Chapter 16Chapter 16The JudiciaryThe Judiciary
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WHO GOVERNS?WHO GOVERNS?1.1. Why should federal judges serve for Why should federal judges serve for
life?life? TO WHAT ENDS?TO WHAT ENDS?
1.1. Why should federal courts be able to Why should federal courts be able to declare laws unconstitutional?declare laws unconstitutional?
2.2. Should federal judges only interpret Should federal judges only interpret existing laws or should they be able to existing laws or should they be able to create new laws?create new laws?
http://www.youtube.com/watch?v=sD5PIeGt8is
Warm-up President Obama ponders choice for
US Supreme Court http://www.youtube.com/watch?v=s
D5PIeGt8is
OverviewOverview
Judicial Review Judicial Review – – the power of courts to the power of courts to declare laws unconstitutionaldeclare laws unconstitutional
Judicial Restraint Approach Judicial Restraint Approach – judges – judges should decide cases strictly on the basis of should decide cases strictly on the basis of the language of the Constitutionthe language of the Constitution
Activist Approach – Activist Approach – judges should judges should discern the general principles underlying discern the general principles underlying the Constitution and apply them to the Constitution and apply them to modern circumstancesmodern circumstances
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The Development of the Federal The Development of the Federal CourtsCourts
National Supremacy and SlaveryNational Supremacy and Slavery• Marbury v Madison Marbury v Madison (1803)(1803)upheld upheld
judicial review of congressional actsjudicial review of congressional acts• McCulloch v MarylandMcCulloch v Maryland (1819) (1819)federal federal
bank “necessary and proper” even bank “necessary and proper” even though not mentioned in Constitutionthough not mentioned in Constitution
• Dred Scot Dred Scot decision (1857)decision (1857)blacks not US blacks not US citizenscitizens
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Government and Economy
John Marshalest. supremacy of federal government
1880s mainly used to protect private property
Government and political liberty
1937-1974 did not overturn a single federal law designed to regulate business but did not overturn any laws that violated personal political liberties
Revival of state sovereignty
1992 to present States have right to resist some
forms of federal action/limits federal supremacy
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Roger B. Taney, chief justice from 1836 to 1864, wrote the Roger B. Taney, chief justice from 1836 to 1864, wrote the Dred Scott Dred Scott decision, which asserted that blacks were not citizens of the United decision, which asserted that blacks were not citizens of the United States. Dred Scott claimed that when his master brought him north to States. Dred Scott claimed that when his master brought him north to a free state, he ceased to be a slave. The public outcry against the a free state, he ceased to be a slave. The public outcry against the decision was intense, at least in the North, as is evident from this decision was intense, at least in the North, as is evident from this poster announcing a mass meeting “to consider the atrociousposter announcing a mass meeting “to consider the atrociousdecision.” p. 434decision.” p. 434
Library of Congress/LC-USZ62-44166
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The “nine old men”—The Supreme Court in 1937, not long after President Franklin D. Roosevelt tried, unsuccessfully, to “pack” it by appointing six additional justices who would have supported his New Deal legislation. Justice Owen J. Roberts (standing, second from the left) changed his vote on these matters, and the Court ceased to be a barrier to the delegation of power to the bureaucracy. P. 435
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Map 16.1 U.S. District and Appellate CourtsMap 16.1 U.S. District and Appellate Courts
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Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth.Source: Administrative Office of the United States Courts (January 1983).
