Chapter 16 Outline. Judicial review is the check that federal courts have against the other two branches of government

Transcription

1 Chapter 16 Outline Intr: Judicial review is the check that federal curts have against the ther tw branches f gvernment At ne time, there was much cntrversy n whether it was right t give the judiciary the right t declare legislatin r executive acts uncnstitutinal Tw cmpeting views f judiciary: Judicial restraint: judges shuld nly judge, apply rules stated in r clearly implied in the Cnstitutin Judicial activism: judges discver the underlying principles f the Cnstitutin, amplify n the basis f a mral r ecnmic philsphy, and apply these principles t the case Being liberal r cnservative has n bearing n whether a judge is an activist r strict-cnstructinist, but ften, liberals tend t be activists and cnservatives tend t be strict-cnstructinists Develpment Of The Federal Curts Funders prbably didn't expect the federal curts t play such a large rle in public plicy making Believed judges wuld apply existing law Judiciary was cnsidered the weakest f the three branches Evlutin f the curts has been shaped by the plitical, ecnmic and idelgical frces f three eras Natinal Supremacy And Slavery Frm 1789 t the Civil War, the main issue f the curts was the relatinship between state and natin Curts decided that natinal law was dminant t the pint that states culdn't tax an enterprise created by the natinal gvernment Supreme curt had the pwer t decide what the Cnstitutin meant,

2 and n ther curt culd Federal pwer t regulate cmmerce als established During this time, curt made its mst disastrus decisin in the Dred Sctt case; Taney held that slaves weren't citizens and culdn't becme citizens and that the Missuri Cmprmise was uncnstitutinal Gvernment And The Ecnmy Frm the Civil War t the New Deal, the biggest issue was when the ecnmy wuld be regulated by states and when by the federal gvernment Furteenth Amendment became applied t crpratins; challenges t gvernment regulatins bmbarded the curts Judicial activism brn during this era Number f laws declared uncnstitutinal rse sharply These decisins prved the Curt's lve fr private prperty: mst cases declared uncnstitutinal, hwever sme regulatins were allwed Supreme Curt is supprtive f private prperty but is unsure f what is reasnable regulatin and what is unreasnable Gvernment And Plitical Liberty After 1936, the Supreme Curt stpped impsing restrictins n gvernment regulatin It didn't even verturn cngressinal enactments that vilated persnal liberties Began when ne justice changed his mind, and cntinued as the cmpsitin f the Curt changed Oppsed welfare state and federal regulatin based n brad grants f discretinary authrity t administrative agencies FDR's prgrams kept getting struck dwn by the Curts and, nce reelected, set abut fixing this Rsevelt prpsed a bill that wuld allw him t a new justice fr every ne ver the age f 70 wh refused t retire, which wuld give him a gd majrity f justices vting in favr f his bill

3 Befre the plan was annunced, a justice changed his mind, allwing the presidents prgrams t be allwed by a slight majrity Called "the switch in time that saved nine" Bill was n lnger necessary: Rberts had yielded t public pinin Curt began mst active perid when Chief Justice Earl Warren entered ffice Activism nw arse t redefine the relatinship f citizens t the gvernment and t prtect the rights and liberties f citizens frm the gvernment Befre 1937, it was prtectin that cnservatives preferred After 1937, it was prtectin that liberals preferred The Revival Of State Svereignty Supreme had allwed Cngress t pass any law authrized by the Cnstitutin; as lng the activity affected interstate cmmerce, which everything did in the Curt's pinin, it was cnstitutinal Curts have begun t give back pwer t the states Struck dwn a law banning guns near a schl and a law allwing Indians t sue a state in a federal curt The Structure Of The Federal Curts The Cnstitutin nly requires the Supreme Curt; all thers are creatins f Cngress Tw kinds f lwer federal curts: Cnstitutinal curt: a curt exercising the judicial pwers in Article III and its judges are given cnstitutinal prtectin: can't be fired, salaries can't be reduced Mst imprtant f the cnstitutinal curts are the district curts and the curts f appeals, as well as varius specialized cnstitutinal curts Legislative curt: set up by Cngress fr sme specialized purpse and its judges are nt given cnstitutinal prtectins

