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Chapter 14 - The Judiciary

  1. Introduction
    1. The United States Supreme Court has become such an important branch be it can declare acts of legislation unconstitutional (called judicial review), thereby voiding them.
      1. In Britain, the Parliament is supreme, and no court can overturn laws.
    2. Judicial review is no longer really controversial, but the two ways of doing it are:
      1. Using a strict-constructionist approach, a judge uses only what is written in the Constitution in judging if a law is right or not.
      2. Using an activist approach, a judge relies on his own opinions and philosophies in addition to what is written in the Constitution.
      3. An activist judge is not necessarily liberal and a strict-constructionist judge is not necessarily conservative; liberals can be strict-constructionists and vice versa.
      4. 50 yrs ago, activists tended to be conservative and vice versa, but today, the opposite is true.
  2. The Development of Courts
    1. The Founders probably wanted the Supreme Court to have some sort of judicial review, but they never expected the Court to grow as powerful as it is today.
      1. The rise of judicial activism occurred when judges questioned the traditional view of simply finding and applying existing law (instead of doing what the judge felt right) and acted on that.
    2. In Federalist No. 78, Alexander Hamilton wrote that the Court was “least dangerous” to political rights and clearly stated that the Supreme Court was intended to decide the Constitutionality of a law, but that such a power would confine the legislature, not strengthen the courts.
    3. The Court has been shaped by the major eras of the country (1787-1865: establishing country’s legitimacy; 1865-1937: relationship b/t gov’t and econ.; 1937-present: personal liberty issues).
    4. National law is supreme and can override state law, but this was not established until two cases, Marbury v. Madison and McCulloch v. Maryland occurred.
      1. In 1803, William Marbury had been one of the midnight judges who had not received his judgeships, and when he filed suit for it, Chief Justice John Marshall feared that if he ordered James Madison to deliver the judgeship, he’d refuse, and there’d be a Constitutional crisis, so he said that the Judiciary Act of 1789 that had indirectly allowed Marbury to be able to get a judgeship was unconstitutional and was void; thus, he solved the problem AND strengthened the court’s power.
      2. When the state of Maryland tried to tax the Bank of the United States, Marshall ruled (in 1819) that it could not do that, since the federal gov’t was above the state gov’t.
    5. In 1816, the Supreme Court rejected the Virginia courts’ claims that it couldn’t review state decisions, saying that it indeed could do that because it was supreme above all.
    6. The Supreme Court also established the power to regulate interstate commerce (though the problem later turned into what exactly was interstate commerce and what wasn’t), all under John Marshall.
    7. One of the most destructive decisions from the Supreme Court, however, came when Chief Justice Roger Taney rejected Dred Scott’s claim that, since he had been taken to a free state by his master, he was thus free by saying that black slaves weren’t citizens and couldn’t become so and that the Missouri Compromise was unconstitutional.
    8. During the years when the Court was trying to decide how gov’t should treat the economy, it showed a strong through not unbending attachment to private property.
      1. After the Court adopted the view of the 14th Amendment, which stated that no state shall “deprive any person of life, liberty, or property, without due process of law,” and let companies and corporations be “persons” as well, it received numerous cases and began ruling on the constitutionality of every gov’t action towards the economy.
      2. It often upheld the use of injunctions to prevent labor strikes, struck down the federal income law, sharply limited the antitrust law, restricted the railroad rates setting powers of the Interstate Commerce Commission, prohibited the fed. gov’t from banning child labor, and other things, but it also did allow some regulatory measures to stay.
      3. At one point, the 14th and 15th Amendments were so narrowly construed that they hurt blacks rather than helped them!
    9. The Supreme Court changed its private property attachments in 1937, after the Court-Packing Controversy passed and Justice Owen Roberts began voting the opposite way on new bills.
      1. President Franklin Roosevelt had tried to pass a bill that would let him add a new justice for every justice already over the age of 70 who didn’t retire, so that he would eventually have eight out of 15 justices that supported him, but that failed.
      2. With the arrival of Earl Warren as chief justice, the Court took on its most activist period yet, passing many decisions that protected the rights and liberties of all citizens—white or colored.
    10. Recently, the Court has begun to make decisions that have allowed states to maintain some power, so that federal laws do not always naturally overrule state laws.
      1. It declared the Gun-Free Schools Zone Act unconstitutional because Congress “didn’t have the right to regulate whether a gun was carried near a school or not.”
  3. The Structure of the Federal Courts
    1. Only the Supreme Court is referred to in the Constitution, but other federal courts are not mandated.
    2. Still, Congress has created constitutional courts (which exercise powers found in Article III of the Constitution, and have their judges serve for life) that include 94 district courts and eleven courts of appeals (there’s one in Washington, D.C. too).
      1. A legislative court is set up by Congress for some special purpose, and the people who work under them (including judges) have fixed office terms and can be removed or have their salaries lowered at will, unlike employees in constitutional courts.
