Chapter Sixteen The Judiciary Judicial Review Judicial review

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Chapter Sixteen The Judiciary

Chapter Sixteen The Judiciary

Judicial Review • Judicial review: the right of the federal courts to rule on

Judicial Review • Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions • It is the chief judicial weapon in the checks and balances system Copyright © Houghton Mifflin Company. All rights reserved. 16 | 2

U. S. District and Appellate Courts Administrative Office of the United States Courts (January

U. S. District and Appellate Courts Administrative Office of the United States Courts (January 1983). Copyright © Houghton Mifflin Company. All rights reserved. 16 | 3

Constitutional Interpretation • Strict construction: judges are bound by the wording of the Constitution

Constitutional Interpretation • Strict construction: judges are bound by the wording of the Constitution • Activist: judges should look to the underlying principles of the Constitution • Today, most strict constructionists tend to be conservative, most activists tend to be liberal Copyright © Houghton Mifflin Company. All rights reserved. 16 | 4

Development of the Federal Courts • Most Founders probably expected judicial review but did

Development of the Federal Courts • Most Founders probably expected judicial review but did not expect the federal courts to play such a large role in policy-making • But the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces Copyright © Houghton Mifflin Company. All rights reserved. 16 | 5

National Supremacy • Marbury v. Madison (1803): The Supreme Court could declare a congressional

National Supremacy • Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional • Mc. Culloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law Copyright © Houghton Mifflin Company. All rights reserved. 16 | 6

1865 to 1936 • The Supreme Court was supportive of private property, but could

1865 to 1936 • The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business • The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states Copyright © Houghton Mifflin Company. All rights reserved. 16 | 7

1936 to Present • The Court establishes tradition of deferring to the legislature in

1936 to Present • The Court establishes tradition of deferring to the legislature in economic regulation cases • The Warren Court provided a liberal protection of rights and liberties against government trespass Copyright © Houghton Mifflin Company. All rights reserved. 16 | 8

Selecting Judges • Party background has a strong effect on judicial behavior • Appointees

Selecting Judges • Party background has a strong effect on judicial behavior • Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U. S. district courts) Copyright © Houghton Mifflin Company. All rights reserved. 16 | 9

Selecting Judges • Presidents seek judicial appointees who share their political ideologies • This

Selecting Judges • Presidents seek judicial appointees who share their political ideologies • This raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmations Copyright © Houghton Mifflin Company. All rights reserved. 16 | 10

Figure 16. 1: Female and Minority Judicial Appointments, 1963 -2003 Updated from Harold W.

Figure 16. 1: Female and Minority Judicial Appointments, 1963 -2003 Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003 -2004 (Washington, D. C. : Congressional Quarterly, 2003), table 7. 5. Copyright © Houghton Mifflin Company. All rights reserved. 16 | 11

Figure 16. 1: Female and Minority Judicial Appointments, 1963 -2003 Updated from Harold W.

Figure 16. 1: Female and Minority Judicial Appointments, 1963 -2003 Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003 -2004 (Washington, D. C. : Congressional Quarterly, 2003), table 7. 5. Copyright © Houghton Mifflin Company. All rights reserved. 16 | 12

Figure 16. 1: Female and Minority Judicial Appointments, 1963 -2003 Updated from Harold W.

Figure 16. 1: Female and Minority Judicial Appointments, 1963 -2003 Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003 -2004 (Washington, D. C. : Congressional Quarterly, 2003), table 7. 5. Copyright © Houghton Mifflin Company. All rights reserved. 16 | 13

Federal Cases • Federal question cases: involving the U. S. Constitution, federal law, or

Federal Cases • Federal question cases: involving the U. S. Constitution, federal law, or treaties • Diversity cases: involving different states, or citizens of different states Copyright © Houghton Mifflin Company. All rights reserved. 16 | 14

Federal Cases • Some cases that begin in state courts can be appealed to

Federal Cases • Some cases that begin in state courts can be appealed to the Supreme Court • Controversies between two state governments can only be heard by the Supreme Court Copyright © Houghton Mifflin Company. All rights reserved. 16 | 15

Writs of Certiorari • Requires agreement of four justices to hear the case •

Writs of Certiorari • Requires agreement of four justices to hear the case • Involves significant federal or constitutional question • Involves conflicting decisions by circuit courts • Involves Constitutional interpretation by one of the highest state courts Copyright © Houghton Mifflin Company. All rights reserved. 16 | 16

Standing to Sue • There must be a real controversy between adversaries • Personal

Standing to Sue • There must be a real controversy between adversaries • Personal harm must be demonstrated • Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved Copyright © Houghton Mifflin Company. All rights reserved. 16 | 17

The Supreme Court in Action • Most cases arrive through a writ of certiorari

The Supreme Court in Action • Most cases arrive through a writ of certiorari • Lawyers then submit briefs that set forth the facts of the case, summarizes the lower court decision, gives the argument of that side of the case, and discusses other issues • Oral arguments are given by lawyers after briefs are submitted Copyright © Houghton Mifflin Company. All rights reserved. 16 | 18

Kinds of Court Opinions • Per curiam: brief and unsigned • Opinion of the

Kinds of Court Opinions • Per curiam: brief and unsigned • Opinion of the court: majority opinion • Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning • Dissenting opinion: minority opinion Copyright © Houghton Mifflin Company. All rights reserved. 16 | 19

Arguments for Judicial Activism • Courts should correct injustices when other branches or state

Arguments for Judicial Activism • Courts should correct injustices when other branches or state governments refuse to do so • Courts are the last resort for those without the power or influence to gain new laws Copyright © Houghton Mifflin Company. All rights reserved. 16 | 20

Arguments Against Judicial Activism • Judges lack expertise in designing and managing complex institutions

Arguments Against Judicial Activism • Judges lack expertise in designing and managing complex institutions • Initiatives require balancing policy priorities and allocating public revenues • Courts are not accountable because judges are not elected Copyright © Houghton Mifflin Company. All rights reserved. 16 | 21

Checks on Judicial Power • Judges have no enforcement mechanisms • Confirmation and impeachment

Checks on Judicial Power • Judges have no enforcement mechanisms • Confirmation and impeachment proceedings • Changing the number of judges • Revising legislation • Amending the Constitution • Altering jurisdiction • Restricting remedies Copyright © Houghton Mifflin Company. All rights reserved. 16 | 22

Public Opinion and the Courts • Defying public opinion frontally may be dangerous to

Public Opinion and the Courts • Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion • Opinion in realigning eras may energize court • Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally Copyright © Houghton Mifflin Company. All rights reserved. 16 | 23

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