Chapter Fourteen. Everyone is in the HOT SEAT! Origins of the U.S. Judiciary (3) Basis of U.S. Law:...
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Transcript of Chapter Fourteen. Everyone is in the HOT SEAT! Origins of the U.S. Judiciary (3) Basis of U.S. Law:...
Chapter Fourteen
Everyone is in the HOT SEAT!• Origins of the U.S. Judiciary (3)• Basis of U.S. Law: 2(language and common)• Sources of U.S. Law: 5
*Your group must create a poster (divided into thirds) that addresses these three issues. Utilize pictures, logical organization, and buzz words to help explain concepts.
*One person will present info. to the rest of class
Reading Quiz
• What is the process by which cases are brought and decided in the American legal system?
• In Brown v. Board of Education, who was the Plaintiff as well as the petitioner?
• When law is made by judges from the bench, what type of law is this called?
• When a judges rely upon past precedents and decisions of previous cases, what Latin phrase are they invoking?
Goals for today:
• Court Case Review
• Describe how the federal judiciary was formed
• Explain basic law: language and law
• Explain the different sources of law
Federalist No. 78
• ……This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.
Front: L-R: Justice Ruth Bader-Ginsberg, Justice Anthony M. Kennedy, Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence ThomasBack: Justice Elena Kagan, Justice Samuel Alito, Justice Stephen G. Breyer, Justice Sonia Sotomayor
U.S. Supreme Court
High Court SCOTUS
• Article III of the U.S. Constitution• Section 1.• 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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
• Section 2.• The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
• In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
• The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
• Section 3.
• Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
• The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
The Origins of the U.S. JudiciaryThe Origins of the U.S. Judiciary
• The Constitution and the Judiciary Act of 1789• Marbury v. MadisonMarbury v. Madison and Judicial Review and Judicial Review• Expanding the Federal Courts: The Judiciary Act Expanding the Federal Courts: The Judiciary Act of 1891of 1891
Federal Judiciary Act of 1789
• Created the federal district courts (originally one federal court in every state—strong ties to state)
• “It is emphatically the province and duty of the judicial department to say what the law is.”
• Judicial Review is the most significant power the Supreme Court exercises
• (Over 160 federal laws since have declared unconstitutional)
Marbury v. Madison 1803
Judiciary Act of 1891
• Set up the middle level of the federal court system—the court of appeals: CIRCUIT COURTS
• What effect did creating these separate courts of appeals have on the U.S. Supreme Court?
The Basis of U.S. LawThe Basis of U.S. Law
• The Language of U.S. Law• Civil law• Criminal law
• Common LawCommon Law• Historical basisHistorical basis• Stare decisisStare decisis
• Code LawCode Law
Common Law
• Laws created by courts through the cases they decide
• EX: 2005 Terri Schiavo case / Cruzan v. Missouri Department of Health
• Stare Decisis: “let the decision stand” Judges must abide by legal precedent earlier cases established
Code Law
• Laws created by the legislators (by Congress and states)
• Also known as statutory law
• Compilation of all the laws passed by U.S. Congress are called the U.S. Code
• Quicker/Swifter than common law
• Courts usually have to interpret code laws
Language of U.S. Law
• Litigation
• What are the levels of court systems in U.S.?
• What are the two different kinds of law the U.S. combines?
• What are the two types of cases in U.S. judiciary?
• What are the two different kinds of courts in the U.S. system? (MANY MANY different courts, but they are either__________or ______________)
American Law Basics• Litigation: The process of reviewing and deciding cases brought into the
legal system (basically the process of bringing a lawsuit to court) – Plaintiff —the person filing the “complaint” and bringing the case to
court (first in the case name: eg: Roe v. Wade—Roe was the plaintiff as well as the petitioner—person petitioning to a higher court)
• Prosecution would be the term used if the Government is bringing suit against a person.
• The Burdon of Proof is ALWAYS on the prosecution!! Innocent until PROVEN guilty!
– Defendant —the person defending himself against the plaintiff’s accusations.
• Civil Law v. Criminal Law– Civil law involves disputes between private parties, usually over family,
contracts, or torts (injury to person or property, defamation of character (libel & slander)).
