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Chapter 16 The Judiciary

Constitution doesnt say courts can

declare laws of congress or
presidential decisions unconstitutional
Senate is tougher on conservatives for
the Supreme Court
o Equal toughness for appeals
Senators can file a blue slip against
appeals court nominees from their
home states to prevent a hearing on
the nominee

Judicial Review

Right of the courts to declare a law

Judicial restraint approach is that
judges should decide cases on the
basis of the constitution
Activist approach says judges should
discern the general principles
underlying laws or the constitution
and apply them to modern
Activists tend to be liberals and vice

Development of the Federal Courts

Hamilton said the judiciary is the least

1787-1865 court asserted supremacy
of federal government
1865-1937 court placed restriction on
the governments powers
1938-now enlarged personal freedom,
narrowed economic freedom

National Supremacy and Slavery 17871865

Marbury v. Madison on the matter of

midnight appointments
o Marshall said Madison should
give the appointments, but he
didnt have the authority to
force him to with a writ
o Said Judiciary Act of 1789 giving
the writ power was
unconstitutional, established
judiciary review
McCullouch v. Maryland federal law is
supreme and states cant tax the
federal government

Creating a national bank is

allowed due to necessary and
proper clause
Martin v. Hunters Lessee Supreme
court can review decisions of the
highest state courts if they involve
federal law or the constitution
Established ability to review state
decisions and regulate interstate
Taney was chief justice after Marshall
Taney ruled in the Dred Scott case
o Said blacks werent citizens and
could not become so
o MO compromise prohibiting
slavery in northern territories
was unconstitutional

Government and the Economy 18651937

No state shall deprive any person of

life, liberty, or property, without due
process of law
Upheld injunctions to prevent labor
strikes, struck down federal income
tax, prohibited the elimination of child
labor, no maximum work hours
Supportive of the rights to private
property but unsure as to the lines of
Upheld segregation, gave blacks very
few rights
Ex parte McCardle let Congress
change the appellate jurisdiction of
the supreme court

Government and Political Liberty 1938now

Stopped worrying about business and

went to personal liberties
FDR wanted to pack the court so his
programs could be passed (the court
had been against them)
o Law stopped because Owen
Roberts switched his vote to
pass the plans
Chief Justice Earl Warren brought an
active period 1953

The Revival of State Sovereignty

Until the nineties most laws let the

federal government control almost all
economic activity

Structure of the Federal Courts

Only Supreme Court required in the

Originally six justices, now 9
Constitutional court keeps judges in
office during good behavior and
prevents their salaries from being
reduced, they are the supreme court
and appellate and district courts made
by congress
o District courts are the lowest of
federal courts, hold federal
94, with at least one in
each state
o Courts of appeals are federal
courts that hear appeals from
district courts
One in each of 11
regions, DC, federal
o There are some special
constitutional courts like the
Court of International Trade
Legislative court is set up by congress
for specialized purposes whose judges
do not have the protections of Article
o Includes Court of Military
Appeals and territorial courts

The Jurisdiction of the Federal courts

Selecting Judges

Liberal decision favors civil rights

criminal defendants, economic
Most come from lower-ranking
Few come from direct private law

Senatorial Courtesy

Senatorial courtesy gives heavy

weight to the preferences of the
senator from the state where a federal
district judge is to serve
Blue slip records a senators opinion
on the nominee

The Litmus Test

Litmus test is an examination of the

political ideology of a nominated judge
Only about 40% of nominees are
approved nowadays
View on abortion is the most
prominent reason for a litmus test
Gang of Fourteen said they would
block a filibuster on a nominee unless
there were extraordinary
36 supreme court nominees havent
been approved

11th amendment article 3 says what

cases federal courts can hear
o All cases arising under the
constitution, laws of the US, and
Federal question cases
o Also diversity cases which
involve citizens of different
Some cases can be tried in either
federal or state courts
Sovereignty doctrine lets state and
federal authorities prosecute someone
for the same conduct
o Each level of the government
has the right to enact laws
o Neither level of government
wants the other to be able to
block prosecution of an accused
person who has the sympathy
of authorities at one level
Crime in the state court can be
appealed to the supreme court in
certain cases
Federal criminals, appeal of a federal
agency, bankruptcy, state government
disputes are held in federal courts
Supreme court can pick whatever
appeals it wants to listen to
Writ of certiorari is an order by a
higher court directing a lower court to
send up a case for review
o Four justices must agree
o Often used when two federal
circuit courts of appeals vote
different ways or a states
highest court votes a law