4 Fr example, territrial curts Selecting Judges Party affects hw judges behave, but nt entirely Facts f the case, prir rulings, arguments presented by lawyers, n reliable way f predicting hw the judge will act Sex, and race have becme prminent factrs in selecting judges Senatrial Curtesy President nminates a qualified individual, and the Senate apprves r rejects the individual based n these qualificatins Senatr f the state where the district judge is t serve usually determines whether he is apprved r nt; senir senatr given blue slip f paper, and if a negative pinin is written, r the paper isn't returned at all, the nminatin is killed Often, the president asks the senatr t recmmend smene The "Litmus Test" Presidents have tried t exercise mre influence by rdering the Justice Department t find candidates with similar plitical and judicial philsphy as the president Different curts f appeals have different cmbinatins f judges have different idelgies (liberal r cnservative) Litmus test: test t determine idelgical purity Many want t judges picked n basis f prfessinal qualificatins, but curts are nw deeply invlved in plitical issues Litmus test has grwn in imprtance Often, senatrs munt a filibuster during the nminatin prcess; 14 senatrs agreed they wuld vte t blck a filibuster unless there were "extrardinary circumstances" Reasns fr rejecting a nminee fr Supreme Curt are different fr everyne and very cmplex; district curt nminees are rarely defeated, as typically the nminatin is ne that the key senatr apprves f in advance

5 The Jurisdictin Of The Federal Curts Dual curt system: federal and state Cnstitutin lists the kinds f cases ver which the federal curts have jurisdictin; state curts have jurisdictin ver all else Tw kinds f federal cases: Federal-questin cases Cases cncerning the Cnstitutin, federal laws, r treaties Diversity cases Invlving citizens f different states Sme cases can be heard in bth state and federal curts Lawyers and prsecutrs are very gd at deciding which curt will be mst likely t help them achieve their gals Dual svereignty: tried in bth curts Upheld dctrine n tw grunds: Each level has the right t enact laws serving its wn purpse Neither level f gvernment wants the ther t be able t blck prsecutin f an accused persn wh has the sympathy f the authrities Curt case that deals exclusively within the state can be appealed t the Supreme Curt, which can verturn state curt rulings, even when they had n jurisdictin ver the riginal matter, but nly under certain circumstances Vast majrity f cases begin in the district curts In 2007, there were ver 250,000 cases; 380 per judge Mst are straightfrward applicatins f law Supreme Curt can chse the cases it wants t hear Writ f certirari: an rder by a higher curt directing a lwer curt t send up a case fr review

6 If fur justices agree t hear the case, it is then scheduled fr a hearing Curt tries t reserve its time fr cases decided by lwer federal curts r the highest state curts Review an issue when: Tw r mre federal circuit curts f appeals have decided different ways Highest curt in a state has held that a federal r state law is uncnstitutinal, r has upheld a state law against the claim that it is in vilatin f the Cnstitutin 7,000 petitins sent each year, nly 100 accepted fr full review Dilemma: If cert is granted frequently, wrklad will increase If granted rarely, federal curt f appeals will have the last wrd n the interpretatin f the Cnstitutin One idea is t limit the Supreme Curt t majr questins f cnstitutinal interpretatin and create a natinal curt f appeals t ensure that the 12 circuit curts f appeals are unifrm in their decisins Influence f law clerks has grwn as law clerks play a big rle in deciding which cases are heard, and sme f the pinins f the justices are drafts made by the clerks Getting T Curt Supreme Curt rejects ver 96% f its applicatins Applying fr cert csts $300, but ne must als pay fr lawyers and fr cpies f the lwer-curt recrds Are ways t make the csts lwer: if yu dn't have any mney, yu can be heard as in frms pauper is If yu are in a criminal trial and yu are pr, a lawyer is prvided If it isn't a criminal case, an interest grup might help yu pay fr a

7 lawyer Fee Shifting Mre than pay; rganize case, fund plaintiffs, chse legal strategy, mbilized legal allies Each party in a lawsuit pays its wn way Varius laws make it easier t get smene else t pay Fee shifting allws plaintiff t cllect its csts frm the defendant if the defendant lses in certain kinds f cases Standing Nn financial restrictin n getting int federal curt, ne must have standing, smene wh is entitled t bring a case Changing, cmplex set f rules decide standing: Must be actual cntrversy Must shw that yu have been harmed Being a taxpayer desn't entitle yu t challenge the cnstitutinality f a gvernmental actin Nw easier t acquire standing Citizen can ask curts t rder federal fficials t carry ut sme act that they were bligated t perfrm Citizen can sue fficial t cllect damages when fficial acted cntrary t the law Can't sue gvernment itself withut its cnsent: svereign immunity Cngress has given its cnsent t be sued in cases invlving a dispute ver a cntract r damage dne as a result f negligence Class-Actin Suits A case brught int curt by a persn n behalf f, nt just themselves, but all thers in similar situatins Brwn v. Bard f Educatin At the time, the NAACP received n cmpensatin, but nw, rules are