– Criminal law involves cases brought against a defendant by the government due to conduct in violation of law that threatens society at large.
American Law Basics• The Appeals Process
– The party that appeals to a higher court to have a lower court decision overturned is known as the petitioner (appellant, first name in a case) and the person arguing against it is the respondent (appellee, second name in the case)
– Either party may appeal in a civil case, but in criminal cases, only the defendant can appeal NOT the government. Either side may appeal regarding sentencing imposed after a guilty verdict.
American Law Basics
• Habeas Corpus – a court is required to explain to a judge why a prisoner is being held. – Clip – Former Attorney General Gonzales on
Habeas Corpus
• Grand Juries – indict citizen on charges
• Petit Juries – convicts or acquits at trial
• Plea Bargain: Defendant agrees to plea guilty to a lesser charge– As high as 80% of criminal cases
in the US end in a plea bargain– This saves the cost and time of trial
• --Participants in Judicial System:
– plaintiff, defendant, petitioner(appellant), respondent (appellee), juryrticipants 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• Solicitor General defends U.S. Government in
Supreme Court
• The Federal and State Constitutions
- Constitutions highest form of law- They outline structure of federal and state governments- They delineate the powers of the government and the limitations on those powers
• StatutesStatutes- Statutes are laws created through the legislative process- Statutes are laws created through the legislative process- Statutes create code laws- Statutes create code laws- They reflect the core principles of the government system- They reflect the core principles of the government system
• Judicial decisionsJudicial decisions- Judicial decisions are based on principle of - Judicial decisions are based on principle of stare decisisstare decisis- They include an opinion that justifies a judge’s decision- They include an opinion that justifies a judge’s decision- Judicial opinions then become part of the common law- Judicial opinions then become part of the common law
• Executive OrdersExecutive Orders- The authority to issue an executive order=Pres and Gov.- The authority to issue an executive order=Pres and Gov.- The U.S. and state constitutions grant this power- The U.S. and state constitutions grant this power
• Administrative LawAdministrative Law- Administrative law centers on rule-making authority that Administrative law centers on rule-making authority that legislators grant to bureaucrats legislators grant to bureaucrats - Allows bureaucrats to act as quasi-legislators- Allows bureaucrats to act as quasi-legislators
SourcesSourcesofof
U.S.U.S.Law:Law:
Morse v. Frederick (2007) clip
Goals for today:
► Explain the structure and jurisdiction of the federal court system
► Describe how justices are selected and appointed
► Describe how a case reaches the Supreme Court of the United States and how SCOTUS decides cases.
• Federal question • Diversity of citizenshipDiversity of citizenship• Original jurisdictionOriginal jurisdiction• Appellate jurisdictionAppellate jurisdiction
JurisdictionJurisdictionofof
FederalFederalCourts:Courts:
DUAL SYSTEM: The U.S. judicial system has both federal and state courts
• Section 2.• The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
• In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
• The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
StructureStructureof theof theFederalCourts::
District Courts
• District Courts (94 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
Circuit Courts (Courts of Appeal/Appellate)
• Courts of Appeal– Appellate Jurisdiction: reviews the legal
issues in cases brought from lower courts– Hold no trials and hear no testimony– 13 circuit courts– U.S. Court of Appeals for the Federal Circuit –
specialized cases– Focus on errors of procedure and law
StructureStructureof theof the
FederalFederalCourts:Courts:
U.S. Supreme Court
• The Supreme Court– Ensures uniformity in interpreting national laws,
resolves conflicts among states and maintains national supremacy in law
● Hear federal-question cases and diversity cases
• 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
U.S. District Courts94 Courts hearing about 325,000 cases per year Ordinary Trials courts of Federal System
U.S. District Courts94 Courts hearing about 325,000 cases per year Ordinary Trials courts of Federal System
U.S. Court of Appeals13 Courts hearing about 60,000 cases per year
U.S. Court of Appeals13 Courts hearing about 60,000 cases per year
U.S. Supreme Court Hears 70-80ish cases per term
Article III of Constitution: Original Jurisdiction in cases involving 2 or more states, ambassadors, The U.S. v. a State, citizens of different states, cases in which U.S. is a party
State Circuit Courts
100 Million filings per yearOrdinary trial courts of states
State Circuit Courts
100 Million filings per yearOrdinary trial courts of states
State Appellate Courts
39 states hears about 300,000 cases per year
State Appellate Courts
39 states hears about 300,000 cases per year
State Supreme Court
50 Courts hears about 100,000 cases per year
APPEAL
APPEAL
American Court System
Selecting Judges for Selecting Judges for the Federal Benchthe Federal Bench
• The Senate’s Role in Appointment and Confirmation
• Competence• Ideology
• RepresentationRepresentation
CLIP
CNN Clip
• Presidents have had the most success in changing the direction of decisions of the federal judiciary by
• A. threatening to ask Congress to impeach specific
judges• B. using the media to build consensus for the
President’s position• C. requesting that Congress reduce the term of office
that judges may serve• D. using the appointment process to select judges with
judicial philosophies similar to those of the President• E. pressuring Congress to pass the appropriate
legislation to override judicial opinions
The Politics of Judicial Selection
• Presidents appoint members of the federal courts with “advice and consent” of the Senate.
