Chapter 13 Judicial PoliticsI. Judicial PowerA. 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 unconstitutional. Judicial review does not appear in the Constitution. It is inferred. But from what?

• The Constitution says it is the “Supreme Law of the Land” (Article VI)• Marbury v. Madison (1803) – officially established JR. Chief Justice

John Marshall explained the concept in a syllogism (Const is the supreme law of land; Supreme Court interprets the Const; therefore, the SC is the supreme interpreter of land)

• Why controversial to people like Jefferson? An unelected 5 justices may trump elected (more accountable) branches of government; perhaps produces a “run away court” or ‘judicial tyranny’ that can’t be corrected by elections

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 150 of the more than 60,000 laws passed by Congress (2 centuries). Examples of using JR to strike down decision of other political institutions:

1. Striking down Congress:• - Dred Scott v. Sandford (1857): Missouri Compromise2. Striking down the President:• Youngstown Sheet and Tube Co. v. Sawyer (1952): Truman’s steel

mill seizure3. 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 elected branches of government.• Civil Rights and treatment of women and minorities• Rights of criminal defendants • Freedom of press, speech, and religion• Resolving disputes with respect to federalism and the separation of

powers.What 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, this approach calls for those seeking a judicial solution to exhaust every other governmental solution (legislative process) before going to court, precisely because judges are not election (unaccountable).

• Original Intent (closely related to self-restraint) – an attempt to interpret the Constitution by trying to ascertain the values of the Founders. Seems natural enough (ask the authors what they meant); critics say it is inappropriate (different time/place) and too difficult to ascertain (sketchy record & which framers?)

• Judicial activism – 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. They think unelected judges are outside politics and better suited than congress to make many policy decisions. Typically believe judges should not limit their interpretations of the constitution to the words themselves, but a bring their own experiences and extra-constitutional concerns to judicial decision-making.

ActivistActivist RestraintistRestraintist

Interpretation of Interpretation of ConstitutionConstitution

Open process; Open process; the constitution the constitution simply simply oneone factor factor

Closed; the Closed; the const. const. onlyonly factor factor to consider; if it is to consider; if it is inadequate, inadequate, amend itamend it

View of Judicial View of Judicial Role inRole inPolicy processPolicy process

Strong; because Strong; because judges are judges are unelected and unelected and therefore, they therefore, they are thought to be are thought to be neutral or neutral or objectiveobjective

Deferential; Deferential; because because unelected judges unelected judges should let should let policymaking be policymaking be conducted by conducted by bodies that are bodies that are closest to the closest to the peoplepeople

*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 past 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 CourtsA. 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; Fig 13-1 & 13-2 in book)• U.S. Supreme Court (nine judges) – original and appellate

jurisdiction; About 9,000 appeals are made to the S.C. They hear only about 100.

• Courts of Appeals (12 Circuit Courts + DC Court; no original jurisdiction; 3 judge panels). MS is in the 5th.

• Federal District 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 monetary 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): Video Privacy (9m mark)• 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?

Name Appt. by Religion Law school

John Roberts (Chief ) G.W. Bush –R Catholic Harvard

Elena Kagan Obama - D Jewish Harvard

Antonin Scalia Reagan – R Catholic Harvard

Anthony Kennedy Reagan – R Catholic Harvard

Sonia Sotomayor Obama – D Catholic Yale

Clarence Thomas G.H.W. Bush – R Catholic Yale

Ruth Bader Ginsburg Clinton – D Jewish Columbia

Stephen Breyer Clinton – D Jewish Harvard

Samuel Alito G.W. Bush - R Catholic Yale

VII. Supreme Court Decision MakingA. 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 cases • Civil Rights (14th amendment) cases• Criminal Justice (Due Process – 5th and 14th)• When there’s a 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 30-60 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 clerks.

• 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).

• Concurring 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 (maybe Jefferson’s concern about judicial tyranny through judicial review is a little overstated?)

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 illigetimate, 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 Bush2. Appoints Solicitor General who rarely losesC. Congressional influence (how can Congress challenge a crazy court?)• Reduce their power by creating other 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, change 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 as a result).

• C can reword 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.