You are on page 1of 34

Chapter Sixteen

The Judiciary

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.
Key Questions and Objectives of
Judiciary Chapter
1. Explain what judicial review is and trace its origins.
2. List and comment on the three eras of varying Supreme Court
influences on national policy.
QuickTime™ and a
3. ExplainTIFF
what(Uncompressed)
is meant by a dualdecompressor
court system and describe its
are needed to see this picture.
effects on how cases are processed, decided, and appealed.
4. List the various steps that cases go through to reach the Supreme
Court and explain the considerations involved at each step.
5. Discuss the dimensions of power exercised today by the Supreme
Court and the opposing viewpoints on an activist Supreme Court.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 2


THEME A: THE HISTORY OF THE FEDERAL JUDICIARY

Judicial Review
• Judicial review: the right of the federal
QuickTime™ and a
courtsTIFF
to rule on the constitutionality
(Uncompressed) decompressor of laws
are needed to see this picture.
and executive actions
• It is the chief judicial weapon in the checks
and balances system

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 3


U.S. District and Appellate Courts

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

Administrative Office of the United States Courts (January 1983).

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 4


Constitutional Interpretation
• Strict construction: judges are bound by the wording
of the Constitution
• Activist: judges should look to the underlying principles
of the Constitution
• Today,TIFF strictQuickTime™
most(Uncompressed) and a tend to be
constructionists
decompressor
conservative, most activists
are needed to see thistend to be liberal
picture.
• Activist vs. Strict Constructionists
• Issue: Gay Marriage
• The Debate in Massachusetts
• Seperation of Powers Legislature vs. Governor vs
. Judiciary

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 5


Maps of US on each State’s Approach to
Gay Marriage

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 6


Development of the Federal Courts

• Most Founders probably expected judicial


review but did not expect the federal courts
to play such a large role
QuickTime™ and a
TIFF (Uncompressed) in policy-making
decompressor
are needed to see this picture.
• But the federal judiciary evolved toward
judicial activism, shaped by political,
economic, and ideological forces

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 7


National Supremacy

• Marbury v. Madison (1803): The Supreme Court


could declare a congressional act
unconstitutionalQuickTime™ and a
TIFF (Uncompressed) decompressor
• Marbury are
vs.needed
Madison
to seeexcerpt from PBS
this picture.

• McCulloch v. Maryland (1819): The power


granted to federal government should be
construed broadly, and federal law is supreme
over state law
• Student film on McCulloch v. Maryland inspired b
y Final Fantasy
Copyright © Houghton Mifflin Company. All rights reserved. 16 | 8
1865 to 1936

• The Supreme Court was supportive of private


property, but could not develop a principle
distinguishing between reasonable and
QuickTime™ and a
unreasonable
TIFF (Uncompressed)of
regulation business
decompressor
• The Courtare needed to see this picture.
interpreted the Fourteenth and Fifteenth
amendments narrowly as applied to blacks—it
upheld segregation, excluded blacks from voting in
many states
• Court repudiates segregation in Brown v. Board of
Education and the Little Rock 9.
• Desegregation riots in South Boston.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 9


1936 to Present

• The Court establishes tradition of deferring to the


legislature in economic regulation cases
• The Warren Court provided
QuickTime™ anda aliberal protection of
TIFF (Uncompressed) decompressor
rights andareliberties
needed toagainst government trespass
see this picture.

• Roe v. Wade 2
• Today’s Backlash: Justice Sunday
• A middle ground

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 10


Selecting Judges

• Party background has a strong effect on


judicial behavior
QuickTime™ and a
• Appointees for federal
TIFF (Uncompressed) courts
decompressorare reviewed
are needed to see this picture.
by senators from that state, if the senators
are of the president’s party (particularly for
U.S. district courts)

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 11


Selecting Judges

• Presidents seek judicial appointees who share


their political ideologies
QuickTime™ and a
TIFF (Uncompressed) decompressor
• This raisesare concerns that
needed to see this ideological
picture. tests are too
dominant, and has caused delays in securing
Senate confirmations
• Reagan decides who to appoint to Supreme Cour
t
• President Bush’s nominates Judge Samuel Alito

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 12


Table 14.2: How Partisanship Affects
Judicial Attitudes

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 13


Figure 16.1: Female and Minority Judicial
Appointments, 1963-2003

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics,
2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 14


Figure 16.1: Female and Minority Judicial
Appointments, 1963-2003

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004
(Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 15


Figure 16.1: Female and Minority Judicial
Appointments, 1963-2003

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington,
D.C.: Congressional Quarterly, 2003), table 7.5.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 16


Discussion Questions for Theme A

1. What problems did the Court have in trying to limit economic


regulation in the era between the Civil War and the New Deal?

2. What was TIFF QuickTime™


the Roosevelt court-packingandplan?
a What does it suggest
(Uncompressed) decompressor
about the relationship between
are needed to see the
thisSupreme
picture. Court and the other
branches of government?

3. How would one distinguish successful from unsuccessful assertions


of judicial power? What is it that puts Marbury in one class and Dred
Scott in another?

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 17


THEME B: THE SUPREME COURT IN ACTION)

Federal Cases
• Federal question cases:
QuickTime™ and involving
a the
TIFF (Uncompressed) decompressor
U.S. Constitution, federal
are needed to see law, or treaties
this picture.