• 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 Politics of Judicial Selection
• The Supreme Court– Fewer constraints on president to nominate persons
to Supreme Court– President relies on attorney general and DOJ to
screen candidates– Use of political litmus tests (test of ideological purity)
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
Selection of federal judges
• What are the qualities of a good judge?
• Criteria usually used to select judges:
– Judicial Competence
– Ideology
• Litmus Test –an examination of the political ideology of a nominated judge
– Gender/Racial/Ethnic/Religious background taken into consideration
Sonia Sotomayor1954
U.S. Court of AppealsNominated by: ObamaConfirmed: Aug. 2009
Collegial Court: court made up of judges who must evaluate a case together
Elena KaganSolicitor GeneralNominated by Obama Confirmed August 2010
The President’s impact on the Federal Judiciary
“Borked’• In March 2002, the
Oxford English Dictionary added an entry for the verb “Borked” as U.S. political slang, with this definition: "To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”
• The phrase originated following the 1987 failure to confirm Reagan appointee Robert Bork to SCOTUS due to his controversial conservative views.
• Clip
Ideological Make-up of SCOTUSMore Liberal (Left)—
Want Change—Govt Should be an agent of that Change
More Conservative (Right)
Resist Change—less govt
Stephen Breyer
E. Kagen
S.Sotomayor
Ruth Bayder Ginsberg
Anthony Kennedy
J. Roberts A. Scalia
S. Alito C. Thomas
7000 petitions are filed with Court each year asking for the review of a case already decided
Supreme Court clerks pool memos outlining the facts, arguments, and recommendations Clip: Gideon’s Trumpet
Chief Justice distributes discuss list and justices decide if they want to issue a writ of certiorari (rejects over 96% of writ requests)
How does a case reach the U.S. Supreme Court ?
Justices decide if they are going to hear a case by the “RULE OF FOUR” Clip 2: Gideon’s Trumpet
Once the justices agree to take a case, it goes on the “DOCKET”/date set
Petitioner has 45 days to file a brief to the Court—after that the respondent has 30 days to file its own brief *Amicus Curiae briefs also submitted: way to lobby the court
Oral arguments are given by both side Clip 3 Clip 4
Justices meet in conference to deliberate
They share how they plan to vote—Chief Justice decides if in majority, opinion writing assigned
Majority OpinionDissenting OpinionConcurring Opinion
Court publishes their ruling—On rare occasions they read them from the bench
The Court And Its Procedures
Beginning of the Day• When the Court is in session, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant:
• “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”
• Oyez comes from the latin verb audire “to hear”
Pictures and video of the S.C. have never been allowed, but audio is recorded and available on
the Oyez Project website.
The Court And Its Procedures
• A Term of the Supreme Court begins, by statute, on the first Monday in October until late June or early July.
• Each Term is divided between “sittings” (2 weeks) and “recesses” (2 weeks). 20-24 cases heard per sitting.
