The Judiciary

Chapter 16Chapter 16
The JudiciaryThe Judiciary

Copyright © 2011 CengageCopyright © 2011 Cengage
 WHO GOVERNS?WHO GOVERNS?
1.1. Why should federal judges serve forWhy should federal judges serve for
life?life?
 TO WHAT ENDS?TO WHAT ENDS?
1.1. Why should federal courts be able toWhy should federal courts be able to
declare laws unconstitutional?declare laws unconstitutional?
2.2. Should federal judges only interpretShould federal judges only interpret
existing laws or should they be able toexisting laws or should they be able to
create new laws?create new laws?

OverviewOverview
 Judicial ReviewJudicial Review –– the power of courts tothe power of courts to
declare laws unconstitutionaldeclare laws unconstitutional
 Judicial Restraint ApproachJudicial Restraint Approach – judges– judges
should decide cases strictly on the basis ofshould decide cases strictly on the basis of
the language of the Constitutionthe language of the Constitution
 Activist Approach –Activist Approach – judges shouldjudges should
discern the general principles underlyingdiscern the general principles underlying
the Constitution and apply them tothe Constitution and apply them to
modern circumstancesmodern circumstances

The Development of the FederalThe Development of the Federal
CourtsCourts
 National Supremacy and SlaveryNational Supremacy and Slavery
• Marbury v MadisonMarbury v Madison (1803)(1803)
• McCulloch v MarylandMcCulloch v Maryland (1819)(1819)
• Dred ScotDred Scot decision (1857)decision (1857)
 Government and the EconomyGovernment and the Economy
 Government and Political LibertyGovernment and Political Liberty
 The Revival of State SovereigntyThe Revival of State Sovereignty

Roger B. Taney, chief justice from 1836 to 1864, wrote theRoger B. Taney, chief justice from 1836 to 1864, wrote the Dred ScottDred Scott
decision, which asserted that blacks were not citizens of the Uniteddecision, which asserted that blacks were not citizens of the United
States. Dred Scott claimed that when his master brought him north toStates. Dred Scott claimed that when his master brought him north to
a free state, he ceased to be a slave. The public outcry against thea free state, he ceased to be a slave. The public outcry against the
decision was intense, at least in the North, as is evident from thisdecision was intense, at least in the North, as is evident from this
poster announcing a mass meeting “to consider the atrociousposter announcing a mass meeting “to consider the atrocious
decision.” p. 434decision.” p. 434
Library of Congress/LC-USZ62-44166

The “nine old men”—The Supreme Court in 1937, not long after President
Franklin D. Roosevelt tried, unsuccessfully, to “pack” it by appointing six
additional justices who would have supported his New Deal legislation.
Justice Owen J. Roberts (standing, second from the left) changed his vote
on these matters, and the Court ceased to be a barrier to the delegation of
power to the bureaucracy. P. 435
Bettmann/Corbis

Map 16.1 U.S. District and Appellate CourtsMap 16.1 U.S. District and Appellate Courts
Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the
Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth.
Source: Administrative Office of the United States Courts (January 1983).

The Structure of the FederalThe Structure of the Federal
CourtsCourts
 Lower Federal CourtsLower Federal Courts
• Constitutional CourtConstitutional Court
 District courtsDistrict courts
 Courts of appealCourts of appeal
• Legislative CourtLegislative Court
 Court of Military AppealsCourt of Military Appeals
 Selecting JudgesSelecting Judges
• Senatorial CourtesySenatorial Courtesy
• The “Litmus Test”The “Litmus Test”

Figure 16.1 Female and MinorityFigure 16.1 Female and Minority
Judicial Appointments, 1963–2004Judicial Appointments, 1963–2004
Source:
Updated from
Harold W.
Stanley and
Richard G.
Niemi,
Vital Statistics
on American
Politics, 2005–
2006
(Washington,
D.C.:
Congressional
Quarterly,
2006), table
7.5.

Figure 16.2 Confirmation Rates forFigure 16.2 Confirmation Rates for
Nominees to the U.S. Court of AppealsNominees to the U.S. Court of Appeals
(1947–2005)(1947–2005)
Source: “The Consequences of Polarization: Congress and the Courts” by Sarah A. Binder, in David Brady
and Pietro Nivola, Eds., Red and Blue Nation? (Vol. 2) Consequences and Correction of America’s Polarized
Politics. Brookings Institutions and Hoover Institution Presses. Reprinted with permission of the author.

Sonia Sotomayor became the third female and first HispanicSonia Sotomayor became the third female and first Hispanic
justice on the Supreme Court. p. 440justice on the Supreme Court. p. 440
Karen Bleier/AFP/Getty Images

The Jurisdiction of the FederalThe Jurisdiction of the Federal
CourtsCourts
 Federal-question cases –Federal-question cases – CasesCases
concerning the Constitution, federalconcerning the Constitution, federal
laws, or treatieslaws, or treaties
 Diversity cases –Diversity cases – Cases involvingCases involving
citizens of different states who cancitizens of different states who can
bring suit in federal courtsbring suit in federal courts
 Writ of certiorari –Writ of certiorari – An order by aAn order by a
higher court directing a lower courthigher court directing a lower court
to send up a case for review.to send up a case for review.