8 changed t make it financially attractive fr lawyers Supreme Curt decided it wuld n lnger hear class-actin suits seeking mnetary damages unless each member f the class was ntified f the case Very expensive and time-cnsuming Easy t bring t state curts Getting int curt depends primarily n standing and resurces The Supreme Curt In Actin In sessin 36 weeks f the year Mst cases cme n a writ f certirari Lawyers submit briefs: dcuments that set frward the facts f the case, the lwer-curt decisin, arguments fr their side Present ral arguments As the federal gvernment is ften a party, the slicitr general ften appears befre curt Decides what cases the gvernment will appeal frm lwer curts and persnally apprves every case the gvernment presents t the Supreme Curt Arguments are als written by "a friend f the curt" r amicus curiae: frm interested party nt directly invlved Must be agreed upn by bth sides r Curt grants permissin Justices retire every Friday t debate cases Chief justice speaks first, then thers by rder f senirity Vte in reverse rder f senirity Curt usually writes an pinin explaining decisin Shrt, brief, unsigned: per curiam pinin Lng, signed by thse agreeing Chief justice part f majrity: he writes it r a justice agreeing with

9 him In minrity: senir justice in majrity decides wh writes it Three kinds f pinins: Opinin f Curt: reflects majrity Cncurring pinin: justices wh agree with cnclusin but fr different reasns Dissenting pinin: justices in minrity Each justice has three r fur law clerks that help review petitins, study cases and write pinins Tw-fifths f all decisins are unanimus Others are tw main blcs and ne swing vte The Pwer Of The Federal Curts The Pwer T Make Plicy Make plicy when they reinterpret the law r Cnstitutin in significant, extend reach f existing laws, design remedies that invlve judges acting in administrative r legislative ways Infrmal rule f judiciary: stare decisis, r let the decisin stand, settle cases based n prir cases If meaning f law changes, human affairs affected by laws becme chatic Principle f equal justice means similar cases shuld be decided in a similar manner Curt can make mistakes Measure f pwer is hw willing curts are t handle matters nce left t the Executive and Legislative branches Plitical questin: matter the Cnstitutin left entirely t a branch f gvernment t decide Nw much less imprtant barrier Remedy is a judicial rder setting frth what must be dne t crrect a

10 situatin a judge believes is wrng Basis fr sweeping curt rders can be fund in Cnstitutin Others based n curt interpretatins f federal law Curt decides what Cngress meant Views Of Judicial Activism Curts are institutins f last resrt fr thse withut the vtes r influence t btain new laws Critics say judges dn't have expertise in many matters Judges are appinted, nt elected, immune t ppular cntrl Many believe we have activist curts because f the large amunt f lawyers, but that is mre a symptm f active curts than a cause Easier t btain standing, t pay fr csts f litigatin and t bring class-actin suits Legislatin And The Curts Law must be vague in rder t prduce sweeping remedies; phrases that seem clear nw are elastic Cngress has increasingly passed laws that are vague Laws als induce litigatin Federal gvernment is much mre likely t be n the defensive in curt nw than 20 r 30 years ag Attitudes f judges affect what they d Checks On Judicial Pwer Judge is smetimes resisted r ignred if rganizatin is nt highly visible and are willing t risk getting caught Cngress And The Curts Can gradually alter the cmpsitin Senate cnfirms appintments

11 Can impeach judges Can alter the number f judges Can amend the Cnstitutin Decides the jurisdictin f the lwer curts and the appellate jurisdictin f the Supreme Curt Laws narrwing jurisdictin and restricting remedies might nt wrk Public Opinin And The Curts Curts still remain sensitive t public pinin; maintain legitimacy f curts Public pinin restrains curts, but als energizes them Mst activist perids happen during majr plitical changes Changes in curt caused by changes in its persnnel Grwth in activism Grwth f gvernment as a whle Acceptance f the activist view f the functin f the curts