• During the sittings oral arguments are heard. • During recess period, the Justices study the argued and forthcoming cases
and work on their opinions. • Each week the Justices must also evaluate more than 130 petitions (certs)
seeking review.• When the Court is sitting, public sessions begin promptly at 10 a.m. and
continue until 3 p.m., with a one-hour lunch recess starting at noon. • No public sessions are held on Thursdays or Fridays. On Fridays the Justices
meet to discuss the argued cases and to discuss and vote on petitions for review.
• The Court employs this rotating schedule until all docketed cases are reviewed, usually by the end of April or early May. During May and June, the Justices announce orders and decisions; from July through September, they read petitions for writs of certiorari and discuss cases for the upcoming term.
How does a Case get to the Court?• Petition for Writ of Certiorari. (pronounced Sir-She-or-Ree) (informally called
"Cert Petition.") A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court.
• Writ of Certiorari: A decision by the Supreme Court to hear an appeal from a lower court. Most cases come to the Supreme Court via this means.
• Law Clerks: Young recent law school grads who finished at the top of their class who help judges review cases by writing memos summarizing cert petitions , help judges draft opinions.
– After clerking for a Supreme Court Judge, clerks often receiving lucrative signing bonuses ($200,000 plus) to work for prestigious law firms around the country.
• Rule of Four: Judges review certs and when four judges agree the case is put on the docket
• Each side in a case write briefs in support of their position.
• Other non-litigant parties can file Amicus Curiae briefs (“friend of the Court”) on behalf of their interests—PRIMARY way the courts are lobbied.
Supreme Court Decisions • Once the court is in session, oral arguments are heard on the cases on the docket.
Each side usually gets 30 minutes. SCOTUS will hear 3-5 cases per day wile in session.
• Department of Justice has the Solicitor General represent the US in all cases in front of the Supreme Court. –AP question
• The court’s verdict (what they decide) is called the majority opinion—It announces the Court’s ruling and the reasoning behind it. – A concurring opinion is that written by a member of the majority who wishes to
elaborate on the majority opinion, or disagrees with the arguments used entirely but agrees with the conclusion.
– The dissenting opinion is written by any one or more of the Justices (if any disagree) who oppose the majority opinion
• In the event of a 4-4 tie in the Supreme Court, the lower court's decision stands. – This situation actually happens quite frequently because a justice recuses
themselves due to a conflict • Example: John Roberts recently in the case concerning the validity of military
tribunals to try terrorists - Hamdan v. Rumsfeld. Roberts was one of the judges on the lower court decision before later being appointed chief justice.
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, Several cases increased power of federal govt: McCulloch v. Maryland
-- Roger B. Taney—focus on state’s right: Dred Scott case
(1836)
– The “Nine Old Men”—business v. liberty 1937– The Earl Warren Court-1953, more activist: Brown case– The Burger Court—activist: Roe v. Wade, U.S. v. Nixon– The Rehnquist Court– served for 19 years (4th longest)
Judicial restraint: Planned Parenthood v.Casey 1992– The Roberts Court: more of a conservative tilt
John Marshal –34 Years as Chief Justice -1801-1835
during the formative Years of American History—Led the court in the direction to support a Stronger National Govt.
over the States
“The Marshal Court”
• The Marshal Court and Judicial Review– Though the landmark case Marbury v. Madison (1803), the judicial
branch possesses the power to determine the constitutionality of an action of the government.
• In most cases the judiciary has supported the constitutionality of government acts: but in more than 130 cases, the courts have found congressional acts to be unconstitutional, and they have voided thousands of acts of Sate and local government.
The Modern Court
• Warren Court (Earl Warren): 1953-1969– Seen as more liberal and activist
• Burger Court (Warren Burger): 1969-1986– Seen as more liberal and activist
• Rehnquist Court (William Rehnquist): 1986-2005– Seen as more conservative
• Roberts Court (John Roberts): 2005-– Similar to Rehnquist Court since the
ideological make-up has not changed
The Warren Court (1953-1969)The Warren Court made a number of alternately celebrated and controversial rulings expanding the application of the Constitution to civil liberties and civil rights, leading a renaissance in substantive due process.
