Judiciary

1
Judiciary

• Evolved into having significant impact on public
  policy
• Selection of judges is political
• A small number of cases reach the SC
• Judicial activism is when judges interpret the
  constitution more broadly than those who believe
  in restraint.

2
Interpretation

• Founders probably did expect judicial review but
  not a big role in policy making.
• Activist look at the underlying principles not
  just the wording of the Constitution
• Warren Court of 50s and 60s was active in civil
  rights and rights of accused
• Brown 1954 equal protection integration
• Miranda 1966 arrested person must understand
  rights.
• Rehnquist court moved toward greater power for
  the states. Conservative view - Restraint

3
National Supremacy Slavery

• Marbury v Madison 1803 Judicial Review
• McCulloch v Maryland 1819
• Together they 1.judicial review,
• 2. federal law supreme over state law,
• 3. fed power could be interpreted broadly,
  especially in regard-interstate commerce
• Dredd Scott v Sanford 1857 blacks not citizens,
  prohibition of slavery in northern territories
  unconstitutional.

4
Government Economy SC Decisions1865-1936

• Usually against national control of economy
• Most court decisions protected private property
  in form of corporate control
• Injunctions to hurt labor unions
• Limit power to enforce antitrust laws against big
  companies thus limiting power of Interstate
  Commerce Commission
• BUT authorized regulations against railroads,
  mines, insurance companies

5
Federal Protection of Civil Liberties 1936 To
Present

• Let Congress regulate the economy
• Warren Court redefined relationship of citizens
  to government and protected rights of citizens
  over federal and state limits.
• Rehnquist Court has given states some ability to
  restrict abortions, affirmative action and other
  areas of Devolution

6
Selection of Federal Judges

• All nominated by P and confirmed by Senate
• P always nominates judge of his party
• Nominees usually are not extremists
• Often Senate delays on confirmations
• Senatorial Courtesy blue chip Sup Ct not
  included in Senatorial Courtesy
• Litmus test of ideological purity
• Nominees asked about judicial philosophy in the
  Judiciary Committee hearings

7
FEDERAL JURISDICTION

• Constitution Art 3 lists Federal Jurisdiction
• Cases involving Constitution, federal law and
  treaties (federal questions)
• Cases involving diff states or citizens of diff
  states
• Limited jurisdiction for Supreme Ct nearly all
  on appeal. Rarely Original
• Writ of cert made more certain - we will hear
  the case. Rule of 4

8
What will the SC take on?

• Involving a significant federal question like
  Bush v Gore
• Involving conflicting decisions from difference
  FEDERAL circuit courts
• Containing a constitutional interpretation by a
  state supreme court regarding state or federal
  law. Do these laws violate the federal
  Constitution?

9
Is the SC undemocratic?

• Rejects all but a few applications each yr.
• They are not elected and stay for life
• Costs to get a case up there are high
• Court does not hear class action lawsuits since
  1975 unless all parties are notified
• Recent Congressional action has put more class
  action suits in Fed. Court away from more
  sympathetic state courts

10
Checks on Judicial Power

• Congress checks federal courts
• Confirmation hearings
• Impeachment proceedings
• Can change of judges
• Revising legislation can get around decisions
• Jurisdiction can be revised
• Amending the Const can get around decisions

11
Checks on Judicial Power

• President can check the Courts
• Appointment of judges and justices
• Allowing Bureaucracy to drag feet on judicial
  decisions e.g. Justice Dept may not bring
  proceedings against a segregated school dist.

12
Judiciary Checks POTUS Cong.

• Judiciary checks POTUS
• Declaring executive decisions or regulatory
  agency decisions unconstitutional
• Making decisions that conflict with Ps policy
• Judiciary checks Congress
• Declaring laws passed by Congress to be
  unconstitutional
• Making decisions that give more power to the
  state governments (devolution)

13
TERMS

• Judicial review strict constructionist
• Activist Constitutional court
• District court FCCA
• Legislative court litmus test
• Diversity cases fed question cases
• Civil law criminal law
• Wrti of certiorari in forma pauperis

14
More Terms

• Fee shifting plaintiff standing
• Sovereign immunity class-action suit
• Written brief amicus curiae remedy
• Per curiam opinion (unsigned) opinion of the
  court
• Concurring opinions dissenting opinions
• Stare decisis political questions
• Majority opinion