Outline Ap Government: Judiciary

 Chapter 16 The Judiciary

1. Introduction

1. Judicial review- the power of the courts to declare laws unconstitutional

1. Checks and balances power of the courts

1. Views- used during the Clarence Thomas case

1. Judicial restraint approach-the view that the judges should decide the cases strictly on the basis of the language and of the laws and the constitution
2. Activist approach-the view that judges should discern the general principles underlying the laws or the constitution and apply them to modern circumstances

1. Not the same difference as liberals and conservatives

1. Ex: Hugo Black liberal uphold the banning of birth control within a state, Peckham setting max hours due to the 14th
2. Opposite of the views 70 years ago

1. The development of the Federal Courts

1. Founders did not expect such a large role of the courts in policy making

1. Judges interpret the law not make it

1. Easy for founders to justify judicial review
2. Play role in public affairs

1. Fed. No. 78.

1. Traditional understanding to find and apply an existing law
2. President is comm in Chief. Congress has the purse.

1. Courts have neither. What can they do?
2. Judicial powers not created to grow but created to lessen legislative powers

1. National Supremacy and Slavery

1. Up to the civil war the nation state relationship was weary

1. Marshall- national law was dominant over state law

1. Marbury v. Madison and McCulloch v. MD
2. Created judicial review
3. Necessary and proper to no state taxing of the federal banks

1. Virginia courts claim against the federal supremacy of the courts was rejected

1. Regulate commerce federally

1. Fulton steamboat license overturned because rivier connecting NY and NJ was interstate commerce
2. State law became bound due to supremacy

1. Accepted today, once were very controversial and revolutionary

1. jeffersonian republicans were in power states rights

1. against Marshall's decisions
2. attacked by jackson with the Cherokee dispute with Georgia “John Marshall has made his decision, now let him enforce it”

1. Next Chief justice favored states rights

1. Taney
2. Dress Scot case when he stated slaves were not citizens
3. Missouri compromise

1. Government and the Economy

1. During the new deal question as when federal and when the state would control the government
2. Courts connected to private affairs

1. Political and property rights always connected even in founders time (Marshall and the contracts)
2. The 14th amendment- african americans= citizens also protected private property and unreasonable state action         

1. “no state shall deprive a person of life liberty or property without due process of law”

1. courts eventually came to rule on constitutionality of government regulating business, or labor (increasing workload)

1. causing judicial activism in the 1880s
2. first 75 years of mercia 2 laws were unconstitutional, next 75 years 71 were

1. state laws often contradicted governmental laws

1. violations of the 14th due process amendment (economic regulation)

1. courts also authorized regulations for states

1. “affected with a public interest”
2. changed the idea of the Interstate Commerce Commission allowing regulations of the railroads                

1. railroad rates, safety, anti liquor laws, mine safety, compensation laws, wages and hours

1. 80% of the time Supreme Court upheld the state regulations

1. reasonable from unreasonable regulation is not defined in the constitution

1. no consistent principle made by the courts
2. 14th and 15th amendments gave african americans very limited provisions in railroad cars, schools, and voting

1. Government and Political Liberty

1. after 1936 economic regulations were left to the legislature
2. few laws were overturned regulating business but many were to protect personal liberties

1. new deal era the makeup of the supreme court justices changed with more opposition on the welfare

1. therefore roosevelt could not implement these policies but when he was reelected he packed the courts to get these ideas passed

1. appoint one new justice to every justice over the age of 70 refusing to retire allowing 15 total

1. bill was not passed
2. but Justice Roberts caused an attack on the courts causing several justices to step down
3. roosevelt made his own appointments

1. chief Justice Earl Warren had the most active court period

1. redefined the relationship between the government and the citizens from governmental trespass
2. court sees itself as protecting citizens from government (originally conservative view then liberal view, rarely in the middle)

1. The Revival of State Sovereignty

1. long time no objections to congress despite the states rights, with few state rights to challenge federal powers

1. ex. when congress passed a law stating that no one could carry guns near schools states argued that guns did not affect interstate commerce therefore the law was invalid

1. The Structure of the Federal Courts

1. the supreme Court required by constitution but doesn't state the number of justices or the appellate jurisdiction
2. COnstitutional Court- a federal court authorized by article 3 that keeps judges in office during good behavior and prevents their salaries from being reduced. They are the Supreme court (created by the constitution) and the appellate and district courts created by congress

1. district courts- the lowest federal courts, federal trials can be held only here
2. court of appeals- federal courts that hear appeals from district courts, no trials
3. legislative courts- courts create by congress for specialized purposes whose judges do not receive the protections of article 3 of the constitution

1. court of military appeals and the territorial courts

1. Selecting Judges

1. party background effects behavior of a judge (liberalism or conservatism) involving civil liberties, criminal justice, and economic regulation
2. judges as elites are very affected by this factor

1. other things including the case facts, prior rulings, and arguments also affect the outcome of the courts decisions, sex race and ethnicity

1. Senatorial Courtesy

1. people should be qualified to be a judge and the senate chooses them off of their qualifications

