Judiciary Part 2

The Judiciary (Part II)The Judiciary (Part II)

Michael P. FixMichael P. Fix

Dual Court SystemDual Court System

Because of the Dual Court System in Because of the Dual Court System in the U.S. each of the 50 states has its the U.S. each of the 50 states has its own unique judicial system.own unique judicial system.

Many basic features in the federal Many basic features in the federal system are present in most – or all – system are present in most – or all – of the states.of the states.

Yet, there are many important Yet, there are many important differences.differences.

Dual Court SystemDual Court System

Four methods of judicial selection in the states:

1. Partisan elections2. Nonpartisan elections3. Merit selection4. Gubernatorial or

legislative appointment

Judicial ElectionsJudicial Elections

31 states select at least 31 states select at least some of their judges some of their judges through elections.through elections.

Cost of a Seat on the Texas Cost of a Seat on the Texas Supreme CourtSupreme Court

From tjp.org (Texans for Public Justice)

Why Elect Judges?Why Elect Judges?

AccountabilityAccountability

Democratic ValuesDemocratic Values

Why Oppose Judicial Elections?Why Oppose Judicial Elections?

Harms judicial independenceHarms judicial independence

$$$$$$

PoliticsPolitics

Do the most qualified people pass up Do the most qualified people pass up the job?the job?

Judicial ElectionsJudicial Elections

What do you think?

Judicial ReviewJudicial Review

The power of a court to review The power of a court to review governmental actions to governmental actions to

determine their determine their ConstitutionalityConstitutionality

Judicial ReviewJudicial Review

Marbury v. Madison (1803)Marbury v. Madison (1803)

From wikipedia.org

Judicial Review TodayJudicial Review Today

It is still use primarily against It is still use primarily against

state laws, but . . . state laws, but . . .


One important area where the U.S. One important area where the U.S. Supreme Court has utilized judicial Supreme Court has utilized judicial review against actions of the Federal review against actions of the Federal government:government:

Presidential authorityPresidential authority


The Court has The Court has only only exercised its exercised its power of power of judicial judicial review of review of presidential presidential actions a actions a handful of handful of times since times since its inception. its inception.

Jones v. Clinton (1997)


Hamdi v. Rumsfeld (2004)

Evading Judicial ReviewEvading Judicial Review

From www.inthesetimes.com

How do Judges Make Decisions?

The Legal ModelThe Legal Model

Only the Law matters in judicial Only the Law matters in judicial decision making.decision making.

From www.harvardlodge.com From www.fisher-price.com

The Attitudinal ModelThe Attitudinal Model

From www.Amazon.com

Theory that judges decide cases based solely on their personal policy preferences.

The Rational Choice ModelThe Rational Choice Model

Judges are Judges are rational-actors rational-actors who consider who consider their goals and their goals and external costs external costs when making when making decisions.decisions.

From library.thinkquest.org

Implementation and ImpactImplementation and Impact

Courts do not Courts do not have the have the power of the power of the “sword,” so “sword,” so they must they must depend on depend on others to others to implement implement their decisions.their decisions.

Implementation and ImpactImplementation and Impact

Many actors are responsible for translating Many actors are responsible for translating court rulings into real-world applications.court rulings into real-world applications.

From www.pon.harvard.edu, www.hamburgeramerica.com, www.fbi.gov, www.cartoonstock.com

Courts as a Pathway for Courts as a Pathway for Social ChangeSocial Change

Interest Group LitigationInterest Group Litigation

More attractive to smaller interest More attractive to smaller interest groups because it takes fewer groups because it takes fewer resources than other pathwaysresources than other pathways

Requires:Requires: Litigation resourcesLitigation resources ExpertiseExpertise PatiencePatience


NAACP began NAACP began litigation in the litigation in the 1930s to end 1930s to end segregationsegregation

Succeeded in Succeeded in 1964 with 1964 with Brown Brown v. Board of v. Board of EducationEducation


ACLU Women’s ACLU Women’s Rights Project Rights Project worked to expand worked to expand rights for women.rights for women.

Got the Supreme Got the Supreme Court to broaden Court to broaden the 14th the 14th Amendment’s Equal Amendment’s Equal Protection clause to Protection clause to include some types include some types of gender of gender discriminationdiscrimination

Strategy in Interest Group LitigationStrategy in Interest Group Litigation

Selection of CasesSelection of Cases

Choice of JurisdictionChoice of Jurisdiction

Framing the ArgumentsFraming the Arguments

Public Relations and the Political Public Relations and the Political

EnvironmentEnvironment

Can Courts Bring About Social Can Courts Bring About Social Change?Change?

Some scholars argue that courts have no power to fundamentally alter society.

Judicial ActivismJudicial Activism

When a judge replaces the When a judge replaces the views of the legislature views of the legislature with their own views.with their own views.

Does judicial review equal judicial activism?


Do liberal judges Do liberal judges engage in judicial engage in judicial activism more activism more than their than their conservative conservative counterparts?counterparts?

From cfic.org


Other views:Other views: Black’s Law DictionaryBlack’s Law Dictionary – “a philosophy – “a philosophy

of judicial decision-making whereby of judicial decision-making whereby judges allow their personal views about judges allow their personal views about public policy, among other factors, to public policy, among other factors, to guide their decisions, usu. with the guide their decisions, usu. with the suggestion that adherents of this suggestion that adherents of this philosophy tend to find constitutional philosophy tend to find constitutional violations and are willing to ignore violations and are willing to ignore precedent.“precedent.“

Justice Sandra Day O’ConnorJustice Sandra Day O’Connor


Other views continued:Other views continued: Justice Antonin Scalia - "What I am Justice Antonin Scalia - "What I am

questioning is the propriety, indeed the questioning is the propriety, indeed the sanity, of having value-laden decisions sanity, of having value-laden decisions such as these [capital punishment, such as these [capital punishment, abortion, physician-assisted suicide] abortion, physician-assisted suicide] made for the entire society . . . by made for the entire society . . . by judges," judges,"

Judicial Self-RestraintJudicial Self-Restraint

Judicial Deference to Judicial Deference to Congress and the Congress and the

PresidentPresident

Judiciary Part 2

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Transcript of Judiciary Part 2