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,
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
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
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
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
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
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
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
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
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
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