Chapter 16. In most modern democracies the executive and legislative branches hold considerable...

Chapter 16

In most modern democracies the executive and legislative branches hold considerable power, but most grant little policymaking power to the judicial branch.

The U.S. is an exception, whose judiciary is truly a coequal branch with as much power as the other two.

Yet our government did not begin with this almost equal balance, the founders saw the judiciary as an important check on legislative and executive powers, but not as a policymaking body.

Introduction:•Two types of cases:Criminal Law: The government charges an individual with violating one or more specific laws.

Civil Law: The court resolves a dispute between two parties and defines the relationship between them.

•Most cases are tried and resolved in state, not federal courts.Cases of burglary or divorce

Participants in the Judicial System•Litigants Plaintiff - the party bringing the charge Defendant - the party being charged Jury - the people (normally 12) who often decide the outcome of a case

Standing to sue: plaintiffs have a serious interest in the case; have sustained or likely to sustain a direct injury from the government

Justiciable disputes: A case must be capable of being settled as a matter of law.

Which of the following United States Supreme Court cases established the principle of judicial review?• A. McCulloch v. Maryland• B. Gibbons v. Ogden• C. Wolf v. Colorodo• D. Roe v. Wade• E. Marbury v. Madison

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The Supreme Court’s power of judicial review permits the Court to overrule all of the following EXCEPT• A. lower-court decisions• B. state legislation• C. acts of Congress• D. the Bill of Rights• E. executive orders


Define Judicial Review Explain how judicial review empowers

the Supreme Court within the system of checks and balances.


A nonlitigant group or individual that wants to attempt to influence the court in a particular case can file• A. an amicus curiae brief• B. a writ of error Coram Nobis• C. a habeas corpus petition• D. a writ of certiori• E. a writ of mandamus


Participants in the Judicial System•Groups

Use the courts to try to change policies Amicus Curiae briefs used to influence the courts “friend of the court” briefs used to raise additional

points of view and information not contained in briefs of formal parties

•Attorneys 800,000 lawyers in United States today Legal Services Corporation: lawyers to assist the poor

Access to quality lawyers is not equal.

Explain how interest groups use the following to influence government decision making• Amicus curiae briefs


The number of justices on the United States Supreme Court is set by• A. national convention• B. Congress• C. the president• D. the United States Constitution• E. the American Bar association


Article III:• Section One: The judicial power of the

United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.

District Courts (91 federal courts)•Original Jurisdiction: courts that hear the

case first and determine the facts - the trial court

•Deals with the following types of cases: Federal crimes Civil suits under federal law and across state lines Supervise bankruptcy and naturalization Review some federal agencies Admiralty and maritime law cases Supervision of naturalization of aliens

Courts of Appeal•Appellate Jurisdiction: reviews the legal

issues in cases brought from lower courts•Hold no trials and hear no testimony•12 circuit courts•U.S. Court of Appeals for the Federal

Circuit – specialized cases•Focus on errors of procedure and law

The difference between an appellate court and a district court is that an appellate court• (a) conducts trial by jury• (b)has original jurisdication• (c) reviews previous court decisions• (d)hears civil cases but not criminal cases• (e) does not follow the principle of stare

decisis


The Supreme Court•Ensures uniformity in interpreting

national laws, resolves conflicts among states and maintains national supremacy in law 9 justices – 1 Chief Justice, 8 Associate Justices Supreme Court decides which cases it will hear—controls its own agenda

Some original jurisdiction, but mostly appellate jurisdiction

Most cases come from the federal courts Most are civil cases

Biographies of Current Justices

Presidents have failed 20% of the time to get Senate confirmation of their nominees to the Supreme Court, a percentage much higher than any other federal position. • Why does this particular

office have such a high rate of rejection?

• Why are so few nominees for district and appeals courts rejected?

Justice Sonia Sotomayor’s confirmation hearing in the summer of 2009.

Presidents appoint members of the federal courts with “advice and consent” of the Senate.

Appointments to the Lower Courts• Appointments handled through Senatorial

Courtesy: Unwritten tradition where a judge is not confirmed if a

senator of the president’s party from the state where the nominee will serve opposes the nomination

Has the effect of the president approving the Senate’s choice

• President has more influence on appellate level

The Supreme Court• Fewer constraints on

president to nominate persons to Supreme Court.

• President relies on attorney general and DOJ to screen candidates.

• 1 out of 5 nominees will not make it.

• Presidents with minority party support in the Senate will have more difficulty.

• Chief Justice can be chosen from a sitting justice, or as a new member to the Court.

Characteristics:• Generally white males• Lawyers with judicial and

often political experience

Other Factors:• Generally of the same

party and ideology as the appointing president

• Judges and justices may not rule the way presidents had hoped they would have.

Using the chart, describe ONE similarity between President Clinton’s judicial appointments and those made by George H.W. Bush.

Using the chart describe TWO differences between President Clinton’s judicial appointments and those made by President George H.W. Bush


Sonia Sotomayor replaced David Souter (2009)Elena Kagan replaced John Paul Stevens (2010)

Describe two ways in which the United States Supreme Court is insulated from public opinion

Explain how two factors work to keep the United States Supreme Court from deviating too far from public opinion.


