We the People, Sixth edition by Benjamin Ginsberg, Theodore J. Lowi, and Margaret Weir

Chapter 15. The Federal Courts

An Overview

Some Data

Jails and Social Order

The Gavel or the Ballot Box?Will elected branches of government make authoritative policy decisions or will appointed judges determine policy?

In recent years, conservatives have posed this and other questions as criticisms of the rise of judicial power in American politics.

Still, in the 2000 presidential election, conservatives looked to the Supreme Court to make the determinative decision about whether Al Gore or George W. Bush would win Florida’s 25 electoral votes and the presidency.

Conservatives on the Supreme Court ultimately allied in Bush’s favor in the 5 to 4 decision in Bush v. Gore.

Indeed, at one crucial stage in the recount process, one conservative justice issued a stay which stopped vote counting.

Quite literally, the gavel prevailed over the ballot box.

During the last half century, the Supreme Court and other federal courts have played increasingly prominent roles in determining political questions (as in Bush v. Gore) and in making major policy decisions including desegregation, abortion, and regulating religion in government and public places.

Not surprisingly, there has been a litigation explosion in American politics and society wherein courts are regularly asked to settle personal and policy disputes.

A major political and social force, the U.S. judiciary has grown tremendously since its creation.

The Founding and the Federal Judiciary

When Antifederalists charged that the Constitution gave the judiciary too much power, Federalists countered that the judiciary was, in fact, the “least dangerous branch” of the national government.

“the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them … The judiciary … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”--Alexander Hamilton, Federalist #78

The judiciary was constructed to have a wholly different character from that of the Congress or the presidency.

In terms of judicial selection, judges and justices were to be insulated from political considerations.

Judges and justices have life terms (“during good behavior”) conducive of judicial independence.

As non-elected officials, judges and justices have more leeway to protect minority rights and interests.

Courts also have structural limitations that legislatures and executives do not.

First, traditionally, courts cannot provide general relief to constituencies; they can only provide specific relief to litigants.

A second structural limitation is that courts lack initiative; they must wait for actual cases and controversies to be brought to them by litigants with standing before they can act.

Despite these traditional limitations, the U.S. judiciary has become very influential in American politics and society.

The proper role of the U.S. judiciary is a subject of continuing controversy in American politics. During the 20th century, liberals have generally defended judicial activism while conservatives have decried it.

WHAT DO YOU THINK?

Are there too many lawsuits in contemporary America? What purpose does litigation serve? What are its costs?

Do you think contemporary courts are too powerful in American politics?

In what ways can courts be considered above politics? In what ways is it better to think of judges as legislators in robes?

The Legal System: Cases and the Law

criminal law:the branch of law that deal with disputes or actions involving criminal penalties; it regulates individual conduct, defines crimes, and provides punishment for criminal acts (e.g. U.S. v. Jones)

civil law”a system of jurisprudence, including private law and governmental actions, to settle disputes that do not involve criminal penalties (e.g., Smith v. Jones)

Review1. Standing2. Least dangerous branch3. Activism4. Strict construction v loose

construction5. Political question6. Real case rule

A third category of law, public law, involves cases where one party seeks to argue that the issues involved concern the extent of government powers and/or the rights of citizens.

Precedents:

prior cases whose principles are used by judges as the bases for their decisions in present cases

stare decisis:literally, “let the decision stand.” The doctrine that a previous decision by a court applies in similar cases until that decision is overrule

Common Law versus Appellate Law Principles and rules of interpretation developed

over centuries by Judges Appellate courts are different

Makes laws governing only the courts themselves

Halfway between common law and statutory law Judge-made law , drawing heavily on precedent Addressed NOT to citizens, but to courts – what cases

they can take, and how to render verdicts in such cases

Affects citizens by giving them a cause of action, are taking it away.

Appellate Law 2 An Example :Restrictive covenants

decided in 1948 Much civil law so constructed.

Judicial messages sent to other judges some codified into legislative enactments

The sample of liability for injuries sustained at work.

Recently similar pattern in sexual harassment cases

Appellate Law 3 Cannot “make law” but the pattern of rulings

they render they make it easier for mistreated persons to gain redress and thereby discourage the underlying behaviors.

In addressing wrongs the appellant courts can call for radical changes in legal principles.

The example of angle versus the tall and the change in the practice religion public institutions

Also notable the revolution the criminal process because of Gideon Escobedo and Miranda

Revolution in medicine representation starting with Baker v. Carr 1962.

Following the principle of stare decisis, judges’ and justices’ goals are constrained to a degree by previous court rulings.

Still, the other side of this is that when judges make precedent, they exert influence over other cases and courts.

Review1. Hamilton's take on the judiciary2. Precedent3. Stare Decisis4.Fact pattern5.Policy question v judicial questio 6.Standing7.Civil law8.Trial court9.Independence form politics10.2 reasons courts are bad at making public policies.

The Legal System:Types of Courts

Trial courts are generally the first courts to hear criminal and civil cases.

Appellate courts hear the appeals of trial court decisions.