    3. All constitutional court judges are nominated by the president and approved by the Senate.
      1. Political ideology does play a part in selection, but not that major of one.
    4. The tradition of senatorial courtesy allows senators to control who serves in their states; the Senate won’t approve a district judge if the senior senator from the state in which he is to judge objects by either not submitted a “blue slip” or by rejected the judge on that slip.
    5. The latest presidents have tried to get more judges who support their ideas (Carter chose more blacks and women; Reagan chose more conservative, strict-constructionist ones).
      1. They have done this through the “litmus test,” where a potential judge is asked a series of questions to determine his political inclinations and then chosen or rejected based on that.
      2. Some people call that unfair, and some judges have purposely answered vaguely to counteract the “litmus test,” saying that they haven’t made up their decisions on those topics yet.
      3. The Supreme Court nominations have no senatorial courtesy traditions, so the fight is simply between the president and the Senate over who should serve or not.
      4. Senators will usually reject a judge because of nominees’ alleged hostility to civil rights, questionable financial dealings, past controversy, and/or opposing political philosophy.
        1. Of course, some senators have supported notorious judges and then lost elections.
  4. The Jurisdiction of the Federal Courts
    1. Federal courts can hear cases “arising under the Constitution, the laws of the United States, and treaties” (federal-question cases) and cases involving citizens of different states (diversity cases).
      1. The rest is supposedly left up to the state courts, but some cases can be heard by either one.
        1. If a person breaks a state and federal law, sues a person from another state for over $50,000, or robs a federally insured bank, for example.
        2. Lawyers often pick the court that will give their most desired outcome.
      2. Some people are tried under both courts (i.e. the cops that beat Rodney King were tried in a state court under criminal charges of assault and in a federal court for civil rights violations).
        1. This is because the dual sovereignty doctrine of the courts allows each level of the courts to enact laws serving its own purposes and because the right must be reserved to prosecute a criminal, even if he has the sympathies of one court.
      3. State court appeals go to the federal courts, though, as do violations of federal laws, declaring bankruptcy, and inter-state disputes.
    2. Most federal court cases begin in state courts, are appealed, and then eventually selected by the Supreme Court via a writ of certiorari.
      1. Writs of certiorari are often granted when two+ federal appeals courts have decided differently and/or there is a claim that a law violates the Constitution.
    3. The Supreme Court’s problem is that giving seeing too many cases swamps it with work, but seeing too few lets lower federal courts make final decisions on the interpretation of the Constitution and on federal laws, and since there are twelve of them, they might (and have) disagree.
  5. Getting to Court
    1. Anyone can technically get their case up to the highest federal courts, but in truth, the Supreme Court rejects over 96% of the cases it sees, and the costs of getting a case up is huge, with all the fees that must be paid, plus, settling time is often long.
    2. The cost can be cut, though, by filing a case in forma pauperis (that is, appearing as a pauper and having the case heard for free), or, if a poor person in a criminal case can’t afford a lawyer, the federal gov’t will give him one for free, or, if it’s not a criminal case, special interest groups might give a lawyer.
      1. Special interest groups often do more than just provide an attorney, they take up cases for people and support them all the way through!
    3. In Europe, a person who sues another and loses must pay the fees of both people, but in the U.S., each person pays his own fees; it’s gotten easier, though, to get the other person to pay via fee shifting, where a plaintiff can get the defendant to pay for its lawyer fees, etc… in certain kinds of cases.
      1. Usually, the fee-paying loser is usually a corporation or the fed gov’t, which can afford to pay.
    4. To sue, a person must have standing, a concept which prevents frivolous, stupid cases:
      1. There has to be a real controversy (not just a friendly bet between two people, etc…).
      2. It must be shown that the person suing was actually harmed by a practice.
      3. Just because one pays taxes doesn’t mean he can challenge the constitutionality of something.
    5. To sue the gov’t, one must have its permission (i.e. if the army tests a cannon and kills one’s cow, he can’t sue the gov’t unless the gov’t says OK) ; this is called the doctrine of sovereign immunity.
    6. Sometimes, a person can benefit from a case decision without actually having gone to court due to the fact that it was a class-action suit—it was filed not just for one person but on behalf of a whole group or race of people (i.e. Brown v. Board of Education, which led to desegregation for all blacks).
      1. Since 1960, the gov’t has made class-action lawsuits more financially rewarding for lawyers, since millions of dollars can be at stake if the case is on behalf of enough people.
      2. The Supreme Court then, in 1974, tried to limit such cases (because there was a mushrooming of them) by saying that any suit seeking monetary damages must have every member of the suit identified (that can be expensive), and thus, the number of class-action suits has drop.
    7. In general, one needs standing and resources to get a case to federal court, but recent changes have made it easier to get both.
  6. The Supreme Court in Action
    1. In an actual Supreme Court case, the nine justices hear briefs (information, facts, and statements about the case) and then hear arguments from each lawyer—usually for no more than 30 minutes.
    2. Because the U.S. gov’t is a plaintiff or defendant to about half of the cases that the Supreme Court hears, the U.S. solicitor general (the 3rd-ranking member of the Department of Justice) often appears.