Selecting Judges
Selecting Judges/Pres. Selecting Judges/Pres. Nominates/Senates approvesNominates/Senates approves• Senatorial Courtesy—gives preference Senatorial Courtesy—gives preference
to senator of that state to pick judgeto senator of that state to pick judge• The “Litmus Test” test of political The “Litmus Test” test of political
ideology to select a judge/president ideology to select a judge/president uses thisuses this
The Structure of the Federal The Structure of the Federal CourtsCourts
Lower Federal CourtsLower Federal Courts• Constitutional Court (Constitutional Constitutional Court (Constitutional
protection)protection) District courts—most important, 94/federal District courts—most important, 94/federal
trials held heretrials held here Courts of appeal—hear appeals from district Courts of appeal—hear appeals from district
courts/no trialscourts/no trials
• Legislative Court (created by congress)Legislative Court (created by congress) Court of Military Appeals/judges can be firedCourt of Military Appeals/judges can be fired
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Selecting Judges/Court system
Dual court system State and federal Federal-Question casescases
concerning the Constitution, federal laws, or treaties (Rob federal bank)
Diversity casesinvolving citizens of different states who can bring suit in federal courts if it is over$75,000
Figure 16.1 Female and Minority Figure 16.1 Female and Minority Judicial Appointments, 1963–2004Judicial Appointments, 1963–2004
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Source: Updated from Harold W. Stanley and Richard G. Niemi,Vital Statistics on American Politics, 2005–2006 (Washington, D.C.:Congressional Quarterly, 2006), table 7.5.
Figure 16.1 Female and Minority Figure 16.1 Female and Minority Judicial Appointments, 1963–2004Judicial Appointments, 1963–2004
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Source: Updated from Harold W. Stanley and Richard G. Niemi,Vital Statistics on American Politics, 2005–2006 (Washington, D.C.:Congressional Quarterly, 2006), table 7.5.
Figure 16.2 Confirmation Rates for Figure 16.2 Confirmation Rates for Nominees to the U.S. Court of Appeals Nominees to the U.S. Court of Appeals
(1947–2005)(1947–2005)
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Source: “The Consequences of Polarization: Congress and the Courts” by Sarah A. Binder, in David Brady and Pietro Nivola, Eds., Red and Blue Nation? (Vol. 2) Consequences and Correction of America’s Polarized Politics. Brookings Institutions and Hoover Institution Presses. Reprinted with permission of the author.
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Sonia Sotomayor became the third female and first Hispanic Sonia Sotomayor became the third female and first Hispanic justice on the Supreme Court. p. 440justice on the Supreme Court. p. 440
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The Jurisdiction of the Federal The Jurisdiction of the Federal CourtsCourts
Writ of certiorari – Writ of certiorari – An order by a higher An order by a higher court directing a lower court to send up court directing a lower court to send up a case for review.a case for review.
Supreme Court picks the cases it would Supreme Court picks the cases it would like to reviewlike to review
4 Justices need to agree to hear the case4 Justices need to agree to hear the case Grant it if 2 court of appeals courts Grant it if 2 court of appeals courts
decided it different/violation of decided it different/violation of ConstitutionConstitution
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Figure 16.3 The Jurisdiction of the Figure 16.3 The Jurisdiction of the Federal CourtsFederal Courts
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p. 441
Getting to CourtGetting to Court In forma pauperisIn forma pauperispoor poor
person can have his/her person can have his/her case heard in federal court case heard in federal court without costwithout cost
Fee ShiftingFee Shiftingplaintiff plaintiff recovers costs from the recovers costs from the defendant if plaintiff winsdefendant if plaintiff wins
StandingStandingif you sue, you if you sue, you must be entitled to bring a must be entitled to bring a suitsuit
Class Action SuitsClass Action Suitshelp help him/her and all others who him/her and all others who are in similar situationare in similar situation
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Linda Brown was refused admission to a white elementary school in Topeka, Kansas. On her behalf, the NAACP brought a class-action suit that resulted in the 1954landmark Supreme Court decision Brown v. Board of Education. p. 445
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Warmup
http://www.youtube.com/watch?v=WsIZM6bzoEM&feature=related
Warm-up Constitution review
The Supreme Court in ActionThe Supreme Court in Action
BriefBriefdocument, sets forth facts of case/laws document, sets forth facts of case/laws supporting it written by an attorney supporting it written by an attorney
Amicus curiaeAmicus curiaeBrief submitted by “friend of court” Brief submitted by “friend of court” interested groupinterested group
Per curiam Per curiam opinion—brief unsigned opinion of courtopinion—brief unsigned opinion of court Opinion of the court—majority of the court write Opinion of the court—majority of the court write
