Transcript We the People 5th edition by Benjamin Ginsberg, Theodore J

We the People, Sixth edition
by Benjamin Ginsberg, Theodore J. Lowi, and Margaret Weir
Chapter 15. The Federal Courts
An Overview
Some Data
Jails and Social Order
The Gavel or the Ballot Box?
Will elected branches of government
make authoritative policy decisions or
will appointed judges determine
policy?
In recent years, conservatives have
posed this and other questions as
criticisms of the rise of judicial power
in American politics.
Still, in the 2000 presidential election,
conservatives looked to the Supreme
Court to make the determinative
decision about whether Al Gore or
George W. Bush would win Florida’s
25 electoral votes and the presidency.
Conservatives on the Supreme Court
ultimately allied in Bush’s favor in the
5 to 4 decision in Bush v. Gore.
Indeed, at one crucial stage in the
recount process, one conservative
justice issued a stay which stopped
vote counting.
Quite literally, the gavel prevailed
over the ballot box.
During the last half century, the
Supreme Court and other federal
courts have played increasingly
prominent roles in determining
political questions (as in Bush v.
Gore) and in making major policy
decisions including desegregation,
abortion, and regulating religion in
government and public places.
Not surprisingly, there has
been a litigation explosion in
American politics and society
wherein courts are regularly
asked to settle personal and
policy disputes.
A major political and social
force, the U.S. judiciary has
grown tremendously since its
creation.
The Founding and the Federal
Judiciary
When Antifederalists charged that
the Constitution gave the judiciary
too much power, Federalists
countered that the judiciary was, in
fact, the “least dangerous branch” of
the national government.
“the judiciary, from the nature of its functions, will always
be the least dangerous to the political rights of the
constitution; because it will be least in a capacity to annoy
or injure them … The judiciary … has no influence over
either the sword or the purse, no direction either of the
strength or of the wealth of the society, and can take no
active resolution whatever. It may truly be said to have
neither FORCE nor WILL, but merely judgment.”
--Alexander Hamilton, Federalist #78
The judiciary was constructed to have a wholly different
character from that of the Congress or the presidency.
In terms of judicial selection, judges and justices were to
be insulated from political considerations.
Judges and justices have life terms (“during
good behavior”) conducive of judicial independence.
As non-elected officials, judges and justices have
more leeway to protect minority rights and interests.
Courts also have structural
limitations that legislatures
and executives do not.
First, traditionally,
courts cannot provide
general relief to
constituencies; they can
only provide specific
relief to litigants.
A second structural limitation
is that courts lack initiative;
they must wait for actual
cases and controversies to be
brought to them by litigants
with standing before they can
act.
Despite these traditional
limitations, the U.S.
judiciary has become
very influential in
American politics and
society.
The proper role of the U.S.
judiciary is a subject of
continuing controversy in
American politics. During the
20th century, liberals have
generally defended judicial
activism while conservatives
have decried it.
WHAT DO YOU THINK?



Are there too many lawsuits in
contemporary America? What purpose
does litigation serve? What are its
costs?
Do you think contemporary courts are
too powerful in American politics?
In what ways can courts be considered
above politics? In what ways is it
better to think of judges as legislators
in robes?
The Legal System:
Cases and the Law
criminal law:
the branch of law that deal
with disputes or actions
involving criminal penalties; it
regulates individual conduct,
defines crimes, and provides
punishment for criminal acts
(e.g. U.S. v. Jones)
civil law”
a system of jurisprudence,
including private law and
governmental actions, to
settle disputes that do not
involve criminal penalties
(e.g., Smith v. Jones)
Review
1.
2.
3.
4.
5.
6.
Standing
Least dangerous branch
Activism
Strict construction v loose construction
Political question
Real case rule
A third category of law, public law,
involves cases where one party seeks to
argue that the issues involved concern
the extent of government powers and/or
the rights of citizens.
Precedents:
prior cases whose
principles are used by
judges as the bases for
their decisions in present
cases
stare decisis:
literally, “let the decision
stand.” The doctrine that
a previous decision by a
court applies in similar
cases until that decision is
overrule
Common Law versus Appellate
Law


Principles and rules of interpretation developed over
centuries by Judges
Appellate courts are different
 Makes laws governing only the courts themselves
 Halfway between common law and statutory law



Judge-made law , drawing heavily on precedent
Addressed NOT to citizens, but to courts – what cases
they can take, and how to render verdicts in such cases
Affects citizens by giving them a cause of action, are
taking it away.
Appellate Law 2


An Example :Restrictive covenants
decided in 1948
Much civil law so constructed.



