Transcript The Judiciary - Pinewood Christian Academy

The Judiciary
Chapter 9
Prepared by Teresa Nevárez, El Paso Community College
© 2008 Pearson Education, Inc.
English Common Law Precedents
Background: Our federal and most state judiciaries
have deep roots in English common law. The
law is viewed as the means to remedy wrongs
and injustices. The courts cannot initiate cases;
they can only act on cases properly brought
before them. Judicial independence from the
political branches of government emerges as
early as the 12th century. However, as
parliamentary supremacy became firmly
established in England through the Glorious
Revolution of 1688, the courts in that country
could not overturn parliamentary laws through
the exercise of judicial review.
Commentaries on the Laws of England, 1765*
(W. Blackstone)
♦ Every Englishman has the right to have access to the
courts
♦ Citizens should have the right to a free and speedy trial
♦ The laws of the land are permanent, fixed, and
unchangeable, unless by authority of parliament
♦ The king may erect new courts of justice, but they must
proceed according to the old established forms of the
common law
Federalist 78 (A. Hamilton)
♦ One of the lessens to learn from the Articles of
Confederation is the necessity of a federal judicature
♦ Judges must be appointed in the same manner as
other officers of the Union
♦ Judges are to hold office during good behavior
– In a monarchy, this is an excellent barrier to the despotism of
the prince
– In a republic, it is an excellent barrier to the encroachments
and oppressions of Congress
– This is a device to secure a steady, upright, and impartial
administration of the law
♦ The judicial has neither force nor will, merely judgment
– It depends on the executive branch for the efficacious exercise
of this faculty
Federalist 78 (A. Hamilton)
♦ The judicial branch is the weakest of the three
branches
♦ Every provision must be taken to prevent the
other two branches from encroaching on it
♦ There is no liberty if the power of judging is not
separated from the other two branches
♦ The duty of the courts of justice is to declare
void all acts contrary to the Constitution
♦ The courts were designed to serve as
mediators between the people and Congress
♦ The interpretation of the laws is the peculiar
province of the courts
Federalist 78 (A. Hamilton)
♦ The Constitution ought to be preferred to the statute
♦ The power of the people is superior to any branch of
government
♦ Permanent tenure of judicial officers guarantees the
independent spirit of the judges
♦ Permanent tenure guarantees nothing would be
consulted but the Constitution and the laws
♦ Judges should be bound down to strict rules and
precedents to prevent arbitrary discretion in the courts
Marbury v. Madison (1803)
Background: The Constitution does not explicitly establish
the power of judicial review. The power of the
Supreme Court to invalidate an act of Congress was
stated in Marbury v. Madison. President John Adams
appointed a number of justices during the last days of
his administration. Most of his appointments were
delivered, but not all. When Jefferson took office, he
ordered his secretary of state not to deliver the
remaining appointments. Marbury had been appointed
as justice of the peace and his appointment had been
one of those not delivered. He filed a suit with the
Supreme Court requesting a writ of mandamus.
Marbury v. Madison (1803)
♦ The authority of the Supreme Court to issue writs of
mandamus to public officers appears not to be warranted
by the Constitution
♦ The powers of the legislature are defined and limited
♦ The Constitution is a superior paramount law,
unchangeable by ordinary means
♦ The Constitution controls any legislative act repugnant to it
♦ If two laws conflict with each other, the courts must decide
on the operation of each
♦ A written constitution is the greatest improvement on
political institutions
♦ The judicial power is limited to cases arising under the
Constitution
Judicial Self-Restraint (J.P. Roche)
♦ The people must be protected from themselves and
the judiciary is well fitted for this role
♦ The courts have the right to review legislative and
executive action and to nullify those that go against the
spirit of the Constitution
♦ The Supreme Court has the power to review both
national and state legislatures
♦ The courts have enormous policymaking functions
♦ Each of the branches of government has a role that
has given the Constitution its survival power
♦ Judges have the right to substitute their views for those
of past generations and even those of a contemporary
president and Congress
Judicial Self-Restraint (J.P. Roche)
♦ Self-restraint is the most significant form of judicial
limitation
– Avoid significant but controversial problems
– Issue decisions on its own terms
– Procrastinate the acceptance of jurisdiction
♦ Sometimes self-restraint is applied to abdicate national
powers to the states
♦ A disciplined majority would be necessary to clip the
judicial wings
♦ When monolithic majorities do exist on issues, the
Court is likely to resort to judicial self-restraint
♦ Political pluralism undermines the ability of political
majorities to form
How the Supreme Court arrives at
Decisions (W. Brennan, Jr.)
