THE LEAST DANGEROUS BRANCHArticle III: Only 370 WordsFew specific enumerated powers Could NOT appropriate money or enforce decisionsJustices appointed for life, “during good Behavior” Decision-Making in Private Rarely in the MediaWHY SO INSULATED? (Remember Electoral Connection)The idea is that judges, free from popular pressure, could adhereto the Constitution rather than listening to a reactionary andintemperate public.
CLICKER QUESTIONDo you believe federal judges should beappointed for life or for a limited tenurewith the option of reappointment?A. Federal judges should be appointed forlife.B. Federal judges should be appointed fora limited tenure with the option ofreappointment.
KEEPERS OF THE CONSTITUTIONJustice Since? By Whom? Ideology? Age?John Roberts 2005 W. Bush Conservative 55Antonin Scalia 1986 Reagan Conservative 74Anthony Kennedy 1988 Reagan Conservative 74Clarence Thomas 1991 H.W. Bush Conservative 62Ruth Ginsburg 1993 Clinton Liberal 77Stephen Breyer 1994 Clinton Liberal 72Samuel Alito 2006 W. Bush Conservative 60Sonia Sotomayor 2009 Obama Liberal 56Elena Kagan 2010 Obama Liberal 50 AVERAGE = 64.5 Any Problems Here?
CLICKER QUESTIONSHOULD Supreme Court justices use public opinion to form their decisions? a) Yes b) No
PROPOSAL 1: TERM LIMITS The term for each Supreme CourtJustice will be limited to 18 years of service AND, the terms will bestaggered such that a new Justice is appointed every 2 years. (Assuming 9 justices) Disclaimer: Even though Rick Perry has suggested this in his book “Fed Up!” it is still a reasonable idea and should not be immediately disqualified!
CLICKER QUESTIONDO you support Term Limits for Supreme Court Justices? a) Yes b) No
PROPOSAL 2: SUPERMAJORITY Decisions of the SupremeCourt shall only be considered binding if the decision iscarried by a supermajority of the Court. (6-3 or 7-2 or 8-1 or 9-0)
CLICKER QUESTIONDO you support Supermajoritarian decisions for the Supreme Court? a) Yes b) No
PROPOSAL 3: EXPLICIT IDEOLOGY Change the size of the Court toan even number (8 or 10 come to mind) and require an equal number of liberal and conservative Justices.Tie decisions will be rejected and the decision of the lower court will stand.
CLICKER QUESTIONDO you support having an Explicitly Ideological Court? a) Yes b) No
PROPOSAL 4: ELECTED SCOTUS The process of choosingJustices for the Supreme Court should involve citizens. Direct election of Justices is Required!
CLICKER QUESTIONDO you support Direct Election of Supreme Court justices? a) Yes b) No
CLICKER QUESTIONThe authority and the obligation to reviewany law or lower-court decision where asubstantial issue of public law is involvedis the definition of a)writ of review. b)judicial review. c)standing. d)due process.
JUDICIAL REVIEWJUDICIAL REVIEW – The power of the Court toexamine and invalidate actions undertaken by the legislativeand executive branches.Includes the power to: REVIEW the actions of Congress REVIEW the actions of the states REVIEW of presidential actions REVIEW of the actions of federal agenciesWhat Article and Section of the Constitution outlines Judicial Review?
MARBURY V. MADISONSummary: Caught in a Catch-22, Chief JusticeMarshall and SCOTUS “sidestepped” the issue bydeciding that the Judiciary Act of 1789 wasunconstitutional because it expanded the OriginalJurisdiction of the court as defined in Article III.So, in declaring this law UN-constitutional, theyexerted (created) a power that was EXTRA-constitutional (It’s not in there either!)
USING JUDICIAL REVIEWThe power of Judicial Review was not used again(after Marbury v. Madison) until 1857 – DredScott v. Sanford1789-2002 Acts of Congress Held as Unconstitutional 1581789-2002 State Statutes Held Unconstitutional 9351789-2002 City Ordinances Held Unconstitutional 222 TOTAL 1315*Do note that ~50% of theses instances haveoccurred since 1960.
JUDGES AS POLICYMAKERSIn a Common Law system (based on Stare Decisis, precedents)judges are most certainly policymakers! While we try to insulatethe judicial selection process from political pressures, one shouldnot expect judges or Justices to be apolitical beings!Judicial Activism – An approach to judicial decision makingwhereby judges apply their authority to bring about specificsocial goals. *Can be either Liberal OR Conservative The Warren Court (1953-1969) – Liberal, Active The Rehnquist Court (1986-2005) – Conservative, ActiveJudicial Restraint – An approach to judicial decision makingwhereby judges defer to the democratically elected legislative andexecutive branches of government. LIVING CONSTITUTION VS. DEAD CONSTITUTION?
