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Chapter 13 Judicial Politics
I. Judicial Power
A. Constitutional Power of the Courts
• Judges are appointed for life, not elected
• Their salaries can not be reduced during their term
• Federal judicial power extends to any case arising under the
Constitution (very vague), cases in which officials of the federal
government or foreign governments are a party, and cases between
states or different state citizens.
B. Interpreting the Constitution: Judicial Review
• Judicial Review – power of the federal courts to declare laws of
Congress, state legislatures, and actions of the president
unconstitutional. Judicial review does not appear in the Constitution.
It is inferred. But from what?
• The Constitution says it is the “Supreme Law of the Land” (Article VI)
• Marbury v. Madison (1803) – officially established JR. Chief Justice
John Marshall explained the concept in a syllogism (Const is the
supreme law of land; Supreme Court interprets the Const; therefore,
the SC is the supreme interpreter of land)
Why controversial to people like Jefferson? An unelected 5 justices
may trump elected (more accountable) branches of government;
perhaps produces a “run away court” or ‘judicial tyranny’ that can’t
be corrected by elections
C. Use of Judicial Review
However, the court strikes down few laws. The Court did not strike
down a law after Marbury (1803) until Dred Scott v. Sandford
(1857). Since then, state laws have been overturned relatively
frequently. All in all, the court has struck down fewer than 150 of
the more than 60,000 laws passed by Congress (2 centuries).
Examples of using JR to strike down decision of other political
1. Striking down Congress:
- Dred Scott v. Sandford (1857): Missouri Compromise
2. Striking down the President:
Youngstown Sheet and Tube Co. v. Sawyer (1952): Truman’s steel
mill seizure
3. Striking down the states (most likely candidate for striking down law):
Brown v. Board of Education of Topeka (1954): ended mandated
state segregation in schools in 21 states.
Green v. County School Board (1968): required integration in
state schools
Roe v. Wade (1973): struck down anti-abortion laws in more
than 40 states.
D. Interpreting Federal Laws: federal courts also interpret laws passed
by Congress (statutory laws).
E. Supreme Court’s Policy Agenda (where do they dominate?)
Answer: In policy areas that are not readily, sufficiently, and/or easily
handled by the elected branches of government.
Civil Rights and treatment of women and minorities
Rights of criminal defendants
Freedom of press, speech, and religion
Resolving disputes with respect to federalism and the separation of
What is it about these areas that makes them appear on the court
docket and not on the agendas of elected institutions?
Not much majority appeal; mostly minority interest.
II. Activism versus self-restraint
Judicial self-restraint – “the belief that judges should not read their own
philosophies into the Constitution and should avoid direct
confrontations with Congress, the president, and the states whenever
possible.” In other words, this approach calls for those seeking a
judicial solution to exhaust every other governmental solution
(legislative process) before going to court, precisely because judges are
not election (unaccountable).
Original Intent (closely related to self-restraint) – an attempt to
interpret the Constitution by trying to ascertain the values of the
Founders. Seems natural enough (ask the authors what they meant);
critics say it is inappropriate (different time/place) and too difficult to
ascertain (sketchy record & which framers?)
Judicial activism – argues that the federal courts – rather than or
equally in addition to – Congress, the president, or the states should
decide all important matters. Judicial activists make new law through
judicial interpretation. They typically use parts of the Constitution
considered vague in order to become active. They think unelected
judges are outside politics and better suited than congress to make
many policy decisions. Typically believe judges should not limit their
interpretations of the constitution to the words themselves, but a bring
their own experiences and extra-constitutional concerns to judicial
Interpretation of
Open process; the
constitution simply
one factor
View of Judicial
Role in
Policy process
Strong; because
judges are
unelected and
therefore, they are
thought to be
neutral or objective
Closed; the const.
only factor to
consider; if it is
inadequate, amend
because unelected
judges should let
policymaking be
conducted by
bodies that are
closest to the
*In interpreting the Constitution in the light of an
ever-changing society, whose values should take
priority, the views of a given justice or those of the
founders? Should the moral views of unelected
justices take priority over elected representatives?
• Stare Decisis – letting past decisions dictate current
or future decisions of the court (precedent). This is
not always followed, of course (i.e. Brown
overturned Plessy).
III. Structure and Jurisdiction of Federal Courts
A. Jurisdiction – power of a court to hear a particular case
Appellate Jurisdiction – Courts power to review a lower court’s
Original Jurisdiction – Court’s right to be the FIRST to hear a case.
B. Types of Courts (Next slide; Fig 13-1 & 13-2 in book)
U.S. Supreme Court (nine judges) – original and appellate
jurisdiction; About 9,000 appeals are made to the S.C. They hear
only about 100.
Courts of Appeals (12 Circuit Courts + DC Court; no original
jurisdiction; 3 judge panels). MS is in the 5th.
