The Judicial Branch Today How does the judicial

The Judicial Branch

Today: How does the judicial branch of government work? What is the role of the judicial branch in the constitutional system? Is the judiciary really the “least dangerous branch” of government?

Types of courts • State and Federal • Federal: – Constitutional courts – Bankruptcy, military, tax courts • Constitutional courts: – Trial • Civil and Criminal – Appellate – Supreme

How do cases get to the Supreme Court? • Screened by solicitor general & clerks • Rules of access: – Controversy – Standing – Mootness • Writ of Certiorari • Original jurisdiction • Discretion

How do judges make decisions? • Stare decisis: let the precedent stand

Powers of the judicial branch • Constitution

What does the Constitution say? • The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” • “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. ” Article III: Sections 1 and 2

Powers of the judicial branch • Constitution • Judicial Review: Marbury vs. Madison • Historical influence

Checks and balances The judiciary’s powers • Can declare laws and executive actions unconstitutional Checks on the judiciary • Rules that limit standing in federal courts • No enforcement powers • Shaped by Congress and the president • Congress affects size and jurisdiction

The ‘Least Dangerous Branch’ • “The interpretation of the laws is the proper and peculiar province of the courts…If there should happen to be an irreconcileable variance between [a law and the Constitution], that which has the superior obligation and validity ought of course to be preferred, or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents…This conclusion [does not imply] a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both…” Hamilton, Federalist 78

The ‘Least Dangerous Branch’ • “The courts on the pretense of a repugnancy may [not] substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of the two contradictory statutes…The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body…” Hamilton, Federalist 78

The ‘Least Dangerous Branch’? • Judicial activism: Willingness to overturn precedent and laws • Judicial restraint: Deference to elected representatives and precedent

In pairs: Think of some examples of famous Supreme Court cases. Did the Court make the right decision, in your mind, in those cases? Did it do so by overturning precedents and laws passed by elected bodies, or by refusing to do so? Do you think that judges should be guided by judicial activism or judicial restraint? What are the dangers of an unelected judiciary that is happy to overturn laws and precedents? What are the dangers of interpretation that always defers to precedent?