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17 courts online 17 courts online Presentation Transcript

  • Supreme Court
  • National Government Institutions
    The Supreme Court
  • Political Scientists v. Legal Scholars
    Emphasis on the “politics” of courts– “who get what, when, where, and how”
    Less emphasis on what the law means, what it is– more emphasis on its impact beyond the courts
    Expands understanding of how the legal system works to include social theories.
    Does not study the practice of law, but how that practice effects society and politics
  • Two ways of understanding the strength of the Court
    Method I
    The Supreme Court is the most powerful branch because of the durability of its decisions
    The countermajoritarian problem seriously impedes full democracy.
    Method II
    The system of checks and balances and separation of powers effectively leaves the Court as the weakest branch.
    The countermajoritarian problem is not a problem for democracy.
  • Method I- Taft was the only U.S. president to also be on the Supreme Court.
    “Presidents come and go, but the Supreme Court goes on forever.”
    -- President William Howard Taft
  • Method II- exemplified by the Founding Father, Alexander Hamilton in his defense of the Constitution and the Supreme Court
    “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them … The judiciary … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”
    —Alexander Hamilton, Federalist 78
  • Structures: Power and Constraint
    Power
    Discretion in agenda setting
    Insulation from other branches
    Judicial review
    Constraint
    Cases must come to the Court
    Congressional and presidential “checks”
    No enforcement power
  • Power
    Provide incentives or disincentives for action/ behavior by use of remedies
    Develop policy through statutory interpretations and constitutional decisions
    Constraint
    Limited by law in providing remedies
    Congress can change the law; clarify intent
  • Judicial Review
    Power to render legislative and executive actions unconstitutional
    Marbury v. Madison (1803)
    Marbury is denied a commission to be a justice of the peace.
    “It is empathetically the province and duty of the Judicial Department to say what the law is.” – Chief Justice John Marshall
  • Source: David M. O’Brien, Storm Center: The Supreme Court in American Politics, 6th ed. (New York: Norton, 2003), p. 30.
    Note: Figures represent the number of congressional acts and state laws overturned divided by the number of years of each Chief Justice’s tenure. Note that the figures for the Rehnquist Court only include up to 2001.
  • Court Process
    Petition for a writ of certiorari
    Conference and vote
    Briefs filed
    Oral Arguments
    Conference and vote
    Opinion writing
    Announce decision
  • Collective action problems
    Granting Certiorari– How does the Court come to agreement on 100-150 cases to consider out of the 2,000-8,000 petitions filed each year (number varies by year and type)?
    The Rule of Four– Four justices agree to hear the case, the case is taken up by the Court
    This is an example of the institutions principle.
    Exceptions– If one justice is vehemently opposed, usually the others will go along.
  • Collective action problems
    Granting Certiorari
    The Rule of Four
    Exceptions?
    Opinion writing-
    Want to get enough justices to sign on to make a majority rather than a plurality opinion.
    The more justices signing onto an opinion, the stronger the precedent. 9-0 with no concurring opinions sends the strongest message.
    Answer: Strategic opinion writing.
  • In most cases, the Supreme Court issues a majority opinion that is controlling.
    In rare instances, no majority may emerge and justices write a plurality opinion.
    Justices who disagree with the judgment of the majority often offer a dissenting opinion.
    Those who agree with the ultimate conclusion but for different reasons might write a concurring opinion.
  • Strategic opinion writing
    Goal: Get as many justices as possible to sign on
    Reason: Strengthen precedent
    How: strategic opinion writing
    Rather than writing what is the correct interpretation, justices modify decisions to be more acceptable to others.
    Example: The development of heightened scrutiny in Craig v. Boren (1976)
    Brennan believes sex discrimination deserves strict scrutiny, but cannot get a majority to agree.
    Instead develops a new middle standard, heightened scrutiny as a compromise.
  • Court’s legitimacy depends on
    Constitution
    Public perception of neutrality
    Blind justice
    Staying within the bounds of statutes
    BUT…
  • Models of decision-making
    Attitudinal
    Legal
    Societal
  • Attitudinal Model
    Personal preference and values of judges drive decision-making
    Charges of judicial activism often have
    this assumption
    Many social scientists find solid
    evidence in support
  • Correct?
    In practice, constraint on Supreme Court by other branches is limited
    Life Tenure= Job stability
    Difficulty of overturning decisions
    Statutory– difficult to get Congress to pass laws
    Constitutional- amendments even tougher
    Who could resist?
  • How else can ambiguity be resolved?
    Unclear precedent invites?
    Scalia’s critique of “totality of the circumstances”– he argues Court should avoid case by case analysis and come up with clear rules instead.
    EVIDENCE: Dissenting justices DON’T normally change votes in future cases.
    EVIDENCE: Congress’ threat to break up the traditionally liberal 9th Circuit.
  • Legal Model
    Legal procedure drives decision-making
    How the law community thinks about judicial decision-making
    Textual meanings
    authors’ intent and originalism
    Stare decisis
  • Correct?
    Often language is clear
    Use of documents to support intent claims
    Judicial intervention comes in very small numbers.
  • Source: David M. O’Brien, Storm Center: The Supreme Court in American Politics, 6th ed. (New York: Norton, 2003), p. 30.
    Note: Figures represent the number of congressional acts and state laws overturned divided by the number of years of each Chief Justice’s tenure. Note that the figures for the Rehnquist Court only include up to 2001.
  • Correct?
    Often language is clear
    Use of documents to support intent claims
    Judicial intervention comes in very small numbers.
    Most precedent is not overturned
    Precedent is the main focus of briefs and oral arguments
  • Societal Model
    Justices are part of a broader culture in which they are embedded
    and this effects how justices make decisions
  • Correct?
    Court tracks public opinion in decision making, but often is lagged by several years.
    Decisions are not outlandish by contemporary standards.
    Premise closely related to attitudinal model– how else are preference created?
    Appointment and confirmation are made by people who rely on public support.