1. senatorial courtesy gives heavy weight to the senators of the state to whom the judge will serve
2. “blue slip”- a blue piece of paper on which the senator is asked to record his views on the nominee

1. negative opinion kills the nomination

1. The Litmus Test

1. an examination of the political ideology of a nominated judge
2. presidents try to please the blue slip and reflect their own political ideology in a judge nominee
3. because the supreme court cannot take time to solve disputes between different appeals courts different versions of a law may exist within circuits

1. 5th unconstitutional for universities to have affirmative action but allowed in the 9th
2. people question the litmus test wanting people to be based on qualifications

1. has increased in importance, a drop in confirmed appointments has shown this

1. view on abortion 60 people to end a filibuster the nominee needs that many people to be confirmed
2. “gang of fourteen” allowed people to be nominated unless they had fewer than 60 votes

1. supreme court justices who share the president's ideology

1. of the 145 supreme court nominees senate has rejected 29 each for different personal reasons

1. hostility towards civil rights, questionable financial dealings, poor records, and opposition to legal ideas
2. nominations of district court judges is rarely defeated- unless key senators approve in advance

1. The Jurisdiction of the Federal Courts

1. dual court system- constitution lists jurisdiction to the federal courts and the state courts are left to implied jurisdiction

1. Federal Question Cases- cases concerning the constitution, federal laws, or treaties
2. Diversity Cases- cases involving citizens of different states who can bring suit in federal courts
3. some cases can be heard by both courts

1. ex: LA police accused of beating Rodney tried in CA state court and acquitted of assault charges, then tried in Federal court for violating King's civil rights
2. under dual sovereignty a person can be prosecuted in state and federal courts for the same thing  

1. each level of government has the right to enact laws serving its own purpose
2. neither level of government wants the other to be able to block prosecution of an accused person who has the sympathy of the authorities at one level

1. ex: southern state court lynching blacks is okay

1. a matter in a state court can be appealed to the Supreme Court

1. Jurisdiction of the courts has long been under question

1. federal courts- when a federal law is broken but not a state one

1. appealing the decision of a federal regulatory agency
2. declaring bankruptcy
3. controversy between two state governments

1. ex: CA and AZ sue over who is allowed to use how much water from the COlorado river

1. majority of federal cases starred in district courts

1. supreme court can choose the appeals they want to hear

1. writ of certiorari- an order by a higher court directing a lower court to send up a case for review (4 justices)
2. uses them to see whether a legitimate constitutional question has been raised

1. two or more federal courts have decided differently on the same topic
2. the highest court in the state has held a federal or state law to violate the constitution or upheld a state law that is in violation of the constitution

1. receives 7,000 only fully reviews 150

1. Getting to Court

1. in forma pauperis- a method whereby a poor person can his or her case heard in federal court without charge

1. A lawyer will be provided for criminal cases, if it is not a criminal case than it is possible that an interest group that is affected will pitch in the money for the cause

1. interest groups often organize a case, fund it, found plaintiffs, chose the legal strategy, and mobilized allies

1. applying for ceriotti in the supreme court costs 300 dollars

1. Fee Shifting

1. fee shifting- a rule that allows plaintiffs to recover costs from the defendant if the plaintiff wins

1. plaintiff- the party that initiates the lawsuit

1. Ex: if a corporation violates antitrust laws it must pay the legal fees of the winner

1. if and environmental group sues the EPA it can get the EPA to pay the legal costs
2. if a citizen is to sue a state or local government and wins they will pay the legal fees of the citizen

1. Standing

1. a legal rule stating who is authorized to start a lawsuit

1. must be an actual; controversy between real adversaries

1. no hypotheticals, no friendly suits; hoping to lose to prove your friend right

1. show that you have been harmed by the law in practice upon that you be complaining about

1. cannot just dislike it

1. being a taxpayer does not entitle you to challenge the constitutionality of a federal governmental action

1. vote against politicians instead
2. citizen can claim that this is a violation of their first amendment rights and this will be laxed

1. can ask courts to have the government to perform an act to show that it is contrary to some law

1. sue official if they acted against a law

1. FBI broke into your house without a warrant you could sue against them
2. Sovereign immunity- the rule that a citizen cannot sue the government without the government's consent

1. Ex: govt. kills cow using a new cannon then you cannot sue them unless they agree to be sued
2. congress has allowed the government to be sued over negligence of a contract

1. Class-Action Suits

1. a case brought by someone to help him or her and all the other people hp are similarly situated

1. ex: Linda Brown- Black girl in Topeka who was denied equal protection of the laws guaranteed under the 14th amendment because the schools were segregated

1. Brown vs. Board of Education

1. most involve civil rights, the rights of prisoners, corporation antitrust, etc.

