Judiciary

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Judiciary

• POSC 121
• Braunwarth

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(No Transcript)
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Displacement of Political Conflict

• Scarcely any political question arises in the
  United States that is not resolved, sooner or
  later, into a judicial question. (Alexis de
  Tocqueville, 1835)
• This is a primary source of judicial power
• This is particularly true for controversial
  issues and when a minority suffers at the hands
  of the majority
• Abortion, Civil Rights, Criminal Rights, etc.

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Constitutionalism

• Founders wanted to make sure that no leader took
  on too much power
• Created a fundamental law that cant be
  transgressed
• Constitution protects our popular sovereignty
• But there is no mechanism in the Constitution to
  ensure that it is followed
• This was determined through the decision of
  Marbury v. Madison

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Marbury v. Madison, the roots of Judicial Review

• A minor Federalist judicial appointee, William
  Marbury (right)
• Sued the Jeffersons Anti-Federalist Secretary of
  State James Madison for his appointment
• Chief Justice of the Supreme Court, Federalist
  James Marshall, is in a tough position.
• If he rules for Marbury he looks partisan and
  weak, especially if Jefferson ignores the ruling.
  
• If he rules for Madison, the court looks
  subservient to the executive branch.
• In a brilliant legal maneuver, Marshall declared
  the entire case to be Unconstitutional because
  Sect. 13 of the Judiciary Act of 1789
  unconstitutionally expanded the Courts scope of
  Original Jurisdiction
• Thus expanding the Courts power of Judicial
  Review

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Power of Judicial Review (Saffell article)

• Judicial Activism When the courts use the power
  of Judicial Review to reshape laws
• Judicial Restraint Interpreting the Constitution
  strictly and deferring to the elected branches
  when possible
• Some arguing for restraint, contend that justices
  should follow the original intent of the
  framers of the Constitution
• Whats the argument against original intent?
• That times have changed and those arguing for
  original intent want to turn back the clock
• Why does the Court occasionally need to act in an
  activist manner?
• They may be protecting unpopular groups
• Legislators may be beholden to the tyranny of the
  local majority

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Justifying Countermajoritarian Power

• Shortly after the Supreme Court has made a
  controversial and widely unpopular decision on
  the rights of criminal suspects, a justice agrees
  to a television interview. The justice sets out
  to justify to the public the Courts enormous
  power and lack of accountability.
• Write a script for the justice. How will the
  justice explain the Courts countermajoritarian
  role? How will the justice justify the Courts
  secrecy and lack of direct accountability?

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Countermajoritarian Power

• The system is designed to ensure that justices do
  NOT answer to the majority, why?
• Job is to defend the Constitution, which protects
  all of us
• Should not be swayed by the passions and
  prejudices of the majority
• They have the expertise
• Were appointed and approved by elected officials
• Only way to protect the minority

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Judicial Mechanics

• Many more cases are appealed to the Supreme Court
  than the court can possibly hear
• Decide to hear cases by the rule of four
• The federal Solicitor General can request that
  the court hear cases important to the executive
  branch
• Typically only hear cases that deal with
  fundamental constitutional principles and affect
  large numbers of people
• Supreme Court decisions establish precedent
  (stare decisis) for all future cases

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Judicial Selection

• How are Federal Judges selected?
• By the President and approved by the Senate
• Important power because gives the President a
  chance to have an impact beyond his term of
  office
• They thus choose someone of similar ideology
• But judicial ideology may evolve later
• Appointments have become increasingly political
• President Bush has been criticized for making
  very conservative appointments

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California Court System

• Similarly organized as the U.S. system
• Operates independently of the national system
• First level of trial courts are known as Superior
  Courts
• Vast majority of cases are decided by plea
  bargain.
• Only way to deal with the massive caseload
• Some concerned people get off too easy
• Others concerned innocent may admit guilt to
  lesser charge rather than chance a trial