Figure 16.3 The Jurisdiction of theFigure 16.3 The Jurisdiction of the
Federal CourtsFederal Courts
p. 441

Getting to CourtGetting to Court
 In forma pauperisIn forma pauperis
 Fee ShiftingFee Shifting
 StandingStanding
 Class Action SuitsClass Action Suits
Linda Brown was refused admission
to a white elementary school in
Topeka, Kansas. On her behalf, the
NAACP brought a class-action suit
that resulted in the 1954
landmark Supreme Court decision
Brown v. Board of Education. p. 445
Carl Iwasaki/Time Life Pictures/Getty Images

The Supreme Court in ActionThe Supreme Court in Action
 BriefBrief
 Amicus curiaeAmicus curiae
 Per curiamPer curiam opinionopinion
 Opinion of the courtOpinion of the court
 Concurring opinionConcurring opinion
 Dissenting opinionDissenting opinion

The members of the Supreme Court, front row, from left are: AnthonyThe members of the Supreme Court, front row, from left are: Anthony
Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia,Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia,
and Clarence Thomas. Back row, from left are: Samuel Alito, Ruthand Clarence Thomas. Back row, from left are: Samuel Alito, Ruth
Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. P. 447
Charles Dharapak/AP Photo

The Power of the Federal CourtsThe Power of the Federal Courts
 The Power to MakeThe Power to Make
PolicyPolicy
• Stare decisisStare decisis
• Political questionPolitical question
• RemedyRemedy
 Views of JudicialViews of Judicial
ActivismActivism
 Legislation and theLegislation and the
CourtsCourts
The activism of federal courts
is exemplified by the
sweeping orders they have
issued to correct such
problems as overcrowded
prisons. p. 448
Alex Webb/Magnum Photos

Checks on Judicial PowerChecks on Judicial Power
 Congress and the CourtsCongress and the Courts
• ConfirmationsConfirmations
• ImpeachmentImpeachment
• Number of judgesNumber of judges
• JurisdictionJurisdiction
 Public Opinion and thePublic Opinion and the
CourtsCourts
Thurgood Marshall became the
first black Supreme Court
justice. As chief counsel for
the NAACP, Marshall argued
the 1954 Brown v Board of
Education case in front of the
Supreme Court. He was
appointed to the Court in 1967
and served until 1991. p. 452
Bettmann/Corbis

Figure 16.4 Public ConfidenceFigure 16.4 Public Confidence
in the Court, 1974 - 2006in the Court, 1974 - 2006
Source: The Gallup Poll.

M E M O R A N D U MM E M O R A N D U M
To:To: Senator Ann GilbertSenator Ann Gilbert
From:From: Amy Wilson, legislative assistantAmy Wilson, legislative assistant
The Supreme Court has held that the attorney general cannotThe Supreme Court has held that the attorney general cannot
use his authority over federally controlled drugs to blockuse his authority over federally controlled drugs to block
the implementation of the Oregon “Death With Dignity”the implementation of the Oregon “Death With Dignity”
law. Now some of your colleagues want to enact a federallaw. Now some of your colleagues want to enact a federal
equivalent of that law that would allow physicians toequivalent of that law that would allow physicians to
prescribe deadly drugs to patients who request them.prescribe deadly drugs to patients who request them.
WHAT WOULD YOU DO?WHAT WOULD YOU DO?

Arguments for:Arguments for:
1. The law respects the people’s rights to choose the time and1. The law respects the people’s rights to choose the time and
place of their own death.place of their own death.
2. It is already permissible to post “Do Not Resuscitate”2. It is already permissible to post “Do Not Resuscitate”
orders on the charts of terminally ill patients.orders on the charts of terminally ill patients.
3. Physicians can be held to high standards in implementing3. Physicians can be held to high standards in implementing
the law.the law.

Arguments against:Arguments against:
1. The law will corrupt the role of doctors as many think has1. The law will corrupt the role of doctors as many think has
happened in Holland, where a similar law has led somehappened in Holland, where a similar law has led some
physicians to kill patients prematurely or withoutphysicians to kill patients prematurely or without
justification.justification.
2. Such a law will lead some physicians to neglect or ignore2. Such a law will lead some physicians to neglect or ignore
the desires of the patient.the desires of the patient.
3. This law will undermine the more important goal of helping3. This law will undermine the more important goal of helping
patients overcome pain and depression.patients overcome pain and depression.

Your decision:Your decision:
Support the law?Support the law?
Oppose the law?Oppose the law?

The Judiciary

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