USING JUDICIAL REVIEW JURISDICTIONArticle III of the constitution gives the Supreme Court two jurisdictions: Original: Hear a case first, usually in trial Hear the facts of the case For example: federal district courts have original jurisdiction over cases where the U.S. is a party Appellate: Cases brought to them on appeal from other courts Do not hear facts of the case, only legal issues
U.S. FEDERAL COURT SYSTEM(1-12) 3 (13th Circuit) 21 1. U.S. District Courts (94) 2. U.S. Courts of Appeals (13) 3. Supreme Court (1)
1. FEDERAL DISTRICT COURTS (ORIGINAL JURISDICTION)Most cases in the federal court system are first heard in one ofthe 94 district courts, and most of the business of the federalcourts takes place at this level.This is the only level of federal court that uses juries andwitnesses. *Can be jury or bench trial~300K cases filed each year: 80% civil; 20%criminalEach state has at least 1, large states like California can have 4 – Georgia has 3 districts: North, Middle, South*Cases include everything from criminal prosecutions broughtby the United States to anti-trust cases, to commercial andcontract disputes between citizens (businesses) of 2 or morestates.
2. U.S. COURTS OF APPEAL (APPELLATE JURISDICTION)The United States is divided into 12 geographic regions(circuits) to hear appeals from the district courts.There is also a 13th appeals court, called the U.S. Courtof Appeals for the Federal Circuit, located inWashington, D.C.Federal Circuit – Has national appellate jurisdictionover cases dealing with patent law, cases appealed fromthe “special” district courts, and those in which the U.S.government is a defendant.
APPELLATE COURTSEmpowered to review all final decisions of the 94 district courts -No factual evidence can be introduced, no witnesses are called orcross-examined-instead lawyers submit briefsThe ruling is usually accompanied by an opinionOnce appellate decisions are published they become precedentsThese precedents are followed as the basis for legal reasoning inother cases – stare decisis (“stand by what is decided”)Stare Decisis - There are two components…The first is the rulethat a decision made by a higher court is binding precedent which alower court cannot overturn. The second is the principle that acourt should not overturn its own precedents unless there is astrong reason to do so and should be guided by principles fromlateral and lower courts.
3. THE SUPREME COURTA court of both original jurisdiction and appellatejurisdictionThe size of the Court is determined by Congress; thenumber has been set at nine since 1869.The decisions and opinions of the Supreme Courtbecome the most important sources of precedent onfederal and constitutional questions for courts at all levelsof jurisdiction.Supreme Court Original Jurisdiction – Cases involvingambassadors and diplomats; cases in which a state is aparty (5% of all cases)
3 Routes tothe SupremeCourt 30% of casescome from State Supreme CourtDecisions if they raise a“Constitutional Question.”
THE SUPREME COURT IN ACTIONMost cases do not make it to the Supreme Court… The Court has Control over access. HOW? Actual Number of Cases Heard
RULES OF ACCESSThe Supreme Court has rules over which cases it will or will not hear. Cases must meet criteria in three major categories: 1. Case or controversy: Courts may only review cases that are an actual controversy, not a hypothetical one. 2. Standing: Parties to a case must have standing (the right of an individual or organization to initiate a court case, on the basis of their having a substantial stake in the outcome of the case). 3. Mootness: This is a court criterion to screen cases that no longer require resolution.
GRANTING “CERT”Writ of Certiorari – (sir-she-o-rare-e) A decision by theSupreme Court to hear an appeal from a lower court.Decided using the “rule of four” - Done specifically toprevent a majority of the court from controlling all thecases it agrees to hearThe court grants “cert” less than ~70ish times/yearfrom the more than 9,500 that are filedWhy wouldn’t the Court grant cert? Issue may be too controversial May wish to avoid split decisionIf cert is denied, decision of the lower court stands
DECIDING CASESCases granted “cert” are scheduled for oral argumentOne Hour (30 minutes per side)Briefs are submitted by lawyers on each side in addition tointerest groups, and other concerned parties (amicus curiae)After oral arguments, justices meet in conference to reach adecisionVotes in conference are not final; judges can change theirvotes in response to the majority opinionVariety of opinions:Opinion of the Court, Concurring Opinion,Dissenting Opinion, Concurring Dissenting OpinionOnce an opinion is completed a final vote is taken