Judicial messages sent to other judges
some codified into legislative enactments
The sample of liability for injuries sustained
at work.
Recently similar pattern in sexual
harassment cases
Appellate Law 3





Cannot “make law” but the pattern of rulings they
render they make it easier for mistreated persons
to gain redress and thereby discourage the
underlying behaviors.
In addressing wrongs the appellant courts can call
for radical changes in legal principles.
The example of angle versus the tall and the
change in the practice religion public institutions
Also notable the revolution the criminal process
because of Gideon Escobedo and Miranda
Revolution in medicine representation starting with
Baker v. Carr 1962.
Following the principle of stare decisis,
judges’ and justices’ goals are constrained
to a degree by previous court rulings.
Still, the other side of this is that when
judges make precedent, they exert
influence over other cases and courts.
Review
1. Hamilton's take on the judiciary
2. Precedent
3. Stare Decisis
4. Fact pattern
5. Policy question v judicial questio
6. Standing
7. Civil law
8. Trial court
9. Independence form politics
10. 2 reasons courts are bad at making public policies.
The Legal System:
Types of Courts
Trial courts are generally the first
courts to hear criminal and civil
cases.
Appellate courts hear the appeals
of trial court decisions.
Supreme courts (both the U. S.
Supreme Court and state supreme
courts) are the highest courts in a
system and they usually serve
appellate functions.
Insert figure 15.1 here

