declare laws of congress or presidential decisions unconstitutional Senate is tougher on conservatives for the Supreme Court o Equal toughness for appeals court 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
unconstitutional 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 circumstances Activists tend to be liberals and vice versa
Development of the Federal Courts
Hamilton said the judiciary is the least
dangerous 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 commerce 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 o
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 regulation 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
constitution 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 trials 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 circuit 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 3 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 regulation Most come from lower-ranking judgeships Few come from direct private law practice
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 circumstances 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 treaties Federal question cases o Also diversity cases which involve citizens of different states 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 unconstitutional
Getting to Court
96% of supreme court cases are
rejected 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
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 government 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 party 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 remains Per curiam opinion is a brief unsigned court opinion o Chief justice writes it if he agrees 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 minority 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 unconstitutional
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 decide 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 began
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 criminals
Court is checked by having no way to
enforce laws
Fifteen judges have been impeached,
only 4 convicted Congress can change the size of courts 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 constructionists Government has grown in size as has the courts power Judges are becoming more activist
United States of America and Robert G. Roche, Special Agent, Internal Revenue Service v. Earl L. Erdner, As President of Earl L. Erdner, Inc., 422 F.2d 835, 3rd Cir. (1970)