wilson judiciary
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Chapter Sixteen
The Judiciary
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Qui i
i i ure.
C yrig H ug Miffli C y. All rig reserved. 16 | 2
Key Questi s and Objectives of
JudiciaryC apter
1. Explain what judicial review is and trace its origins.
2. List and comment on the three eras of varying Supreme Courtinfluences on national policy.
3. Explain what is meant by a dual court system and describe itseffects on how cases are processed, decided, and appealed.
4. List the various steps that cases go through to reach theSupreme 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 activistSupreme Court.
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Judicial Review
Judicial review: the right ofthe federal
courts to rule on the constitutionality oflawsand executive actions
It is the chiefjudicial weapon in the checks
and balances system
THEME A: THE HISTORYOFTHE FEDERAL JUDICIARY
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U.S. District and Appellate Courts
Administrative Office ofthe United States Courts (January 1983).
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Constitutional Interpretation
Strict construction: judges are bound by thewording ofthe Constitution
Activist: judges should look to the underlyingprinciples ofthe Constitution
Today, most strict constructionists tend to beconservative, most activists tend to be liberal
Activist vs. Strict Constructionists
Issue: GayMarriage
The Debate in Massachusetts
Seperation ofPowers Legislature vs. Governorvs. Judiciary
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Maps ofUS on each States Approach to
GayMarriage
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Development ofthe FederalCourts
Most Founders probably expected judicial
review but did not expect the federal courts
to play such a large role in policy-making But the federal judiciary evolved toward
judicial activism, shaped by political,
economic, and ideologicalforces
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NationalSupremacy
Marburyv. Madison (1803): The Supreme Court
could declare a congressional act
unconstitutional
Marbury vs. Madison excerpt from PBS
McCulloch v. Maryland(1819): The power
granted to federalgovernment should be
construed broadly, and federallaw is supremeover state law
Student film on McCulloch v. Maryland inspired
by Final Fantasy
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1865 to 1936
The Supreme Court was supportive ofprivateproperty, but could not develop a principledistinguishing between reasonable and
unreasonable regulation ofbusiness The Court interpreted the Fourteenth and
Fifteenth amendments narrowly as applied toblacksit upheld segregation, excluded blacks
from votingin many states Court repudiates segregation in Brown v. Board
ofEducation and the Little Rock 9.
Desegregation riots in South Boston.
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1936 to Present
The Court establishes tradition ofdeferring to the
legislature in economic regulation cases
The Warren Court provided a liberal protection ofrights and liberties against government trespass
Roe v. Wade 2
Todays Backlash: Justice Sunday
A middle ground
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SelectingJudges
Party background has a strong effect on
judicial behavior
Appointees forfederal courts are reviewedby senators from that state,ifthe senators
are ofthe presidents party (particularlyfor
U.S. district courts)
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SelectingJudges
Presidents seek judicial appointees who share
their politicalideologies
This raises concerns that ideological tests are too
dominant, and has caused delays in securing
Senate confirmations
Reagan decides who to appoint to SupremeCourt
President Bushs nominates Judge Samuel Alito
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Table 14.2: How Partisanship Affects
Judicial Attitudes
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Figure 16.1: Female and MinorityJudicial
Appointments, 1963-2003
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.
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Figure 16.1: Female and MinorityJudicial
Appointments, 1963-2003
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.
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Figure 16.1: Female and MinorityJudicial
Appointments, 1963-2003
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.
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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 the Roosevelt court-packing plan? What does it suggestabout the relationship between the Supreme Court and the other
branches of government?
3.H
ow would one distinguish successful from unsuccessful assertionsof judicial power? What is it that putsMarbury in one class andDred
Scottin another?
