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The CourtsThe Courts

Frank BrooksFrank Brooks

22Introduction to American PoliticsIntroduction to American Politics

Courts’ Function: AdjudicationCourts’ Function: Adjudication

To “judge”To “judge” Whether and how the law applies to a particular Whether and how the law applies to a particular

situation and what to do about itsituation and what to do about it Judge whether/which law has been brokenJudge whether/which law has been broken Interpret the meaning of the lawInterpret the meaning of the law Determine fault (who? to what extent?)Determine fault (who? to what extent?) Assign punishment or resolve disputeAssign punishment or resolve dispute

Political impact of courtsPolitical impact of courts Immediate impact on individuals, small groupsImmediate impact on individuals, small groups Controversy intrinsic, especially at higher levelsControversy intrinsic, especially at higher levels ““rule of law” and “equality under the law”rule of law” and “equality under the law”

33Introduction to American PoliticsIntroduction to American Politics

Least Dangerous Branch?Least Dangerous Branch?How Powerful are the Courts?How Powerful are the Courts?Designed to be the weakest branchDesigned to be the weakest branch

Hamilton (Federalist #78): Hamilton (Federalist #78): "The judiciary . . . has no influence over either the sword or "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 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 active resolution whatever. It may truly be said to have neither FORCE NOR WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm for the merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty."efficacious exercise even of this faculty."

Direct impact very limitedDirect impact very limited

Too much court power?Too much court power? ““Making law” rather than applying or interpretingMaking law” rather than applying or interpreting Decisions based on politics (partisanship, ideology, interests) rather than Decisions based on politics (partisanship, ideology, interests) rather than

LAWLAW

Accountability: elite body, anti-democraticAccountability: elite body, anti-democraticResponsesResponses

Sentencing guidelinesSentencing guidelines Philosophies of judicial decision-makingPhilosophies of judicial decision-making Appointment battlesAppointment battles

44Introduction to American PoliticsIntroduction to American Politics

The Courts as Policy-MakersThe Courts as Policy-Makers

Scope of impactScope of impact Immediate impact at lowest level when law is “applied”Immediate impact at lowest level when law is “applied” Broader impact in appeals courts when law is interpretedBroader impact in appeals courts when law is interpreted

Federal appeals courts have broad scope for Federal appeals courts have broad scope for interpretationinterpretation because of Constitutionbecause of Constitution

““inspired ambiguity”inspired ambiguity” Interpretation necessary, so playing politics possibleInterpretation necessary, so playing politics possible Judicial review as most obvious exampleJudicial review as most obvious example

Setting remedies as “making policy”Setting remedies as “making policy” Scope of punishment/damagesScope of punishment/damages Attempts to prevent/deter future problemsAttempts to prevent/deter future problems

LimitationsLimitations Facts of the caseFacts of the case Precedent and case lawPrecedent and case law Political reputationPolitical reputation

55Introduction to American PoliticsIntroduction to American Politics

The Supreme Court’s PowerThe Supreme Court’s Power

Grounded in reputation as authoritative Grounded in reputation as authoritative interpreters of the law and the Constitutioninterpreters of the law and the Constitution Expected to interpret, but law’s meaning and political Expected to interpret, but law’s meaning and political

context change over time (hence situational)context change over time (hence situational) The highest The highest authorityauthority for interpretation for interpretation Reputation, i.e. also relationalReputation, i.e. also relational

Key relations (audiences for decisions)Key relations (audiences for decisions) Congress and the PresidentCongress and the President Judges and legal communityJudges and legal community Public opinion, mediaPublic opinion, media

66Introduction to American PoliticsIntroduction to American Politics

Philosophies of JudicialPhilosophies of JudicialDecision-MakingDecision-Making

How should the law and the Constitution be interpreted?How should the law and the Constitution be interpreted?

Strict ConstructionStrict Construction Narrow – focus on the wording, don’t “read into” the textNarrow – focus on the wording, don’t “read into” the text Defer to the understanding of legislators who wrote the lawDefer to the understanding of legislators who wrote the law Can refer to “original intent”Can refer to “original intent”

Judicial ActivismJudicial Activism Times change, so meaning of law should tooTimes change, so meaning of law should too Elected officials can violate law and ConstitutionElected officials can violate law and Constitution Wording often vague – needs interpretive frameworkWording often vague – needs interpretive framework

77Introduction to American PoliticsIntroduction to American Politics

Increasing (Political) Role of CourtsIncreasing (Political) Role of Courts

Rules of access loosenedRules of access loosened

More laws to interpretMore laws to interpret

More lawyers to push disputes into courtMore lawyers to push disputes into court

Increasing complexity of society and economyIncreasing complexity of society and economy

Greater use of legal strategies by interest Greater use of legal strategies by interest groupsgroups

Congress and bureaucracy increasingly seen as Congress and bureaucracy increasingly seen as unresponsive (or responsive to “wrong” unresponsive (or responsive to “wrong” interests)interests)