Although the Constitution does not stipulate as such, ther

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We the People 5th edition by Benjamin Ginsberg,
Theodore J. Lowi and Margaret Weir

• Chapter 15. The Federal Courts

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The Founding and the Federal Judiciary

• When Anti-Federalists 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.

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Alexander Hamilton

• 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

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Different Character

• The judiciary was constructed to have a wholly
  different character from the Congress and 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.
• And, as non-elected officials, judges and
  justices have more leeway to protect minority
  rights and interests.

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Limitations

• Courts also have structural limitations that
  legislatures and executives do not.

• Traditionally, courts cannot provide general
  relief to constituencies they can only provide
  specific relief to litigants.

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Limitations, cont.

• 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.

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Limitations, cont.

• Despite these traditional limitations, the
  American judiciary has become very influential in
  American politics and society.

• The proper role of the American judiciary is a
  subject of continuing controversy in American
  politics as, during the 20th century, liberals
  have generally defended judicial activism while
  conservatives have decried it.

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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?

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The Legal System Cases and the Law

• criminal law
• defined The branch of law that deals 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
• defined A system of jurisprudence, including
  private law and governmental actions, to settle
  disputes that do not involve criminal penalties.
  (e.g., Smith v. Jones)

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Public Law

• A third category of law, public law, involves
  cases where one party seeks to argue that the
  issues involved concern the extent of
  governmental powers and/or the rights of
  citizens.

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Stare Decisis

• 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.

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The Legal SystemTypes 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 United States Supreme
  Court and state supreme courts) are the highest
  courts in a system and they usually serve
  appellate functions.

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Federal Jurisdiction

• Most cases in the federal court system are
  handled by district courts which have original
  jurisdiction over most federal matters.

• original jurisdiction
• defined the authority to initially consider a
  case (as distinguished from appellate
  jurisdiction to hear appeals)

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Appellate Courts

• About 10 percent of cases in district court and
  federal agencies are accepted by higher courts
  for appeals.
• The Courts of Appeals are divided into 12
  judicial circuits.
• Court of Appeals decisions can be appealed to
  the Supreme Court.

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Article III

• Article III of the Constitution vests the
  judicial power of the United States in the
  United States Supreme Court.
• Although the Constitution does not stipulate as
  such, there are 9 Supreme Courts justices 8
  associate justices and the chief justice.

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Selection of Judges

• 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 Presidents
  decision and that of the Senate, both have
  important Constitutional roles to perform.

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The Power of the Supreme Court 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 .

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Judicial Review

• Judicial review is the Courts power to
  determine the constitutionality of laws passed by
  state legislatures and the Congress.
• Although judicial review was used sparingly in
  the 19th century, the Supreme Courts ability to
  effectively veto acts of Congress and the
  states is the basis for Court power in the
  American separation of powers system.

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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.

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Historic Perspective

• the judiciary is beyond comparison the weakest
  of the three departments of power.
• --Alexander Hamilton, Federalist 78
• Judicial Power was comparatively weak
• 1. The judiciary lacks the force to enforce its
  decisions.
• 2. Insulated from political forces, the judiciary
  lacks will.

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Structural Changes

• Structural changes in the judiciary alleviated
  some of the traditional limitations on court
  power.
• 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 what
  cases they would and would not take.

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Class Action Lawsuits

• 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,
  as such, they are less constrained by the prior
  belief that the Court should be apolitical.

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WHAT DO YOU THINK?

• Did the Supreme Court seize too much power by
  interpreting for itself the power of judicial
  review?
• What is the value of stare decisis? How does it
  benefit American law? How does it legitimate
  courts as decision-making institutions?
• In what ways has the contemporary judiciary
  become imperial?

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