Chapter 14 The Judiciary Branch The Federal Courts

• Judicial review: right to rule on laws and executive acts on basis of constitutionality; chief judicial weapon in system of checks and balances • What case established it? • Marbury v. Madison (1803) • Chief Justice John Marshall

• In Great Britain, Parliament is supreme, Specifically the House of Lords • In other countries, judicial review not used • Exceptions: Australia, Canada, Germany, India, and a few others

Debate is over how the Constitution should be interpreted 1. Strict constructionist (interpretivist) approach: judges are bound by the wording of the Constitution Former Chief Justice William Rehnquist 2. Activist (legislative) approach: judges should look to the underlying principles of the Constitution Hary Blackman

The development of the federal courts A. Founders' view 1. Most Founders probably expected judicial review but not its large role in policy making 2. Traditional view: judges find apply existing law 3. Activist judges would later respond that judges make law 4. Hamilton: courts least dangerous branch 5. But federal judiciary evolved toward judicial activism

B. National supremacy and slavery: 1789 -1861 1. Mc. Culloch v. Maryland (1819): federal law declared supreme over state law 2. Interstate commerce clause is placed under the authority of federal law; conflicting state law void Gibbons v. Ogden (1825) 3. Dred Scott v. Sandford (1857): Negroes were not and could not become free citizens of the United States; a direct cause of the Civil War

C. Government and the economy: Civil War to 1936 1. Dominant issue of the period: whether the economy could be regulated by state and federal governments 2. States seek to protect local businesses and employees from the predatory activities of national monopolies; judicial activism 3. The Court interprets the Fourteenth and Fifteenth Amendments narrowly as applied to blacks (Plessy v. Ferguson)

D. The revival of state sovereignty 1. Supreme Court rules that states have right to resist some forms of federal action 2. Hint at some real limits to the supremacy of the federal government

The structure of the federal courts U. S. Supreme Court Other Federal Courts of Appeal (13) Michigan? Cincinnati, OH State Supreme Courts (50) S. C. issues a certificate District Courts (94) Michigan? 2 - Det. , Lansing

Other ways cases get to the Supreme Court • Rule of 4: For a case to get heard, 4 Justices have to agree to hear the case before the whole court gets to hear it (ALWAYS ON AP TEST!!) • Writ of Certiorari: Supreme Court orders this to get a case out of a lower courts and straight to the Supreme Court because of importance. Requires agreement of four justices to hear case. (only used 3 -4%)

What does it take to be a Federal Judge? • • • A J. D. (Jurist Doctorate, law degree) Previous judicial experience Nominated by the President Appointed by the Senate You’re appointed for life, not in legislative courts • Current pay of federal judges is about $159, 000, Supreme Court $184, 000, Chief Justice $192, 600

Federal Judicial Appointments • What is the overwhelming factor in getting appointed? • PERCEIVED PARTY AFFILIATION (SEE CHART)

IV. The jurisdiction of the federal courts Dual court system 1. State and Federal Courts exist side-by-side 2. Federal cases listed in Article III and the Eleventh Amendment of the Constitution Federal Both State

a. Federal question cases: involving U. S. matters, Money Laundering, terrorism… b. Diversity cases: involving citizens of different states, civil rights, hate crimes… c. All others are left to state courts Both Federal State Taxes Money Laund.

V. Getting to court Deterrents 1. The Court rejects 95 percent of applications 2. Costs of appeal are high ($$$$$) a. But these can be lowered by: (1) In forma pauperis: plaintiff heard as pauper, with costs paid by the government (2) Payment by interest groups who have something to gain (American Civil Liberties Union)

b. Each party must pay its own way except for cases in which it is decided 1. That losing defendant will pay (fee shifting) 2. Class action suits 1. Brought on behalf of all similarly situated 2. Financial incentives to bring suit 3. Need to notify all members of the class since 1974 to limit such suits

VI. The Supreme Court in action A. Oral arguments by lawyers after briefs submitted 1. Questions by justices cut down to 30 minutes (Both Sides have 1 Hour max) 2. Role of solicitor general (State’s Pres. Position) - Green Light, Red Light (video) No Video Cameras (1927) Cases are audio taped Justices interact

B. Conference procedures 1. Role of chief justice: speaking first, voting last, leads discussion 2. Selection of opinion writer: concurring and dissenting opinions C. Voting patterns of the court 1. Liberal and conservative blocs a. Civil liberties issues (Conservatives much less lenient) b. Economic issues (Liberals much less lenient) 2. Swing votes (See other PPT. ) 3. Blocs on the Burger/Rehnquist court (See other PPT. )

Types of Opinions • • • Rulings take several months Majority Decision Concurring Opinion Dissenting Opinion Reason for delay? Research! They have clerks from two schools help. From where? • Harvard • Yale

VII. The power of the federal courts A. The power to make policy 1. By interpretation 2. By extending reach of existing law 3. By designing remedies

Views of judicial activism 1. Supporters a. Courts should correct injustices b. Courts are last resort 2. Critics a. Judges lack expertise b. Courts not accountable; judges not elected

3. Various reasons for activism a. Too many lawyers; but real cause adversary culture b. Easier to get standing in courts c. Laws and the Constitution are filled with vague language: -Ambiguity gives courts opportunities to design remedies -Courts can interpret language in different ways d. laws induce (encourage) litigation

VIII. Checks on judicial power 1. Judges are not immune to politics or public opinion (decisions can be ignored) - School Prayer, Trail of tears, etc. 2. Congress and the courts -Changing the number of judges, Revising legislation declared unconstitutional 3. Public opinion and the courts -Defying public opinion, especially elite opinion, frontally is dangerous