• Diversity cases: involving different states,


or citizens of different states

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 18


Federal Cases

• Some cases that begin in state courts can


be appealed to the Supreme Court
QuickTime™ and a
• Controversies between
TIFF (Uncompressed) two
decompressorstate
are needed to see this picture.
governments can only be heard by the
Supreme Court

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 19


Figure 14.2: The Jurisdiction of the Federal Courts

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 20


Writs of Certiorari

• Requires agreement of four justices to hear


the case
• Involves significant federal
QuickTime™ and a or constitutional
TIFF (Uncompressed) decompressor
questionare needed to see this picture.
• Involves conflicting decisions by circuit
courts
• Involves Constitutional interpretation by
one of the highest state courts

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 21


Standing to Sue

• There must be a real controversy between


adversaries
• Personal harm must
QuickTime™ be demonstrated
and a
TIFF (Uncompressed) decompressor
• Being a are needed to see this picture.
taxpayer does not ordinarily
constitute entitlement to challenge federal
government action; this requirement is
relaxed when the First Amendment is
involved

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 22


The Supreme Court in Action

• Most cases arrive through a writ of certiorari


• Lawyers then submit briefs that set forth the facts
of the case, summarizes
QuickTime™ the
andlower
a
TIFF (Uncompressed) decompressor
court decision,
gives theare
argument of that
needed to see side of the case, and
this picture.

discusses other issues


• Oral arguments are given by lawyers after briefs
are submitted
• Example: Oral Arguments before Court on Roe v
Wade

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 23


Kinds of Court Opinions

• Per curiam: brief and unsigned


• Opinion of the court: majority opinion
QuickTime™ and a
• Concurring opinion:
to see thisagrees
TIFF (Uncompressed) decompressor
are needed picture. with the ruling
of the majority opinion, but modifies the
supportive reasoning
• Dissenting opinion: minority opinion

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 24


Discussion Questions for Theme B

1. The Theme Summary describes several of the practices


and rituals of the Supreme Court. Based on the
Summary, how would you describe the culture of this
institution? In what ways areand
QuickTime™ its afolkways (and thus its
TIFF (Uncompressed) decompressor
culture) similar to or
are needed to different from the other branches
see this picture.
of the government?
2. In what respects is the Supreme Court a political
institution? Think carefully about how you are
defining political in answering this question.

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 25


3. What are the reasons for a greater number of concurring and
dissenting opinions in the Court decisions of recent decades?
What are the advantages and disadvantages of such outcomes?
How do these opinions affect the relationships among the
justices?
4. The role of the clerks of the Court is extremely powerful: clerks
are the Court’s “agenda setters” in some important ways: they
review all incomingQuickTime™
petitions, provide
and aresearch to the justices,
TIFF (Uncompressed) decompressor
and write drafts of the opinions.
are needed to see thisMost clerks are fresh out of an
picture.
exclusive law school, are highly motivated by career, and are
very intelligent. They generally share the philosophy of the
justice they are clerking for, and they will hold this position for
only one year. Is this an appropriate way for the Court to
manage its workload? What are the advantages and
disadvantages of this system?

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 26


THEME C: THE POWER OF THE FEDERAL JUDICIARY

Arguments for Judicial Activism


• Courts shouldQuickTime™
correct injustices
and a when other
TIFF (Uncompressed) decompressor
branchesare or state
needed governments
to see this picture. refuse to do
so
• Courts are the last resort for those without
the power or influence to gain new laws

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 27


Arguments Against Judicial Activism

• Judges lack expertise in designing and


managing complex institutions
QuickTime™ and a
• Initiatives require balancing
TIFF (Uncompressed) decompressorpolicy priorities
are needed to see this picture.
and allocating public revenues
• Courts are not accountable because judges
are not elected

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 28


Checks on Judicial Power

• Judges have no enforcement mechanisms


• Confirmation and impeachment proceedings
• Justice Alito onQuickTime™
the Bork confirmation
and a hearing
TIFF (Uncompressed) decompressor
• Changingarethe number
needed to see of
thisjudges
picture.

• FDR Court Packing Scheme


• Revising legislation
• Amending the Constitution
• Altering jurisdiction
• Restricting remedies

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 29


Public Opinion and the Courts

• Defying public opinion frontally may be


dangerous to the legitimacy of the Supreme
Court, especially elite opinion
QuickTime™ and a
• Bush v. Gore
TIFF and the
(Uncompressed) 2000 Election (Mr. Banno
decompressor
are needed to see this picture.
video)
• Opinion in realigning eras may energize court
• Public confidence in the Supreme Court since
1966 has varied with popular support for the
government generally

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 30


Figure 14.3: Patterns of Public Confidence
in the Court

QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.

• Source: Updated from The Gallup Poll: Public


Opinion 1991 (Wilmington, Del.: Scholarly
Resources, Inc., 1992), 213.
Copyright © Houghton Mifflin Company. All rights reserved. 16 | 31
Discussion Questions for Theme C

1.Why do presidents give careful thought to the


political views of prospective judicial
nominees? Isn’t legal competence
QuickTime™ and a more
important?
TIFF (Uncompressed) decompressor
are needed to see this picture.

2.What kinds (and how many) resources are


required to bring a case to the Supreme Court?
Is the judicial system more accessible than the
legislative or executive branches?

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 32


3.What sorts of legal doctrines or principles will
an activist judge favor?
4.Is the judiciary still the “least dangerous”
branch?
QuickTime™ and a
5.What are the checks on the power of the
TIFF (Uncompressed) decompressor
are needed to see this picture.
judiciary? Are they potent and easily invoked,
or weak and difficult to invoke? Why haven’t
unpopular decisions, such as those on busing
and school prayer, been overturned?

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 33


Wrap Up

1. 31W

QuickTime™ and a
2. Key Ideas from Supplemental Readings
TIFF (Uncompressed) decompressor
are needed to see this picture.

3. The Capitol Steps


keep the Supreme Court ALIVE!

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 34

You might also like