The Federal Courts: Least Dangerous Branch or Imperial Judiciary?
Core of the Analysis
The Supreme Court's power of judicial review makes it a lawmaking body.
Judges have political goals and policy preferences.
The three dominant influences shaping Supreme Court decisions are the philosophies and attitudes of the members of the Court, the solicitor general's control over cases involving the government, and the pattern of cases that come before the Court.
The role and power of the federal courts, particularly the Supreme Court, have been significantly strengthened and expanded in the last fifty years.
The United States is a litigious society, with 25 million cases per year (one for every nine citizens.)
U.S. citizens are ready to use courts for all purposes.
Court is a forum for social conflict in which a case's facts are established, punishment is handed out to violators, and compensation is awarded to victims.
Court is an institution that engages in fact-finding and judgment.
Courts interpret rules (statutes or judicial principles) to dispose of cases.
Accused party is innocent until proven guilty
Accused has right to trial by jury of peers
Juries bring community values to bear in a trial.
From the Least Dangerous Branch to the Imperial Judiciary?
Courts influence our decisions and actions on a daily basis
The Constitution guarantees the following:
The right to burn the flag (freedom of speech)
The right to sacrifice animals during a religious ritual (freedom of religion)
Minorities cannot be excluded from society (equal protection)
Women have a right to an abortion (right to privacy)
Constitutional Basis of Judiciary
Article III, Section 1: Judicial power shall be vested in one Supreme Court, and inferior courts that Congress may ordain
Judges shall hold their offices during good behavior (for life)
Section 2: Jurisdiction: power shall extend to all cases arising under the Constitution, laws of the United States, treaties made
Original jurisdiction: cases involving states, ambassadors
Trial by jury
Section 3: Treason, Proof, and Punishment
Conviction on treason requires two witnesses
Civil law: "private law" involves disputes between citizens or between government and a citizen where no crime is alleged
Criminal law: arises out of actions that violate laws protecting health, safety, and morals of the community. (mostly in state courts)
Administrative law: disputes over statutory authority, jurisdiction, or procedures of administrative agencies.
Courts are responsible for discovering the facts in a controversy in order to create a record upon which a judgment is based.
Fraction of total cases tried (266,000 out of 25 million)
Lower Federal Courts
Trial courts of general jurisdiction
Federal agencies are equivalent to lower federal courts.
10 percent of federal cases
Consist of more than one judge (usually three)
Only rule on matters of procedure, no new evidence may be presented
No cases can originate in Appeals Court
Highest court in the land
Judicial review is the power and obligation to review any lower court decision where public law is involved.
Established by Marbury v. Madison (1803)
Chief Justice John Marshall established and championed this Court power.
Supremacy Clause: federal decisions are superior to the states
Writ of certiorari : grants cases to be heard at the Supreme Court
Four justices are required for a writ to be granted
Character of the Supreme Court
The Nine Justices
Chief Justice William Rehnquist (Nixon/Reagan)
Stephen G. Breyer (Clinton)
Ruth Bader Ginsburg (Clinton)
Anthony Kennedy (Reagan)
Sandra Day O'Connor (Reagan)
Anonin Scalia (Reagan)
David Souter (George H. Bush)
Clarence Thomas (George H. Bush)
John Paul Stevens (Ford)
Appointed by the president
Generally prominent or politically active members of the legal profession
Usually suggested by a Senator from a state with vacant seats- Senatorial Courtesy
Ideological views are similar to the president's views
Influences on Decisions
Politics of the day reflect decisions made (same Constitution)
Judicial activism: Court goes beyond the Constitution to consider broader societal implications of the case
Judicial restraint: strictly interprets the case according to the Constitution
A case must have standing to be considered.
Judges are Legal Professionals
They draw fixed salaries and benefits that are independent of effort, quality of work, or performance.
Judges undergo a thorough screening process by the political authorities that nominate and confirm them.
Opportunity for advancement is limited, but judges invest in their jobs by their desire for popularity, prestige, and reputation.
Courts as Coordination Mechanisms
Courts serve as coordination mechanisms to prevent legal disputes before they begin.
Given previous court decisions, private parties can anticipate rulings and coordinate their actions in advance of possible disputes.
Example: A prospective embezzler may think twice before committing a crime if he understands the court’s response.
The courts provide incentives and disincentives for specific actions.
Rule interpretation is the single most important thing the courts do
Judges engage in interpretative activity by determining what statutes or judicial principles mean
Interpretation is required because laws are not always clear or easily applied to all situations.
Courts also interpret the Constitution to determine the laws’ scope and content
Because of this interpretative activity, the courts engage in de facto lawmaking.
Supreme Court Procedures
Preparation: briefs are filed by both sides and interested parties (amici curiae - friends of the court)
Oral argument: each side presents its case in just thirty minutes
Conference: justices discuss case and decide
Opinion writing: assigned by chief justice, opinion sets precedent for future cases
Dissent: expresses irritation and disagreement with an outcome
Concurrent opinion- agree with decision but for different reasons
Justice Department (Solicitor General): Third-Ranking Person in the Justice Department
Top government lawyer in almost all cases before the appellate courts
Screens cases before they approach Supreme Court
Decides which cases the government should ask the Supreme Court to review and what position the government should take before the Supreme Court
Can submit amicus curiae : friend of the court brief; offers an opinion to the Supreme Court
Limitations on the Courts
Courts were constrained by judicial rules of standing to limit access to the bench.
Courts were limited in type of relief they could provide (only to individuals).
Courts lacked enforcement powers of their own and relied on executive branch to ensure compliance.
Federal judges are appointed by the president
Congress has the power to change size and jurisdiction of the courts
Substantive in judicial policy
Court was at forefront of sweeping changes in society