      1. He approves every case the gov’t presents to the Court and decides what cases the gov’t appeals from the lower courts.
    3. Sometimes, amicus curiae may be filed as a brief from an interested but not directly affected third party or group, but the Court must first grant permission for these briefs to be filed.
    4. Justices also consult legal periodicals like the Harvard Law Review and the Yale Law Journal (thus letting outside sources influence decisions), and on Fridays, they retire to the conference room, where they secretly deliberate, with the each judge giving his opinions in order of seniority and then the judges voting in order of reverse-seniority.
      1. A majority is needed for a decision, and in ties, the lower court’s decision stands.
      2. The Court also traditionally issues an opinion explaining its rulings (if it’s short and unsigned, it’s called a per curiam opinion) in one of three forms:
        1. An opinion of the Court explains the winning side’s views.
        2. A concurring opinion explains the views of a member of the winning side who chose that side for different reasons.
        3. A dissenting opinion explains the views of the losing side.
    5. Justices often vote similarly, and there are some rather clear voting blocs that arise:
      1. In the 1970s/80s, there were often three such blocs—a liberal/activist bloc, a conservative/strict-constructionist bloc, and a swing bloc (the liberal bloc was usually the minority, but it sometimes got enough votes from the swing bloc to win its way).
      2. Today, the Court remains deeply divided, with its justices voting differently depending on the case or subject matter.
      3. Of course, justices often do agree because many cases don’t have a liberal or conservative side; besides, what should count is the quality of the judges’ reasoning, not politics.
  7. The Power of the Federal Courts
    1. While most federal court cases don’t change public policy (they’re criminal cases, etc…), those that do involve the reinterpretation of the Constitution.
    2. A perhaps more revealing measure of power than just the number of laws that have been declared unconstitutional (120) is how many times the Court changes its mind.
      1. An informal rule of decision-making has been stare decisis: “let the decision stand.”
      2. This follows the idea of precedent, which is important because without similar interpretations of laws, there’d be erratic and unpredictable behavior by the judges, and because the principle of equal justice demands that similar cases be decided in similar manners.
      3. Of course, times do change, and that could be one reason why the Court has later overruled its own decisions over 140 times since 1810.
    3. One can also measure judicial power by seeing how many cases of political question (a case to be decided by another branch of gov’t) it actually takes.
    4. The most powerful way of measuring judicial power can be found in the kinds of remedies, or an order of what is to be done to correct a situation a judge feels is wrong, that the courts will impose.
      1. Some remedies are simple (one person pays another), but others are sweeping and involve many people (like ordering the state prison system to be improved).
      2. Remedies can be based on one’s interpretation of the Constitution or of federal laws.
    5. Supporters of judicial activism say that it’s the last place where injustices in the other two branches can be corrected, while critics say that judges have no special expertise on such matters, and if they don’t always make careful, cautious decisions, they could become unelected legislators.
      1. Some say that the courts have grown powerful because there are so many lawyers, but lawyers don’t make cases, contending interests make cases, and the U.S. had more lawyers in relation to its population in 1900 than in 1970, but in 1900, the courts were weaker than in 1970.
      2. The better reason is because it has gotten much easier to get into court, so there are more cases and more decisions.
      3. Also allowing more liberal decisions are the vague language of the Constitution and of recent laws that are passed, new laws that induce litigation, and judges’ opinions and attitudes.
  8. Checks on Judicial Power
    1. Judges aren’t elected, but that doesn’t mean they have no checks; they have no police or army, so their decisions can’t be enforced unless other enforce them for the courts.
      1. Decisions are usually resisted if doing so is easy and capture and prosecution is not imminent (school segregation, no praying or Bible reading in public schools, etc…).
      2. If resistance will easily lead to prosecution, then decisions are quickly followed.
    2. Confirming different judges and impeaching them is another tool that Congress can use over judges.
      1. It can also increase/decrease the number of judges to let a president appoint judges that support him and his views or undo a Supreme Court decision on a law or amendment by changing, or rewriting that law or amendment (only the 11th, 13th-16th, and 26th Amendments have accomplished this).
      2. Congress can also decide what the entire jurisdiction of a lower court and appellate jurisdiction (hearing cases passed up from lower courts) of the Supreme Court is.
        1. Theoretically, Congress can ban the Court from hearing whatever case Congress doesn’t want it to hear.
        2. Simply the threat of this may have changed decisions sometimes.
      3. Of course, sometimes, denying the Court the right to decide on a case is tricky, because wording can be used against a legislator, and if he goes too far, then the public is against him.
    3. The courts do heed public opinion, even though their members are not elected, and they’ll keep in mind cases (*cough* Dred Scot cough) when ignoring public opinion nearly destroyed the Court’s legitimacy.
      1. Opinion can restrain and also energize the courts to do action.
    4. Public approval of the courts seems to parallel public approval of gov’t itself.
    5. Nixon and Reagan tried to create a conservative court by selecting such justices, and they somewhat succeeded, but some cases have gone against the expected.
    6. Judicial activism has basically grown because gov’t has grown, and because more and more people accept it today than in the past.
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