Accepting Cases• Use the “rule of four” to choose cases• Issues a writ of certiorari to call up the case• Supreme Court accepts few cases each year

Which of the following statements about writs of certiorari is accurate?• A. Cases appealed by the solicitor general are

automatically granted certiorari• B. The Supreme Court grants certiorari for less than 5%

of the cases appealed to it• C. The Supreme Court has historically granted certiorari

to all separation of power cases.• D. The Supreme Court does not grant certiorari to cases

involving state laws• E. Federal district courts sometimes issue writs of

certiorari to state appellate courts


Describe one way in which the United States Supreme Court is insulated from public opinion.

Describe the process through which the Court grants writ of certiorari


Accepting Cases (continued)•The Solicitor General: a presidential appointee and third-ranking office in the Department of Justice

is in charge of appellate court litigation of the federal government

Four key functions Decide whether to appeal cases the government lost Review and modify briefs presented in appeals Represent the government before the Supreme Court Submit a brief on behalf of a litigant in a case in

which the government is not directly involved

Donald B. Verrilli, Jr. was sworn in as the 46th Solicitor General of the United States on June 9, 2011.

Making Decisions• Oral arguments heard by the justices• Justices discuss the case• One justice will write the majority opinion

(statement of legal reasoning behind a judicial decision) on the case

Making Decisions (continued)• Dissenting opinions are written by justices who

oppose the majority.• Concurring opinions are written in support of the

majority but stress a different legal basis.• Precedent: how similar past cases were decided

May be overruled

• Stare decisis: let previous decision stand unchanged

• Original Intent: the idea that the Constitution should be viewed according to the original intent of the framers

Which of the following best explains the principle of stare decisis?• A. It requires that at least four Supreme Court

justices agree to hear the case.• B. it encourages presidents to take judicial

experience into account when nominating judges• C. it encourages judges to follow precedent when

deciding cases• D. It reinforces the philosophy of judicial activism• E. It increases the number of cases judges are

required to hear.


Smyrna High School’s Mission Smyrna High School’s Philosophy of

Discipline Progressive Approach to AP Government

• What is the goal of AP courses? College Pacing or College Grading? Living Syllabus 100% of your grade will be based on

your test scores. Grade Distribution Grade Redistribution

What did John Locke say was the purpose of good government?

Can the government take your property? 5th Amendment: The right of the people to be

secure in their persons, houses, papers, and effects against the unreasonable searches and seizures, shall not be violated…

Can the government take your house?• Through Supreme Court decisions we have

Eminent Domain: inherent power of the state to seize someone’s property

• Stop the Beach Renourishment vs. Florida Dept of Environmental Protection

Can the government take your money? 16th Amendment (1913): the Congress

shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

Can the government control your wages? Can it set a maximum pay rate? New York Times Can the government tell you what you can and

can’t eat?

Original Intent vs. Living Constitution Why is judicial discretion an issue?

• Read The Debate Over Original Intentions, p. 525 Perspective #1: Original Intent

Logic/Reasons Perspective #2: Living Constitution

Logic/Reasons Your Perspective?

Implementing Court Decisions• Judicial implementation: how and

whether court decisions are translated into actual policy, thereby affecting the behavior of others Must rely on others to carry out decisions

Interpreting population: understand the decision Implementing population: the people who need to

carry out the decision – may be disagreement Consumer population: the people who are affected (or

could be) by the decision

Explain how one factor works to keep the United States Supreme Court from deviating too far from public opinion.

Explain how one executive power serves as a check on court decisions


A Historical Review• John Marshall and the Growth of Judicial Review

Marbury v. Madison (1803) established judicial review—courts determine constitutionality of acts of Congress

• The “Nine Old Men”—conservative, controversial New Deal court, frustrated FDR.

• The Warren Court—liberal court, Brown, Miranda.

• The Burger Court—conservative court, Roe v. Wade, U.S. v. Nixon

• The Rehnquist Court—also conservative, Bush v. Gore

The Courts and Democracy• Courts are not very democratic.

Not elected Difficult to remove judges and justices

• The courts often reflect popular majorities.• Groups are likely to use the courts when

other methods fail, which promotes pluralism.

• There are still conflicting rulings leading to deadlock and inconsistency.

Explain how one factor works to keep the United States Supreme Court from deviating too far from public opinion.


What Courts Should Do: The Scope of Judicial Power• Judicial restraint: judges should play a

minimal policymaking role• Judicial activism: judges should make bold

policy decisions and even chart new constitutional ground

• Political questions: means of the federal courts to avoid deciding some cases

• Statutory construction: the judicial interpretation of an act of Congress

Explain how the following influences decisions made by individual jutices when deciding cases heard by the Court.• Judicial activism


Explain how one legislative power serves as a check on court decisions.


Judicial policymaking and implementation occur in lower federal and state courts.

Many important questions are heard by the courts.• Much decision making is limited by

precedent. Even the unelected courts promote

democratic values.

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