♦ The justices are charged with deciding according to the
law
♦ Judges speak with the mouths of others
♦ The Founders established in the Constitution enduring
principles rather than petty details
♦ Supreme Court cases are one of three kinds
– Original action
– Review of decisions of a federal Court of Appeals
– State court cases coming from their highest court, if the
judgment rests on a federal question
♦ Order of Seating
– Chief Justice sits at the south end
– Senior Associate Justice sits at the north end
How the Supreme Court arrives at Decisions
(W. Brennan, Jr.)
♦ Upon entering the conference room, each of us shakes
hands
♦ The Chief Justice begins the discussion and yields
down the line in order of seniority
♦ Voting goes the other way, beginning with the most
junior member
♦ When any case received four votes for review, the
case is transferred to the oral argument list
♦ Each party is usually granted an hour, but recently oral
arguments have been limited to a half-hour
♦ The counsel submit their briefs and record. Each
justice gets a copy.
How the Supreme Court arrives at Decisions
(W. Brennan, Jr.)
♦ Discussion may spread over two or more conferences
♦ The writing of an opinion always takes weeks and
sometimes months
♦ The Court does not function by committees, panels, or
sections
♦ Judging is not delegated
♦ Americans demand of the Supreme Court a written
opinion
♦ Opinions are the exposition to our whole society
♦ Independence and integrity, not popularity, must be the
Court’s standards
Interpreting the Constitution
Background: Every fundamental change in
domestic social policy has been brought
about by the Court’s decree. Conservatives,
clearly unhappy with the trend, have promised
to take action to reverse the Supreme Court’s
alleged liberalism by appointing conservative
justices. Ironically, presidents have no control
over their appointees once they are on the
Court.
Constitutional Liberty and the Right to
Abortion (S.D. O’Connor)
♦ Liberty finds no refuge in a jurisprudence of doubt
♦ 19 years after Roe v. Wade, the definition of liberty is
still questioned
♦ The Pennsylvania Abortion Act of 1982 requires the
following:
– The woman must give her informed consent prior to the
procedure
– A minor must obtain the informed consent of one of her
parents or a judicial bypass, provided the minor does not wish
to or cannot obtain a parent’s consent
– A married women must sign a statement indicating that she
has notified her husband of her intent
Constitutional Liberty and the Right to Abortion
(S.D. O’Connor)
♦ Essential holding of Roe v. Wade should be retained
and reaffirmed
– It is a recognition of the right of a woman to choose to have an
abortion before viability
– It is a confirmation of the state’s power to restrict abortions
after fetal viability if the law contains exceptions for when the
woman’s life is in danger
– The state has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of
the fetus
♦ Protection for the woman’s decision is found within the
due process clause of the 14th Amendment
♦ Liberties protected by the 14th Amendment are those
recognized by the Bill of Rights against the states
Constitutional Liberty and the Right to Abortion
(S.D. O’Connor)
♦ There is a realm of personal liberty which the
government may not enter
♦ The Court’s obligation is to define the liberty of all, not
to mandate its own moral code
♦ In constitutional adjudication, changed circumstances
may impose new obligations
Liberty, Privacy, and the Right to Abortion
(W.H. Rehnquist)
♦ We have recognized that the meaning of liberty
extends beyond freedom from physical restraint
♦ In Roe v. Wade, the Court recognized a guarantee of
personal privacy
♦ Unlike marriage, procreation, and contraception,
abortion involves the purposeful termination of a
potential life
– Abortion should be considered sui generis
♦ The right to terminate one’s pregnancy is not a
fundamental right
♦ In 1973 an overwhelming majority of the states
prohibited abortion unless to preserve the life or health
of the mother
Liberty and Abortion: A Strict
Constructionist’s View (A. Scalia)
♦ Laws against bigamy intrude upon men’s and women’s
liberty to marry and live with one another
– Bigamy happens not to be a liberty protected by the
Constitution
♦ I am sure the right of a woman to abort is not protected
by the Constitution
– The Constitution says nothing about it
– There is a long-standing tradition in American society to
proscribe it
♦ The Court’s decision was a value judgment that
conceals a political choice