Supreme courts (both the U. S. Supreme Court and state supreme courts) are the highest courts in a system and they usually serve appellate functions.

Insert figure 15.1 here [Figure on US Court System (it is

15.1 in text page 581 but not included in artwork I received)]

Federal JurisdictionMost cases in the federal court system are handled by district courts which have original jurisdiction over most federal matters. original jurisdiction:

the authority to initially consider a case (as distinguished from appellate jurisdiction to hear appeals).

Article III of the Constitution gives the Supreme Court original jurisdiction in cases involving foreign ambassadors or where a state is a party and has appellate jurisdiction in all federal cases.

The court of jurisdiction in other federal cases has evolved over time as Congress enacts statutes establishing the jurisdiction of lower courts.

Currently, the judiciary is divided geographically into 94 judicial districts.

These 94 district courts are then organized into 11 regional circuits plus a circuit court for the District of Columbia.

Appeals of decisions of these 12 courts of Appeals may be heard by the Supreme Court.

About 10 percent of cases in district court and federal agencies are accepted by higher courts for appeals. Court of Appeals decisions can be appealed to the Supreme Court; otherwise they are final.

There also is a federal element to judicial appeals: cases originating in state courts can be appealed to the Supreme Court.

Appellants of state court decisions may assert, for example, that they were denied due process of law or, in criminal cases, may request a writ of habeas corpus in which the state must justify its decision to detain the accused.

due process of law:

the right of every citizen against arbitrary action by national or state governments.

Writ of habeas corpus:a court order that an individual in custody be brought into court and show the cause for detention.

Appointment of JusticesArticle III of the Constitution vests the “judicial power of the United States” in the U. S. Supreme Court.

Although the Constitution does not stipulate as such, there are 9 Supreme Court justices, 8 associate justices and the chief justice.

According to the Constitution, federal justices and judges are nominated by the president and must be confirmed by the United States Senate.

Though politics dominates both the president’s decision and that of the Senate, both have important Constitutional roles to perform.

In appointing judges to lower federal courts, presidents generally seek support from the judicial nominees’ home state Senators. senatorial courtesy:

the practice whereby the president seeks the indication that senators from a judicial nominee’s own state support the nomination

Still, in recent years, the relationship between presidents and the Senate has been less than courteous when it comes to judicial appointments.

A Republican-controlled Senate delayed many of President Clinton’s judicial nominees.

After 2001, Democrats used their majority status and control of the Judiciary Committee to block several Bush appointees. After they lost the majority, minority party Democrats filibustered Bush nominees.

President Bush’s nominations of John Roberts for chief justice and Samuel Alito for associate justice both elicited Democratic opposition (more so for Alito than Roberts), though both won confirmation to the Court.

The Power of Judicial Review

If the Constitution bequeathed the Supreme Court “merely judgment,” in Marbury v. Madison (1803) the Court interpreted for itself the power of judicial review.

Judicial review commonly refers to the Court’s power to determine the constitutionality of laws passed by state legislatures or the Congress, but it also extends to the executive branch.

Although judicial review was used sparingly in the 19th century, the Supreme Court’s ability to effectively veto acts of Congress and the states is the basis for Court power in the American separation of powers system.

As Congress has increasingly delegated authority to executive branch departments and agencies, federal courts increasingly are called on to check that the executive has correctly and faithfully executed Congress’s intent.

Since its 1984 decision in Chevron v. National Resource Defense Council, the Supreme Court has increasingly deferred to executive branch interpretations of statutes except where Congress’s intent and legislative language are exceedingly clear.

Presidential use of power is also subject to judicial review.

President Bush’s antiterrorism initiatives and extraordinary claims of presidential powers have elicited judicial challenges in the Supreme Court.

For example, in Hamdi v. Rumsfeld, while upholding the president’s essential claims to power, the Supreme Court did assert the right of the judiciary to review and potentially constrain presidential power.

The Court in ActionBoth the increasing power and expanding jurisdiction of the federal judiciary have made the management of the judicial process a central problem for justices and judges.

How is the Court’s agenda determined?

First, Courts must establish and maintain standards of access to the judiciary.

Parties must have standing to sue and cases must involve an actual and, more or less, current controversy; that is, cases cannot be moot.

Standing:

the right of an individual or organization to initiate a court case, on the basis of their having a substantial stake in the outcome Mootness:

a criterion used by courts to screen cases that no longer require resolution

The Supreme Court must also decide which cases are important enough for it to hear.

The Supreme Court sets most of its agenda by issuing writs of certiorari by which 4 of the 9 justices vote to review a lower court’s decision.

Insert Figure 15.3 here

Insert figure 15.4 here

Another important influence on the Supreme Court’s agenda is the solicitor general, the government’s top lawyer who screens which cases the government will appeal to the Supreme Court.

More than half of the Supreme Court’s workload consists of cases under the direct charge of the solicitor general.

Litigants before the Court prepare written briefs and make oral arguments before the justices.

Outside groups might also submit amicus curiae (“friends of the court”) briefs in an attempt to weigh in on the decision.

After argument, Supreme Court justices meet in conference to discuss the case and vote.