[Figure on US Court System (it is 15.1
in text page 581 but not included in
artwork I received)]
Federal Jurisdiction
Most cases in the federal court
system are handled by district
courts which have original
jurisdiction over most federal
matters.
original jurisdiction:
the authority to initially
consider a case (as
distinguished from
appellate jurisdiction to
hear appeals).
Article III of the Constitution
gives the Supreme Court
original jurisdiction in cases
involving foreign
ambassadors or where a
state is a party and has
appellate jurisdiction in all
federal cases.
The court of jurisdiction
in other federal cases
has evolved over time
as Congress enacts
statutes establishing the
jurisdiction of lower
courts.
Currently, the judiciary is divided
geographically into 94 judicial districts.
These 94 district courts are then
organized into 11 regional circuits plus
a circuit court for the District of
Columbia.
Appeals of decisions of these 12 courts
of Appeals may be heard by the
Supreme Court.
About 10 percent of cases in district
court and federal agencies are
accepted by higher courts for
appeals. Court of Appeals decisions
can be appealed to the Supreme
Court; otherwise they are final.
There also is a federal
element to judicial
appeals: cases
originating in state
courts can be
appealed to the
Supreme Court.
Appellants of state court
decisions may assert, for
example, that they were
denied due process of law
or, in criminal cases, may
request a writ of habeas
corpus in which the state
must justify its decision to
detain the accused.
due process of law:
the right of every citizen
against arbitrary action
by national or state
governments.
Writ of habeas corpus:
a court order that an
individual in custody be
brought into court and
show the cause for
detention.
Appointment of Justices
Article III of the Constitution vests the
“judicial power of the United States” in the
U. S. Supreme Court.
Although the Constitution does not
stipulate as such, there are 9 Supreme
Court justices, 8 associate justices and the
chief justice.
According to the Constitution, federal
justices and judges are nominated by
the president and must be confirmed by
the United States Senate.
Though politics dominates both the
president’s decision and that of the
Senate, both have important
Constitutional roles to perform.
In appointing judges to
lower federal courts,
presidents generally seek
support from the judicial
nominees’ home state
Senators.
senatorial courtesy:
the practice whereby the
president seeks the
indication that senators
from a judicial nominee’s
own state support the
nomination
Still, in recent years,
the relationship
between presidents
and the Senate has
been less than
courteous when it
comes to judicial
appointments.
A Republican-controlled Senate
delayed many of President
Clinton’s judicial nominees.
After 2001, Democrats used
their majority status and control
of the Judiciary Committee to
block several Bush appointees.
After they lost the majority,
minority party Democrats
filibustered Bush nominees.
President Bush’s nominations of
John Roberts for chief justice
and Samuel Alito for associate
justice both elicited Democratic
opposition (more so for Alito
than Roberts), though both won
confirmation to the Court.
The Power of Judicial Review
If the Constitution bequeathed the
Supreme Court “merely judgment,” in
Marbury v. Madison (1803) the Court
interpreted for itself the power of
judicial review.
Judicial review commonly refers to the Court’s power to
determine the constitutionality of laws passed by state
legislatures or the Congress, but it also extends to the
executive branch.
Although judicial review was used sparingly in the 19th
century, the Supreme Court’s ability to effectively veto acts
of Congress and the states is the basis for Court power in
the American separation of powers system.
As Congress has increasingly
delegated authority to
executive branch
departments and agencies,
federal courts increasingly
are called on to check that
the executive has correctly
and faithfully executed
Congress’s intent.
Since its 1984 decision in
Chevron v. National
Resource Defense Council,
the Supreme Court has
increasingly deferred to
executive branch
interpretations of statutes
except where Congress’s
intent and legislative
language are exceedingly
clear.
Presidential use of power is also subject
to judicial review.
President Bush’s antiterrorism initiatives
and extraordinary claims of presidential
powers have elicited judicial challenges in
the Supreme Court.
For example, in Hamdi v.
Rumsfeld, while upholding the
president’s essential claims to
power, the Supreme Court did
assert the right of the judiciary
to review and potentially
constrain presidential power.
The Court in Action
Both the increasing
power and expanding
jurisdiction of the
federal judiciary have
made the management
of the judicial process
a central problem for
justices and judges.
How is the Court’s agenda
determined?
First, Courts must establish and
maintain standards of access to
the judiciary.
Parties must have standing to
sue and cases must involve an
actual and, more or less,
current controversy; that is,
cases cannot be moot.
Standing:
the right of an individual
or organization to initiate
a court case, on the basis
of their having a
substantial stake in the
outcome
Mootness:
a criterion used by
courts to screen cases
that no longer require
resolution
The Supreme Court must also decide
which cases are important enough for
it to hear.
The Supreme Court sets most of its
agenda by issuing writs of certiorari
by which 4 of the 9 justices vote to
review a lower court’s decision.
Insert Figure 15.3 here
Insert figure 15.4 here
Another important influence on the
Supreme Court’s agenda is the
solicitor general, the government’s
top lawyer who screens which cases
the government will appeal to the
Supreme Court.
More than half of the Supreme Court’s
workload consists of cases under the
direct charge of the solicitor general.
Litigants before the Court
prepare written briefs and
make oral arguments
before the justices.
Outside groups might also
submit amicus curiae
(“friends of the court”) briefs
in an attempt to weigh in on
the decision.
After argument,
Supreme Court justices
meet in conference to
discuss the case and
vote.
Once they have voted,
justices write opinions
explaining their legal
reasoning.
In most cases, the Supreme
Court issues a majority
opinion that is controlling.
Justices who disagree with
the judgment of the
majority often offer
dissenting opinions.
In rarer instances, no
majority may emerge and
justices write a plurality
opinion.
Justices who agree with the
ultimate conclusion but for
different reasons might
write a concurring
opinion.
Although majority opinions are controlling
and become precedents, the legal reasoning
set forth in concurrences and dissents are
important and may, in a later case, achieve
majority support and become the law of the
land.
For example, the reasoning in an important
dissent in Plessy v. Ferguson was affirmed a
half century later in Brown v. Board of
Education.
Judicial Power and Politics
Although the federal judiciary was
reputed to be the “least dangerous
branch,” in the 20th century, the
U.S. judiciary overcame several
traditional limitations to become
what some have complained is an
imperial judiciary.
•
•
Cannot exercise initiative
The rules of standing also limit the courts
•
Had the additional consequence of limiting the courts ability to forge
links with political and social forces
•
•
Relief to individuals, not broad social classes
limiting the courts ability to forge links with political and social forces
•
Depended on executive agencies
Traditional Limitations on Federal Courts
General
restraints
limited in the
character of
relief they
could provide
Courts lacked
enforcement
Federal Judges
are appointed
•
•
•
President and Congress can shape the composition of the federal courts
over time.
Congress controls the size and jurisdiction of federal courts
Courts obtain jurisdiction from constitutional statutes.
Result: through much of history the chief function the
federal courts has been to provide user support for executive
agencies legitimate acts of Congress
59
Two Judicial Revolutions
Substantive Revolution:
this refers to the court’s intervention and policy areas
such as school desegregation, legislative apportionment,
and criminal procedure
Additionally: obscenity law, abortion law, and voting rights law
all were fundamentally transformed by court decisions
Procedural revolution:
1. liberalization of standing to permit almost any group
to challenge the actions of administrative agency
2. Congress agent this by adopting section 1983 of the
US code – fee shifting
this had the impact of moving more and more
political controversies into the courts.
3. the creation of the class-action suit
4. the employment of structural remedies =
retaining jurisdiction of the case until the courts mandate
60
action implemented to its satisfaction
Expanded Notes: JR and PP

