June 9 th, 2003 THE UNITED STATES SUPREME COURT (Cont’d)

June 9June 9thth, 2003, 2003

THE UNITED STATES THE UNITED STATES SUPREME COURT SUPREME COURT

(Cont’d)(Cont’d)

Impartiality and the Practice of Impartiality and the Practice of Decision-MakingDecision-Making

• Control over DocketControl over Docket– limited to cases put to the Supreme Courtlimited to cases put to the Supreme Court

• Judicial ReasoningJudicial Reasoning

• Rules of RestraintRules of Restraint

Styles of Decision-MakingStyles of Decision-Making

• judicial restraint vs. judicial activismjudicial restraint vs. judicial activism

• strict constructionism vs. non-strict constructionism vs. non-constructionismconstructionism

Constraints on the CourtsConstraints on the Courts

• decision-making rulesdecision-making rules

• composition/appointmentcomposition/appointment– independence from Presidentindependence from President

• nomination must be ratified by Senatenomination must be ratified by Senate• once appointed, President cannot removeonce appointed, President cannot remove

– tenure -- lifetenure -- life

• President only has limited opportunities to President only has limited opportunities to appointappoint

Confirms Nominations, Impeach

Nominates Judges

OVERVIEW: FORMAL CHECKS AND BALANCES

Constraints on the CourtsConstraints on the Courts

• decision-making rulesdecision-making rules

• composition/appointmentcomposition/appointment– independence from Presidentindependence from President

• nomination must be ratified by Senatenomination must be ratified by Senate• once appointed, President cannot removeonce appointed, President cannot remove

– tenure -- lifetenure -- life

• President only has limited opportunities to President only has limited opportunities to appointappoint

• concern with legitimacyconcern with legitimacy

Composition of the US Supreme CourtComposition of the US Supreme Court

Liberal/ModerateLiberal/Moderate

Swing VotesSwing Votes

ConservativeConservative

J.P. Stevens J.P. Stevens Republican 1975 (Ford) Retire 2001

D. Souter D. Souter Republican 1990 (Bush) Retire 2020

R. Bader Ginsburg R. Bader Ginsburg Democrat 1993 (Clinton) Retire 2009

S. Day O’Connor S. Day O’Connor Republican 1981 (Reagan). Retire 2011

S. Breyer S. Breyer Democrat 1994 (Clinton). Retire 2019

A. Kennedy A. Kennedy Republican 1988 (Reagan) Retire 2017

C. Thomas C. Thomas Republican 1991 (Bush) Retire 2029

A. Scalia A. Scalia Republican 1986 (Reagan) Retire 2017

W.H. Rehnquist W.H. Rehnquist (Chief (Chief

Justice)Justice) Republican 1975 (Ford) Retire 2005





























Main Point!Main Point!

• the Supreme Court is the Supreme Court is politicalpolitical

• however,however, it is politics by other means it is politics by other means– must conform to rules of judicial reasoningmust conform to rules of judicial reasoning– decisions and behaviour of the courts are decisions and behaviour of the courts are

constrained by the need to maintain legitimacyconstrained by the need to maintain legitimacy

• intent is to provide balance against branches of intent is to provide balance against branches of government which are more responsive to government which are more responsive to mass political pressuremass political pressure

THE AMERICAN THE AMERICAN PRESIDENTPRESIDENT

June 9June 9thth, 2003, 2003

Images of the PresidencyImages of the Presidency

• the “imperial” presidencythe “imperial” presidency

• the “imperilled” presidencythe “imperilled” presidency

• the President as persuaderthe President as persuader

Formal Roles of the PresidentFormal Roles of the President• formal powers over other branches of formal powers over other branches of

governmentgovernment

Controls Budget, Approves Controls Budget, Approves Nominations and Treaties, Nominations and Treaties, Override Veto, ImpeachOverride Veto, Impeach

Nominates Judges

VETO!

Declare Acts Declare Acts UnconstitutionalUnconstitutional

Formal Roles of the PresidentFormal Roles of the President• formal powers over other branches of governmentformal powers over other branches of government

• Chief Political ExecutiveChief Political Executive– the White Housethe White House– Executive Office of the PresidentExecutive Office of the President– the Cabinetthe Cabinet

• Head of StateHead of State

• Commander in ChiefCommander in Chief

• Key powers in Foreign PolicyKey powers in Foreign Policy

Formal Limits on the Power of Formal Limits on the Power of the Presidentthe President

• CongressCongress


VETO!



• Supreme CourtSupreme Court


Nominates Judges

VETO!