it/sign itit/sign it Concurring opinion—written when majority has Concurring opinion—written when majority has
agreed but for different reasonsagreed but for different reasons Dissenting opinion—signed opinion in which one or Dissenting opinion—signed opinion in which one or
more justice disagree with the majority viewmore justice disagree with the majority view
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The members of the Supreme Court, front row, from left are: Anthony The members of the Supreme Court, front row, from left are: Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia, Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia, and Clarence Thomas. Back row, from left are: Samuel Alito, Ruth Bader and Clarence Thomas. Back row, from left are: Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447
Charles Dharapak/AP Photo
The Power of the Federal CourtsThe Power of the Federal Courts The Power to Make PolicyThe Power to Make Policy
• Stare decisis “allowing Stare decisis “allowing prior rulings to control prior rulings to control current case”current case”
• Political question “lets Political question “lets congress/President congress/President decide” district decide” district boundariesboundaries
• Remedy—correct Remedy—correct situation judge believes situation judge believes wrongwrong
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The activism of federal courts is exemplified by the sweeping orders they have issued to correct such problems as overcrowded prisons. p. 448
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Checks on Judicial PowerChecks on Judicial Power
Congress and the CourtsCongress and the Courts• ConfirmationsConfirmations• Impeachment (15) 4 convictedImpeachment (15) 4 convicted• Number of judges alter the Number of judges alter the
number/create to their likingnumber/create to their liking• Jurisdiction—prevent matters Jurisdiction—prevent matters
it did not want federal courts it did not want federal courts to act on to ever make it to to act on to ever make it to courtcourt
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Thurgood Marshall became the first black Supreme Court justice. As chief counsel for the NAACP, Marshall argued the 1954 Brown v Board of Education case in front of the Supreme Court. He was appointed to the Court in 1967 and served until 1991. p. 452
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Figure 16.4 Public Confidence Figure 16.4 Public Confidence in the Court, 1974 - 2006in the Court, 1974 - 2006
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Source: The Gallup Poll.
M E M O R A N D U MM E M O R A N D U M
To: To: Senator Ann GilbertSenator Ann Gilbert
From: From: Amy Wilson, legislative assistantAmy Wilson, legislative assistant
The Supreme Court has held that the attorney general cannot The Supreme Court has held that the attorney general cannot use his authority over federally controlled drugs to block use his authority over federally controlled drugs to block the implementation of the Oregon “Death With Dignity” the implementation of the Oregon “Death With Dignity” law. Now some of your colleagues want to enact a federal law. Now some of your colleagues want to enact a federal equivalent of that law that would allow physicians to equivalent of that law that would allow physicians to prescribe deadly drugs to patients who request them.prescribe deadly drugs to patients who request them.
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WHAT WOULD YOU DO?WHAT WOULD YOU DO?
Arguments for:Arguments for:
1. The law respects the people’s rights to choose the time and 1. The law respects the people’s rights to choose the time and place of their own death.place of their own death.
2. It is already permissible to post “Do Not Resuscitate” orders 2. It is already permissible to post “Do Not Resuscitate” orders on the charts of terminally ill patients.on the charts of terminally ill patients.
3. Physicians can be held to high standards in implementing 3. Physicians can be held to high standards in implementing the law.the law.
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WHAT WOULD YOU DO?WHAT WOULD YOU DO?
Arguments against:Arguments against:
1. The law will corrupt the role of doctors as many think has 1. The law will corrupt the role of doctors as many think has happened in Holland, where a similar law has led some happened in Holland, where a similar law has led some physicians to kill patients prematurely or without physicians to kill patients prematurely or without justification.justification.
2. Such a law will lead some physicians to neglect or ignore 2. Such a law will lead some physicians to neglect or ignore the desires of the patient.the desires of the patient.
3. This law will undermine the more important goal of helping 3. This law will undermine the more important goal of helping patients overcome pain and depression.patients overcome pain and depression.
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WHAT WOULD YOU DO?WHAT WOULD YOU DO?
Your decision:Your decision:
Support the law?Support the law?
Oppose the law?Oppose the law?
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WHAT WOULD YOU DO?WHAT WOULD YOU DO?
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