Once they have voted, justices write opinions explaining their legal reasoning.

In most cases, the Supreme Court issues a majority opinion that is controlling.

In rarer instances, no majority may emerge and justices write a plurality opinion.

Justices who disagree with the judgment of the majority often offer dissenting opinions.

Justices who agree with the ultimate conclusion but for different reasons might write a concurring opinion.

Although majority opinions are controlling and become precedents, the legal reasoning set forth in concurrences and dissents are important and may, in a later case, achieve majority support and become the law of the land.

For example, the reasoning in an important dissent in Plessy v. Ferguson was affirmed a half century later in Brown v. Board of Education.

Judicial Power and Politics

Although the federal judiciary was reputed to be the “least dangerous branch,” in the 20th century, the U.S. judiciary overcame several traditional limitations to become what some have complained is an imperial judiciary.

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Traditional Limitations on Federal CourtsGeneral

restraints

limited in the

character of relief they

could provide

Courts lacked enforcement

• Cannot exercise initiative• The rules of standing also limit the courts

• Had the additional consequence of limiting the courts ability to forge links with political and social forces

• Relief to individuals, not broad social classes• limiting the courts ability to forge links with political and social

forces

• Depended on executive agencies

Federal Judges are appointed

• President and Congress can shape the composition of the federal courts over time.

• Congress controls the size and jurisdiction of federal courts• Courts obtain jurisdiction from constitutional statutes.

Result: through much of history the chief function the federal courts has been to provide user support for executive agencies legitimate acts of Congress

Two Judicial Revolutions

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Substantive Revolution: this refers to the court’s intervention and policy areassuch as school desegregation, legislative apportionment, and criminal procedure

Additionally: obscenity law, abortion law, and voting rights law all were fundamentally transformed by court decisions

Procedural revolution:1. liberalization of standing to permit almost any group to challenge the actions of administrative agency2. Congress agent this by adopting section 1983 of the US code – fee shifting

this had the impact of moving more and more political controversies into the courts.

3. the creation of the class-action suit4. the employment of structural remedies = retaining jurisdiction of the case until the courts mandate action implemented to its satisfaction

Expanded Notes: JR and PP Hamdi v Rumsfeld

US citizen – can rebut factual assertions President can declare a US Citizen an “enemy

combatant” Can be tried before Military Tribunal

Hamdan v Rumsfeld Tribunal rules violated federal law and treaties Congress rewrote law: Military Commissions

Act Could NOT seek habeas corpus relief (Sec 7) Boumediene v Bush – struck down this part of law

“the judiciary is beyond comparison the weakest of

the three departments of power.” --Alexander Hamilton, Federalist #78

Judicial power is comparatively weak:1. The judiciary lacks the capacity to enforce its

decisions.2. Insulated from political forces, the judiciary lacks

“will.”

Structural changes in the judiciary alleviated some of the traditional limitations on court power.

1. By liberalizing standing, the right to sue, the federal courts have expanded the range of potential cases that can be decided.

2. The Court achieved greater control over its agenda in 1925 when the “Judges Bill” passed by Congress gave justices more discretion about whose cases they would and would not take.

3. The increased use of class action lawsuits has

allowed the judiciary to provide generalized relief to groups enhancing, in some respects, its ties to key groups and constituencies.

4. Finally, justices and judges themselves have felt freer to pursue their own political agendas, and so they are less constrained by the prior belief that the Court should be apolitical.

The Lochner Decision Peckham and his fellow Justices reached the conclusion that the New York law was

not related "in any real and substantial degree to the health of the employees." Consequently, they held that the New York law was not a valid exercise of the state's police powers. Lochner's conviction was accordingly vacated.

The power of the courts to review legislative action in respect of a matter affecting the general welfare exists only "when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.“

The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.... Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

WHAT DO YOU THINK?

Did the Supreme Court seize too much power by claiming for itself the power of judicial review?

What is the value of stare decisis? How does it benefit U.S. law? How does it legitimate courts as decision-making institutions?

In what ways has the contemporary judiciary become imperial?

Clicker QuestionsCases of _________ law are those in which

the government charges an individual with violating a statute that has been enacted to protect the public health, safety, morals, or welfare.

A. CriminalB. CivilC. PublicD. All of the above

Clicker QuestionsWhich of the following is not a case in which

the federal courts would have jurisdiction?

A. A case in which the U.S. government is a party

B. A case involving a treaty with another nation

C. A case involving burglary of a houseD. A case involving federal laws

Clicker QuestionsThe country is divided into ____________

regional judicial circuits, each of which has a U.S. Court of Appeals.

A. 12B. 50C. 94D. 112

Clicker QuestionsParties in a case must show __________; that

is, they must show that they have a substantial stake in the outcome of a case.

A. MootnessB. StandingC. Cases and controversiesD. All of the above

Clicker QuestionsJustices who disagree with the majority

decision of the Court may choose to publicize the character of their disagreement in the form of a:

A. Concurring opinionB. Dissenting opinionC. Non-consensus opinionD. Disagreeing opinion