are translated into actual policy, thereby affecting the behavior of others – Must rely on others to carry out decisions Interpreting population: understand the decision Implementing population: the people who need to carry out the decision–may be disagreement Consumer population: the people who are affected (or could be) by the decision

23. Understanding the Courts The Courts and Democracy – Courts are not very democratic. Not elected Difficult to remove judges and justices – The courts often reflect popular majorities. – Groups are likely to use the courts when other methods fail, which promotes pluralism. – There are still conflicting rulings leading to deadlock and inconsistency.

24. The Roberts Court (2005-Current) Liberal Moderate Conservative Antonin Scalia (Appointed 1986 by Ronald Reagan) Conservative Constructionist Has written more concurring opinions than any other judge during his tenure. And the second most dissenting opinions Is the most vocal in questioning opponents during oral agruments Anthony Kennedy (Appointed 1988 by Ronald Reagan) Moderate leaning Conservative Is often described as the “Swing Vote” on the current court. Recently has began relying on international law to help interpret the Constitution, especially in cases involving “modern human rights.” Clarence Thomas (Appointed 1991 by George H.W. Bush) Conservative Activist Most controversial member of the court. Barely won confirmation despite accusation of sexual harassment and non-qualified rating by the ABA. Doesn’t ask any questions during oral arguments. Ruth Bader Ginsburg (Appointed 1993 by Bill Clinton) Liberal Advocate of dialogue with other branches despite fears it would politicize the court. Often seek consensus building. Advocates looking at international law as well as women’s rights Stephen Breyer (Appointed 1994 by Bill Clinton) Liberal Activist The counter opinion to Scalia, even going so far as to write a book countering his legal philosophy Pragmatic decision maker. Lowest rate of overturning congressional actions. John Roberts (Appointed 2005 by George W. Bush) Conservative Constructionist Named Chief Justice upon Rehnquist’s death. Has rules very similar to Rehnquist (He was a clerk to him) Too early to give any consistent positions Deciding vote that ruled Health Care constitutional. Samuel Alito Jr. (Appointed 2006 by George W. Bush) Conservative Constructionist Had a very contentious confirmation hearing, surviving an attempted Democratic filibuster, and being only the second nominee in history that the American Civil Liberties Union has opposed confirmation for. Confirmed by final vote of 58-42. Nicknamed “Scalito” for his previous rulings being much in line with Scalia’s judicial philosophy. Has issued a dissent suggesting Roe v. Wade be overturned. Elena Kagan (Appointed 2010 by Barack Obama) Liberal leaning Moderate First justice appointed without any previous Judicial experience since William Rehnquist. Served as a law professor at Harvard and became Solicitor General (the lawyer representing the U.S. in Supreme Court hearings) before nomination. Has been praised early on for the quality of her opinion writing saying they can give Scalia a run for his money. Sonia Sotomayor (Appointed 2009 by Barack Obama) Liberal First Hispanic on the Supreme Court. Too early to tell if she falls under the activist or constructionist philosophy but speculation is that she is Activist.