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FederalCases
Federal question cases: involving the
U.S. Constitution,federallaw, or treaties
Diversity cases: involving different states,
or citizens ofdifferent states
THEME B: THE SUPREME COURTIN ACTION)
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FederalCases
Some cases that begin in state courts can
be appealed to the Supreme Court
Controversies between two stategovernments can only be heard by the
Supreme Court
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Figure 14.2: The Jurisdiction ofthe FederalCourts
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Writs ofCertiorari
Requires agreement offour justices to hearthe case
Involves significant federal or constitutionalquestion
Involves conflicting decisions by circuitcourts
Involves Constitutionalinterpretation byone ofthe highest state courts
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Standing to Sue
There must be a real controversy betweenadversaries
Personal harm must be demonstrated Being a taxpayer does not ordinarily
constitute entitlement to challenge federalgovernment action; this requirement is
relaxed when the First Amendment isinvolved
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The Supreme Court in Action
Most cases arrive through a writ ofcertiorari
Lawyers then submit briefs that set forth the facts
ofthe case, summarizes the lower court decision,gives the argument ofthat side ofthe case, and
discusses otherissues
Oral arguments are given bylawyers after briefs
are submitted Example: Oral Arguments before Court on Roe v
Wade
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Kinds ofCourt Opinions
Per curiam: briefand unsigned
Opinion ofthe court: aj rity pini n
Concurring opinion: agree with the rulingf the aj rity pini n, but difie the
upp rtive rea ning
Dissenting opinion: in rity pini n
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Discussion Questions for Theme B
1. The Theme Summary describes several of thepractices and rituals of the Supreme Court. Based onthe Summary, how would you describe the culture ofthis institution? In what ways are its folkways (andthus its culture) similar to or different from the otherbranches of the government?
2. In what respects is the Supreme Court a politicalinstitution? Think carefully about how you aredefining politicalin answering this question.
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3. What are the reasons for a greater number of concurring anddissenting 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 thejustices?
4. The role of the clerks of the Court is extremely powerful: clerksare the Courts agenda setters in some important ways: theyreview all incoming petitions, provide research to the justices,and write drafts of the opinions. Most clerks are fresh out of anexclusive law school, are highly motivated by career, and arevery intelligent. They generally share the philosophy of the
justice they are clerking for, and they will hold this position foronly one year. Is this an appropriate way for the Court tomanage its workload? What are the advantages anddisadvantages of this system?
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Arguments forJudicial Activism
Courts should correct injustices when other
branches or state governments refuse to do
so
Courts are the last resort for those without
the power orinfluence to gain new laws
THEME C: THE POWEROFTHE FEDERAL JUDICIARY
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Arguments Against Judicial Activism
Judges lack expertise in designing and
managing complexinstitutions
Initiatives require balancing policy prioritiesand allocating public revenues
Courts are not accountable because judges
are not elected
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Checks on Judicial Power
Judges have no enforcement mechanisms
Confirmation and impeachment proceedings
Justice Alito on the Bork confirmation hearing
Changing the number ofjudges
FDR Court PackingScheme
Revisinglegislation
Amending the Constitution Altering jurisdiction
Restricting remedies
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Public Opinion and the Courts
Defying public opinion frontally may bedangerous to the legitimacy ofthe SupremeCourt, especially elite opinion
Bush v. Gore and the 2000 Election (Mr. Bannovideo)
Opinion in realigning eras may energize court
Public confidence in the Supreme Court since
1966 has varied with popular support for thegovernment generally
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Figure 14.3: Patterns ofPublic Confidence
in the Court
Source: Updated from The Gallup Poll: PublicOpinion 1991 (Wilmington, Del.: Scholarly
Resources, Inc., 1992), 213.
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Discussion Questions for Theme C
1.Why do presidents give careful thought to thepolitical views of prospective judicialnominees? Isnt legal competence more
important?
2.What kinds (and how many) resources arerequired to bring a case to the Supreme Court?
Is the judicial system more accessible than thelegislative or executive branches?
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3.What sorts of legal doctrines or principles will
an activist judge favor?
4.Is the judiciary still the least dangerous
branch?
5.What are the checks on the power of thejudiciary? Are they potent and easily invoked,
or weak and difficult to invoke? Why havent
unpopular decisions, such as those on busing
and school prayer, been overturned?
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Wrap Up
1. 31W
2. Key Ideas from Supplemental Readings
3. The CapitolSteps keep the SupremeCourt ALIVE!