1. you trying to get back $75 from your telephone company vs. millions trying to get back $75 from the cell phone company Which seems more appealing to the lawyer

1. supreme court has placed restrictions on these suis

1. no more monetary class action suits unless they violated rights and every member must be individually notified of the case
2. still easy to bring them to state courts affect how courts make public policy

1. The Supreme Court In Action

1. brief- a written statement by an attorney that summarizes a case and the laws and rulings that support it
2. then lawyers present their oral arguments in open court

1. usually limited to a half an hour
2. give justice a chance to question the lawyers
3. the government's top lawyer frequently appears before the court (the solicitor general)

1. third ranking officer in the Department of Justice

1. amicus curiae- a brief submitted by a friend of the court

1. justices also influenced by the legal periodicals, often consulting them therefore they appear in the judges citations
2. the judges opinions conclusions often shaped by the outside world

1. justices then retreat to a conference room friday to debate (in order of seniority) the cases that they have heard within the week
2. they then vote (in order of reverse seniority)

1. per curiam opinion- a brief unsigned court opinion
2. opinion of the court- a signed opinion of a majority of the supreme court
3. concurring opinion- a signed opinion in which one or more members agree with the majority view but with different reasons
4. Dissenting opinion- a signed opinion in which one or more justices disagree with the majority view

1. Many supreme court decisions are decided unanimously- the law is clear and no difficult interpretations of the law exist

1. the conservative bloc- Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas
2. the liberal bloc- Stephen Breyer, Ruth Bader Ginsburg, John PAul Stevens, and Sonia Sotomayor
3. a swing vote of Anthony Kennedy

1. conservative with criminal law, but liberal with others (abortion, gay rights, foreign policy)

1. The Power of the Federal Courts

1. cases heard have little or nothing to do with changes in public policy

1. courts apply a relatively settled law to a specific controversy

1. The Power to Make Policy

1. re interpret a law or constitution in a significant way

1. extending a law, or redesigning a law to adapt to an administrative or legislative body

1. 160 federal laws declare unconstitutional
2. when congress feels strongly it can pass a slightly revised version of a voided law
3. stare decisis- informal rule of judicial decision making “ let the decision stand or allowing prior rulings to decide the current case (precedent)

1. constituents of cases are different in small relevant ways
2. if the meaning of laws and the decisions made based off of them become continually changing then the people affected by them become chaotic
3. justice is that similar cases are decided similarly

1. court cases however can be changed with time and fixed

1. the degree to which courts are willing to handle matters once left to the legislature

1. political question- an issue the supreme court will allow the executive and legislative branches decide

1. remedy- a judicial order enforcing a right or redressing a wrong

1. suing remedy: loser must pay the winner for the injury that he/she has caused and agree to not do it again
2. now judges make them far more extravagant,applying to large groups affecting thousands, millions of people

1. ex:prisoner in Alabama argued to revamp the entire prisoning system  increased cost of $40 million dollars a year

1. based off of the interpretation of the 8th amendment

1. many are based of constitutional rights

1. Views of Judicial Activism

1. been controversial

1. support it: courts correct injustices when the other branches don't

1. courts are the last resort

1. Criticize it: judges have no special expertise

1. must balance the needs of conflicting interest groups and federal judges are not immune to the popular control

1. hey then make wholly new federal policies and become un elected legislators

1. some believe that the cause of activist are due to the amount of lawyers

1. symptom not a cause, emphasis of individual rights
2. lawyers do not create cases they are due to the contending interests

1. cause of the activist courts could be people standing in the courts

1. Legislation and the Courts

1. laws must be vague to allow judges to interpret it and exercise that full opportunity

1. many of the phrases in the constitution are vague now “due process” equal protection” “privileges or immunities”

1. interpretations of these phrases are based on personal beliefs of the justices

1. congress has also passed laws with vague languages

1. say what the public interest requires but do not define public interest
2. say that citizen participation but do not say what citizens or how much power they should have when they participate

1. some laws induce litigation

1. every agency regulating agencies will make decisions that cause the agency to be challenged in court

1. judges affect what they will do different judges will decide the same case in different ways

1. found in the area of sentencing criminals

1. Checks on Judicial Power

1. judge has no police force of army

1. the decisions of the courts can be ignored or resisted

1. ex: the outlaw of the bible in school, however schools continued to do it anyways

1. Congress and The Courts

1. can alter the judiciary by the confirmation of the judges of nominees
2. congress can alter the number of judges

1. “court packing” proposed by Roosevelt

1. congress can amend a document (13th 14th 15th adjusted due to the dred Scott case)

1. congress often repasses a law that the judiciary declared unconstitutional

1. can define the original and the appellate jurisdiction of the federal courts

1. congress has also threatened the jurisdiction of the courts
2. denying the supreme court jurisdiction would allow the lower courts to do as they wish
3. this is open to the possibility of a supreme court challenge

1. Public opinion and the Courts

1. judges are in contact with public opinion and are affected mostly by the public elites

1. Dred Scott case almost lost the legitimacy of the court due to the Norths outrage

1. opinion also causes drastic changes in society Marshalls decisions led to supremacy and Judicial review
2. the opinion of the courts reflect the opinion of a government as a whole

1. growth in activism can be looked at to be caused by the growth of the government as a whole