Earl Warren
Brown v. Board of Education of Topeka Kansas (1954)
• Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal.
The Burger Court 1969-1986 Reaction to 60s and 70: Although Burger had conservative leanings, Court
delivered a variety of transformative and controversial decisions on abortion, capital punishment, religious establishment, freedom of the press (NY Times v. U.S.), even the Nixon tape case
Warren E. Burger
The Rehnquist Court 1986-2005
Sitting L. to R.: (Bottom) Marshall, Brennan, Rehnquist, White, Blackmun. (Top) Scalia, Stevens, O'Connor, Kennedy
Conservatism in the Court• The Rehnquist Court (1986–2005) had created a
majority of conservative jurists, but still was unable to rule conservatively on the “wedge issues.” There was a strong focus of ownership rights and a limit the power of the federal government.
• Generally it upheld, but set limits on abortion rights, affirmative action, and other controversial decisions made by previous courts.
• The court set some limits on affirmative action, student free speech, personal litigation, while expanding the power of corporations and increased religion in public schools, as well as school vouchers.
Robert’s Court• District of Columbia v. Heller (2008)
– 5-4 decision held that the Second Amendment protects an individual's right to possess a firearm (handgun) for private use.
• Lifted the handgun ban in Washington D.C. • It was the first Supreme Court case in United States history to directly
address whether the right to keep and bear arms is a right of individuals or a collective right that applies only to state-regulated militias.
• McDonald v. Chicago—2010– Court accepted the Writ of Certiorari (cert)—petition for a higher court to
review a decision made by a lower court– The petitioners seek to overturn a handgun ban in Chicago unconstitutional. – 2010—SCOTUS ruled that Chicago’s ban on handguns was a violation of
the 2nd Amendment to the Constitution.
2010: Supreme Court• Citizens United v. Federal Election Commission
– 5-to-4 decision ruling that corporate funding of independent political broadcasts in candidate elections cannot be limited, because doing so would be a violation of the First Amendment.
– Struck down parts of the BCRA, specifically the part that banned media electioneering by corporations and unions 30 days prior to a federal primary and 60 prior to a general election.
Morse v. Frederick (2007) clip
Chief Justice: John Roberts
John Roberts (Chief Justice)
• Appointed by in 2005 by Bush
• 54 years old (1955)
• Conservative
Antonin Scalia
• Appointed in 1986 by Reagan
• 75 Years Old (1936)
• Conservative– Strong Strict
Constructionist
Clarence Thomas
• Appointed in 1991 by George HW Bush
• 63 Years Old (1948)
• Conservative
Samuel Alito
• Appointed in 2006 by Bush
• 61 Years Old (1950)
• Conservative
Anthony Kennedy
• Appointed in 1988 by Reagan
• 75 Years Old (1936)
• Centrist—leans Conservative
Ruth Bader Ginsburg
• Appointed in 1993 by Clinton
• 78 Years Old (1933)
• Liberal
Stephen Breyer
• Appointed in 1994 by Clinton
• 73 Years Old (1938)
• Liberal
Sonia Sotomayor
• Appointed in 2009 by Barack Obama
• 56 Years Old (1954)
• Liberal??
May 10, 2010:• President Obama nominate Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens
• Kagan is the current Solicitor General—the top lawyer who represent the United States in Supreme Court cases involving the U.S.
• Served as a law clerk under Justice Thurgood Marshall
Bio Confirmation HearingSwearing in
Elena Kagan
• Appointed in 2010 by Barack Obama
• 51 Years Old (1960)
• Liberal??
Ideological Make-up of SCOTUSMore Liberal (Left)—
Want Change—Govt Should be an agent of that Change
More Conservative (Right)
Resist Change—less govt
Stephen Breyer
E. Kagen
S.Sotomayor
Ruth Bayder Ginsberg
Anthony Kennedy
J. Roberts A. Scalia
S. Alito C. Thomas
Judges as PolicymakersJudges as Policymakers
• Activism versus Restraint• Competing Legal InterpretationsCompeting Legal Interpretations
Judicial Philosophy and Constitutional Interpretation
• Is the Constitutional a living document capable of adapting to society or a rigid document that is designed to prevent change? How should a text be read and applied?
