VII.                  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.

                                                                i.      An informal rule of decision-making has been stare decisis: “let the decision stand.”

                                                               ii.      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.

                                                              iii.      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.

                                                                i.      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).

                                                               ii.      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.

                                                                i.      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.

                                                               ii.      The better reason is because it has gotten much easier to get into court, so there are more cases and more decisions.

                                                              iii.      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.