Declare Acts Declare Acts UnconstitutionalUnconstitutional



• Supreme CourtSupreme Court

• Term Limits -- 22nd Amendment (1951)Term Limits -- 22nd Amendment (1951)– lame duck presidentlame duck president

– unrestrained presidentunrestrained president

Informal Power of the PresidentInformal Power of the President

• five constituenciesfive constituencies– the executive officialdomthe executive officialdom– CongressCongress– partisanspartisans– citizens at largecitizens at large– interests from abroadinterests from abroad

Informal Power of the President Informal Power of the President

five constituenciesfive constituencies unity and energyunity and energy symbolic leadersymbolic leader

Images of the PresidencyImages of the Presidency

• the “imperial” presidencythe “imperial” presidency

• the “imperilled” presidencythe “imperilled” presidency

• the President as persuaderthe President as persuader

The “Power” of the Presidency?The “Power” of the Presidency?

• Different Times/Presidents...Different Different Times/Presidents...Different Presidential ImagesPresidential Images– electoral mandateelectoral mandate

Presidential Election ResultsPresidential Election Results

010203040506070

Nixon

1972

Carter

1976

Reaga

n 1980

Reaga

n 1984

Bush 19

88

Clinto

n 1992

Clinto

n 1996

Bush Jr

. 200

0

Vote % Margin %


• Different Times/Presidents...Different Different Times/Presidents...Different Presidential ImagesPresidential Images– electoral mandateelectoral mandate

– cycle of presidential popularitycycle of presidential popularity


• Different Policy Areas...Different Different Policy Areas...Different Presidential ImagesPresidential Images– domestic policy vs. foreign policydomestic policy vs. foreign policy

• the main formal checks on presidential power the main formal checks on presidential power tend to operate in the domestic realmtend to operate in the domestic realm

– CongressCongress

– Supreme CourtSupreme Court

– military action and presidential popularitymilitary action and presidential popularity


• Power to Propose, Power to OpposePower to Propose, Power to Oppose– ability of president to proposeability of president to propose

• ability of president to enact legislationability of president to enact legislation

– ability of president to opposeability of president to oppose


• Different Times/Presidents...Different Different Times/Presidents...Different Presidential ImagesPresidential Images

• Different Policy Areas...Different Different Policy Areas...Different Presidential ImagesPresidential Images

• Power to Propose, Power to OpposePower to Propose, Power to Oppose

Main Point!Main Point!

• the power of presidency is...the power of presidency is...– variable and fluidvariable and fluid– circumscribedcircumscribed

• the different images of presidential power the different images of presidential power mirror the tension between mass politics and mirror the tension between mass politics and concern for individual rights and limited concern for individual rights and limited governmentgovernment

• tension among different democratic models is tension among different democratic models is evident in the paradoxical public views of the evident in the paradoxical public views of the presidency”presidency”

Paradoxes of the PresidencyParadoxes of the Presidency• 1. Demand strong leadership/Suspicious of 1. Demand strong leadership/Suspicious of

strong leadershipstrong leadership• 2. Want president to represent “common” 2. Want president to represent “common”

people; yet want president to be a heroic people; yet want president to be a heroic figurefigure

• 3.Want a president that is decent, just, caring, 3.Want a president that is decent, just, caring, compassionate; yet want the president to be compassionate; yet want the president to be ruthless in situations that require it.ruthless in situations that require it.

Paradoxes of the PresidencyParadoxes of the Presidency

• 4. Want president to be “above politics”; 4. Want president to be “above politics”; yet an effective president must be highly yet an effective president must be highly political.political.

• 5. Want a president that can unify diverse 5. Want a president that can unify diverse people and interests; yet, want a president people and interests; yet, want a president that will take firm stands on controversial that will take firm stands on controversial issues (that necessarily divide people)issues (that necessarily divide people)


• 6. Want president to provide vision, 6. Want president to provide vision, leadership; yet, want president to respond leadership; yet, want president to respond to the will of the people.to the will of the people.

• 7. Want powerful, self-confident 7. Want powerful, self-confident leadership; suspicious of leaders who leadership; suspicious of leaders who seem arrogant or view themselves as seem arrogant or view themselves as infallible and/or above criticism.infallible and/or above criticism.


• 8. What it takes to 8. What it takes to becomebecome president are president are not necessarily the traits need to not necessarily the traits need to bebe president.president.

• 9. Presidents are strong in some areas and 9. Presidents are strong in some areas and weak in others -- leads public to a clash weak in others -- leads public to a clash of expectationsof expectations

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June 9 th, 2003 THE UNITED STATES SUPREME COURT (Cont’d)

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