• Strict Constructionist philosophy– “Judicial Restraint” –strict interpretation
• Judges should not determine policy, but rather, the Congress.
– Believe that the Constitution should be interpreted as literally as possible and with the "original intent" of the framers.
• “Originalism”
– Usually compatible with American conservatism
• Loose Constructionist philosophy– “Judicial Activism” –loose interpretation
• Judges who believe societal goals should be accomplished through the courts and thus apply their own political philosophy while interpreting the Constitution.
– Believe Constitution is a living, fluid document open to interpretation.– Usually compatible with American liberalism
Antonin Scalia
• Appointed in 1986 by Reagan
• 73 Years Old (1936)• Conservative
– Strong Strict Constructionist
• Clip 1• Clip 2• Clip 3• Clip 4
Stephen Breyer
• Believes in Interpretive Thought = what were the underlying goals and/or intentions of the law?
• The Inner Ring: Legislatures and Chief Executives• The Gatekeepers: ParticipantsThe Gatekeepers: ParticipantsIn the Judicial ProcessIn the Judicial Process• Intra-Court ConstraintsIntra-Court Constraints• The Outer Ring: The UsersThe Outer Ring: The Users
ChecksCheckson theon theCourts:Courts:
Institutional Checks on the Court
• Legislative Checks (Congress):
– Power to create or eliminate courts, set the number of justices on each court, Article I on the Constitution allows Congress to influence the docket/jurisdiction of Federal Courts by passing laws (except in cases of original jurisdiction via Article III on Constitution), Senate confirms judicial nominees, Impeach federal Judges,
– If Courts ruled a law unconstitutional, Congress could always try to pass a new law or amend the Constitution (2/3, of Congress, ¾ of States)
• Executive Check (President):
– President appoints Federal Judges (with Senate Confirmation), can Pardon federal offenses, can use discretion in how strongly he chooses to carry out the Court’s decision via the bureaucracy.
• Intra-Court Constraints: internal checks on how far the Court will deviate from stare decisis, personality of judges ability to influence other judges
Non-Institutional Checks on the Court• Public Opinion: Federal judges are insulated from public opinion for a variety of reasons yet rarely deviate far from public opinion on a subject
– Public could overwhelmingly protest a decision through civil disobedience, and if the executive agrees with them, the Court could risk losing its power and authority, or even public respect (reputation). Public could call for impeachment and lobby their congressmen to initiate it
• Law enforcement discretion: Police are on the front lines of enforcing laws• Interests Group Checks: provide detailed information and amicus curiae briefs and can publicly criticize in order to influence public opinion
-
• An order from the Supreme Court requesting that a lower court send up its records on a particular case is known as a/an– A. Judicial review– B. A filibuster– C. A writ of certiorari– D. Stare decisis
--E. Senatorial courtesy
•
• “An act of the legislative repugnant to the Constitution is void … it is emphatically the province of the judicial department to say what the law is.”-John Marshall, 1803
The above quote from the majority opinion of Marbury vs. Madison establishes which important power of the court?
A. strict construction
B. appellate jurisdiction
C. judicial review
D. certiorari
E. class action suits
•
• Which of the following has the responsibility for creating additional federal courts and assignment the number of judges who will preside in them?– A. The Secretary of the Treasury– B. The Attorney general– C. The Secretary of the Department of Justice– D. The President– E. The Congress
•
• Which of the following best explains the principle of stare decisis?
A. It requires that at least four Supreme Court justices agree to hear a 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.
• Sometimes litigants that are not part of the formal proceeding of Supreme Court oral arguments wish to have their points of view presented to the Court. They may file what is known as a(n)– A. Per curiam decision– B. Writ of certiorari– C. Amicus curiae brief– D. Stare decisis – E. Petition certificate
• In order for a case to be heard in the Supreme Court of the United States, a consensus must be reached among the justices. This agreement is known as:– A. A writ of certiorari – B. A precedent– C. Amicus curiae– D. the rule of four– E. A certificate of agreement
•