Hamdi v Rumsfeld




US citizen – can rebut factual assertions
President can declare a US Citizen an “enemy
combatant”
Can be tried before Military Tribunal
Hamdan v Rumsfeld


Tribunal rules violated federal law and treaties
Congress rewrote law: Military Commissions Act


Could NOT seek habeas corpus relief (Sec 7)
Boumediene v Bush – struck down this part of law
“the judiciary is beyond comparison the weakest of the
three departments of power.”
--Alexander Hamilton, Federalist #78
Judicial power is comparatively weak:
1. The judiciary lacks the capacity to enforce its decisions.
2. Insulated from political forces, the judiciary lacks “will.”
Structural changes in the judiciary alleviated some of
the traditional limitations on court power.
1.
2.
By liberalizing standing, the right to sue, the federal
courts have expanded the range of potential cases that
can be decided.
The Court achieved greater control over its agenda in
1925 when the “Judges Bill” passed by Congress gave
justices more discretion about whose cases they would
and would not take.
3.
4.
The increased use of class action lawsuits has allowed
the judiciary to provide generalized relief to groups
enhancing, in some respects, its ties to key groups and
constituencies.
Finally, justices and judges themselves have felt freer to
pursue their own political agendas, and so they are less
constrained by the prior belief that the Court should be
apolitical.
The Lochner Decision



Peckham and his fellow Justices reached the conclusion that the New York law was not
related "in any real and substantial degree to the health of the employees." Consequently,
they held that the New York law was not a valid exercise of the state's police powers.
Lochner's conviction was accordingly vacated.
The power of the courts to review legislative action in respect of a matter affecting the
general welfare exists only "when that which the legislature has done comes within the rule
that, if a statute purporting to have been enacted to protect the public health, the public
morals or the public safety, has no real or substantial relation to those objects, or is,
beyond all question, a plain, palpable invasion of rights secured by the fundamental law.“
The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.... Some of these
laws embody convictions or prejudices which judges are likely to share. Some may not. But
a Constitution is not intended to embody a particular economic theory, whether of
paternalism and the organic relation of the citizen to the state or of laissez faire. It is made
for people of fundamentally differing views, and the accident of our finding certain opinions
natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon
the question whether statutes embodying them conflict with the Constitution of the United
States.
WHAT DO YOU THINK?



Did the Supreme Court seize too much
power by claiming for itself the power
of judicial review?
What is the value of stare decisis? How
does it benefit U.S. law? How does it
legitimate courts as decision-making
institutions?
In what ways has the contemporary
judiciary become imperial?
Clicker Questions
Cases of _________ law are those in which the
government charges an individual with
violating a statute that has been enacted to
protect the public health, safety, morals, or
welfare.
A.
Criminal
B.
Civil
C.
Public
D.
All of the above
Clicker Questions
Which of the following is not a case in which the
federal courts would have jurisdiction?
A.
A case in which the U.S. government is a
party
B.
A case involving a treaty with another nation
C.
A case involving burglary of a house
D.
A case involving federal laws
Clicker Questions
The country is divided into ____________
regional judicial circuits, each of which has a
U.S. Court of Appeals.
A.
12
B.
50
C.
94
D.
112
Clicker Questions
Parties in a case must show __________; that is,
they must show that they have a substantial
stake in the outcome of a case.
A.
Mootness
B.
Standing
C.
Cases and controversies
D.
All of the above
Clicker Questions
Justices who disagree with the majority decision
of the Court may choose to publicize the
character of their disagreement in the form
of a:
A.
Concurring opinion
B.
Dissenting opinion
C.
Non-consensus opinion
D.
Disagreeing opinion