Federal District Courts (each state has at least one and 94 total;
only original jurisdiction; 1 judge; hear as many as 300,000 cases
a year)
State Courts – there are 50 separate and independent state court
systems. Appeals from state supreme courts must go directly to
the U.S. Supreme Court. Must contain a “federal question”
IV. Special Rules of Judicial Decision Making
Cases and Controversies – courts wait until disputes are brought
before them. They decide guilt or innocence in criminal cases
and enforce contracts and award monetary damages in civil
Adversarial Proceeding – lawyers run the show, call/question the
witnesses, expected to muster evidence and the truth comes out
of the confrontation. Judges are dispassionate, observers,
inactive, and serve as court referees not active participants.
Standing – Requirement that the party who files a lawsuit have a
legal stake in the outcome (they can show clear harm). You can’t
simply declare dissatisfaction (e.g. taxpayer can’t sue government
for expenditure choice).
Legal Fees – It costs money to go to court, but the sixth
amendment guarantees the “Assistance of Counsel” if one cannot
afford to pay.
Remedies and Relief – more and more, the decisions of a judge
are designed to correct a wrong, not simply rule on the legality of
an issue.
Appointments of Independent Counsels – Ethics in Government Act
of 1978 grants federal courts the power, upon request of the
attorney general, to appoint “special prosecutors” to investigate the
president or high officials.
V. Appointment Decisions
President appoints justices for life.
The Senate must confirm. We have moved from senatorial courtesy
towards partisan contests at all court levels.
Ideology (e.g. Bork): Video Privacy (9m mark)
Filibustering nominees – Const requires only a majority to confirm
nominees, but Dems have used the filibuster, which can only be
ended with 60 votes to deny a vote on nominees to the bench.
VI. Who is selected (Next slide)
Law Degrees (from most prestigious or Ivy League universities
Judicial Experience (1/2 judges previously)
Age (50s typically)
Race or Gender (implicit quota; currently one female, one AA)
Judge Roberts? Alito?
Appt. by
Law school
John Roberts (Chief )
G.W. Bush –
Elena Kagan
Obama - D
Antonin Scalia
Reagan – R
Anthony Kennedy
Reagan – R
Sonia Sotomayor
Obama – D
Clarence Thomas
G.H.W. Bush
Ruth Bader Ginsburg
Clinton – D
Stephen Breyer
Clinton – D
Samuel Alito
G.W. Bush R
VII. Supreme Court Decision Making
A. Granting Certiorari – agreeing to hear a case requires the approval of
4 justices (“rule of 4”) on the bench.
B. Which cases most likely granted?
First Amendment cases
Civil Rights (14th amendment) cases
Criminal Justice (Due Process – 5th and 14th)
When there’s a difference between Circuit Court opinions or
Lower Court opinions and the Supreme Court.
C. Hearing Arguments
Attorneys submit written briefs on the issue.
Interested groups submit amicus curiae briefs
The Solicitor General presents or defends the U.S. government.
Each side usually gets between 30-60 minutes, although
interruptions are frequent.
D. In Conference – Actual decisions are made in private
meetings with the Chief Justice speaking first and the
others speak in order of seniority.
E. Writing Opinions – most opinions are written by law
Majority Opinion – one agreed upon by a majority of
justices (assigned by Chief unless he is in the minority;
most senior member writes it then).
Concurring Opinion – an opinion that agrees with the
decision of the majority but for different reasons; often
supporting a different policy position altogether.
Dissenting Opinion – opinion of a member or group of
members in the minority. They disagree both with the
majority’s decision and reasoning. Written in hopes of
influencing future courts.
VIII. Checking Court Power (maybe Jefferson’s concern about judicial tyranny
through judicial review is a little overstated?)
A. Perception of legitimacy is both a check and tool of court enforcement
power. Courts rely upon the executive branch to enforce its decisions;
they can’t do it themselves. If the court is widely considered
illigetimate, executive branch enforcement is not likely to follow soon.
Challenges to court legitimacy came in the Civil Rights era (i.e. Orval
Faubus, 1957) when some states refused to comply with Brown v. Board
of Education. But because the greater public considered the ruling to
be legitimate, the president enforced the decision (although slowly).
The court’s constitutional restriction on prayer in schools, however, has
seen only gradual enforcement.
% confident in
SC, Pres,
B. Presidential influence
1. appointment modifies the composition of the court (i.e. 70% of the
justices have been appointed by Reagan and Bush
2. Appoints Solicitor General who rarely loses
C. Congressional influence (how can Congress challenge a crazy court?)
Reduce their power by creating other courts and jurisdictions (i.e.
cases between different state citizens must involve a dispute in
excess of $75,000 by Congressional statute).
C could, but does not, change the number of justices. It nearly
raised the number of SC justices to 15 in response to the 5-4
conservative majority in the 1930s who kept striking down FDR’s
New Deal programs (one of the 5 “switched in time to save nine”
and Congress decided not to change the number as a result).
C can reword laws that are considered constitutionally
questionable to the Supreme Court.
C plays a pivotal role in amending the Constitution. (e.g., Congress
responded to Dred Scott with the 13th).
C can impeach justices, but only 5 have ever been so.