Getting to Court

96% of supreme court cases are

In forma pauperis is a method where a
poor person can have their case heard
in a federal court for free
Criminal case gets a free lawyer

Fee Shifting

In England loser of a case pays

winners costs
Fee shifting lets a plaintiff recover
costs from the defendant if the
plaintiff wins
Plaintiff initiates a lawsuit


Standing is a legal rule stating who is

authorized to start a lawsuit
Must be an actual controversy
Must show harm from law or practice
Being a taxpayer isnt enough to
challenge the constitutionality of the
federal government
Must get the governments consent to
sue the government
o Sovereign immunity

Class-Action Suits

Class-action suit is brought up by

someone to help himself and others
Brown v. Board of Education let all
blacks attend unsegregated schools
Lawyers get part of the settlement,
because of this the number of classaction suits has increased
Supreme court wont hear a case
about monetary damages unless
every member of the class is notified
of the case
o Very expensive to do
o Not require in state courts
Nowadays its easier to challenge the
government, cheaper due to fee
shifting, private interest groups
financing cases, and class-action suits
that lawyers like due to the possibility
of a profit

The Supreme Court in Action

Supreme court is in session from

October till June
Briefs are submitted by the lawyers
containing facts, summary of the
lower court decision, and arguments
Lawyers present their open arguments
a t a lectern with a strict time limit
Solicitor general of the US defends the
o Decides which cases to appeal
Amicus curiae is a brief submitted by a
friend of the court
o Amicus brief submitted by an
interested but not involved
o Influence the courts decision
Legal periodicals are cited in decisions
While discussing verdicts, chief justice
speaks first then seniority
While voting newest justice goes first,
chief justice last
With a tie the lower courts decision
Per curiam opinion is a brief unsigned
court opinion
o Chief justice writes it if he
Opinion of the court is a signed
opinion of a majority
Concurring opinion is a signed opinion
where members agree with the
majority view but for different reasons
Dissenting opinion is signed by the
40% cases unanimous
Conservative justices: Alito, Scalia,
Roberts, Thomas
Liberal Justices: Breyer, Ginsburg,
Kagan, Sotomayor
Swing vote: Kennedy
o Conservative on criminal law,
social liberal

The Power to Make Policy

Majority of federal cases dont change

any laws
Courts make policy when the
constitution is reinterpreted or laws
are extended
More than 160 laws have been voted

Stare decisis lets prior rulings control a

current case
Courts used to be reluctant to handle
cases about legislature
Political question is an issue the
supreme court lets the other branches
Remedy is a judicial order enforcing a
right or addressing a wrong
o EX: Alabama prison decision
redesigned entire prison system
o Chinese people must be taught
English everywhere, not just
San Francisco where the case

Checks on Judicial Behavior

Congress and the courts

View of Judicial Activism

Critics say judges arent

knowledgeable enough to design and
manage institutions
Implementing rulings is costly
Judges are unelected legislators
One lawyer for every 325 Americans
Civil rights and prisoner petitions are
the fastest growing

Legislation and the courts

Vague language leaves a lot for the

court to interpret
Judges opinions play a large part
when laws are vague
o Often seen in sentencing

Court is checked by having no way to

enforce laws

Fifteen judges have been impeached,

only 4 convicted
Congress can change the size of
Congress can amend the constitution
to undo a supreme court decision
Congress can decide the jurisdiction of
the lower courts and appellate
jurisdiction of the Supreme Court
o Used this in the McCardle case
when an editor tried to get out
of jail during reconstruction,
Congress removed Supreme
Court appellate jurisdiction for
these sorts of cases

Public Opinion and the Courts

Popular support for the supreme court

often declines
Nixon and Reagan appointed strict
Government has grown in size as has
the courts power
Judges are becoming more activist