Political Science: An Introduction Judiciaries: (Jeff Christensen/AP Photo)

Political Science: An Introduction
Chapter 15
Judiciaries
(Jeff Christensen/AP Photo)

Copyright @ 2012, 2010, 2008 Pearson Education, Inc. All rights reserved.
Roots of Law
 Higher law – an old concept that grew out of the

Christian melding of Greek philosophy with Judeo-
Christian thought
 Natural law – developed by medieval Catholic

theologians, argues that some law is basic to human
nature and can be understood just by thinking about it
 Positive law – written and compiled by humans over the

centuries
Types of Law
 Criminal Law
 Offenses that are considered social evils and threats to the
community – the state is the plaintiff, or prosecutor
 Petty offenses – Minor crimes usually punished by a fine, such as
traffic violations
 Misdemeanors – More serious crimes, such as gambling,
punishable by larger fines or short jail sentences
 Felonies – Major crimes, such as robbery, punished by
imprisonment
Types of Law
 Civil Law
 Provides redress for private plaintiffs who can show they have
been injured
 In most English-speaking countries, common law supplements
statutory law in civil cases
 Marriage and divorce, inheritance, contracts, and bankruptcy are
civil concerns
 Decisions are in dollars not jail time
 Constitutional Law
 Written constitutions are usually general documents; legislation
and court interpretation must fill in the details
 In the United States the ultimate responsibility of interpreting the
Constitution rests with the U.S. Supreme Court; laws change
over time
 Constitutional law (indeed, law itself) is not static but a living,
growing institution
Types of Law
 Administrative Law
 A relatively recent development, administrative law covers
regulatory orders by government agencies
 Federal agencies write regulations to interpret and implement
laws passed by Congress
 The regulations and case law build up to provide guides for how
agencies and the public may interpret statutes
 International Law
 Consists of treaties and established customs recognized by most
nations
 Differs from domestic law in that compliance is voluntary by
countries
 Key mechanisms are reciprocity (treat other countries nicely) and
consistency (applying the same standards to all countries)
The Courts, the Bench, and the Bar
 The U.S. Court System
 Our court system is unique, consisting of 51 judicial structures;
the federal system plus 50 state systems, which overlap
 The National Court Structure

 The 94 federal district courts form the base of the U.S. national
court system
 Their decisions may be appealed to the 13 U.S. courts of appeal;
they consider only whether the law has been misinterpreted or
misapplied
 The U.S. Supreme Court hears appeals from the courts of
appeal; the Supreme Court can choose what cases it wants to
hear, usually cases involving an important constitutional question
 The State Court System
 Each of the 50 states has its own court systems, and those court
systems handle perhaps 90 percent of the nation’s legal business
 Most cases are civil, not criminal
 Judges
 Federal judges are nominated by the president and approved by the
Senate
 To free them from executive and political pressure, they may
serve for life unless impeached
 The president considers the reputation-based ratings of
prospective judges by the American Bar Association (ABA)
 Senate approval used to be routine but is now highly political
 Judges
 State judges are either popularly elected or appointed, for terms
ranging up to 14 years
 Both parties often nominate the same slate of judges so that the
judicial elections have become largely nonpartisan
 Some argue that elected state judges turn into crowd-pleasing
politicians with shaky judicial skills
 Others counter that appointed state judges can be the governor’s
political pals
Comparing Courts
 Anglo-American Adversarial and Accusatorial Process

 English and American courts are passive institutions that do not
look for injustices to correct or lawbreakers to apprehend
 The system operates on an adversarial and accusatorial basis.
 In the adversary process, two sides (plaintiff and defendant)

compete for a favorable decision from an impartial court
 One weakness of the adversarial system—especially when

applied in poor, developing countries—is that the decision often
goes to the side that can hire the best attorney
Comparing Courts
 British Court System

 Selection and Tenure of Judges – nominally appointed by
monarch, who really uses choices of the prime minister
 Judges have lifetime tenure and are above politics
 Britain adopted European Convention on Human Rights,
permitting judges to review statutes and police conduct
 The European Court System
 In the U.S. system, the accused is presumed innocent until
proven guilty; in Europe the assumptions are nearly reversed
 For the most part, the role of the European lawyer is not as vital
or creative as that of the American lawyer, for the court takes the
initiative in discovering the facts of the case
The Role of the Courts
 Judicial review is more highly developed in the United

States than in any other country, and Americans expect
more of their courts than do other peoples
 European court structures tend not to do as much as

U.S. courts do
 In Switzerland, cases from cantonal (state) courts come

to the Federal Tribunal which rules whether cantonal law
violates the Swiss constitution
 The German Constitutional Court reviews statutes to be

sure they are in accord with the constitution
 The U.S. Supreme Court
 The Supreme Court’s power of judicial review was not specified
in the Constitution
 Chief Justice John Marshall asserted the right of the Supreme

Court to judge on statutes’ constitutionality in Marbury v. Madison
(1803)
 “Judicial activists,” argue that the Court should actively protect

the Bill of Rights
 Advocates of “judicial restraint,” argue that only Congress should

make public policy, only striking down a law that clearly violates
the Constitution
 The Supreme Court’s Political Role

 Unlike other countries, the Supreme Court’s rulings often become
political issues
 FDR threatened to pack the Court with new judges when the
Supreme Court repeatedly struck down New Deal programs
 Nixon charged that the Warren Court had worsened crime with its
extension of protections to those accused of a crime
 The Views of Judges

 Critics claim that justices, given their backgrounds, cannot
appreciate the situation of poor
 Party affiliation and the justice’s conception of judicial role seem
the most important influences on their stands
 Many justices believe the Court should stand firm on certain
constitutional protections, especially the Bill of Rights, against
public opinion
 The opinions of other justices may also affect decisions
 Justices with life tenure may be most important – they are
relatively immune from political pressures; may act in
unpredictable ways without fear of consequences
The Political Impact of the Court
 The Warren Court was active and controversial in three
key areas where it rewrote constitutional law
 Civil Rights
 The Brown (1954) decision triggered a revolution in American
race relations that Congress had been unwilling to touch
 Criminal Procedure
 In Mapp v. Ohio the Court ruled that evidence seized without a
warrant was inadmissible in court
 In Gideon v. Wainwright the Court ruled that indigent defendants
had a right to state-supplied legal counsel
 Miranda v. Arizona determined that arresting police had to inform
the arrested person of their rights
The Political Impact of the Court
 Legislative Reapportionment
 The Warren Court mandated that districts for the House of
Representatives had to be of equal population; previously many
of them overrepresented rural districts
 The Warren Court decisions angered many: segregationists

who did not want to share public facilities with blacks, police
who felt hampered in getting criminal convictions
 The Warren Court was perhaps the most ground-breaking

court in U.S. history
The Post-Warren Courts
 The Burger Court (1969–1986) and the Rehnquist Court(1986–
2005) were sometimes characterized as conservative, an effort to
roll back the Warren Court
 The Burger Court affirmed the right to privacy in Roe v. Wade, but
overturned quotas for black applicants to medical school in Bakke
 The Rehnquist Court ruled that burning the American flag was legal,
and upheld university affirmative-action programs to promote
diversity
 The Roberts Court put more limits on Roe v. Wade, but allowed
federal authority to curb greenhouse gases
 Sometimes, liberal and conservative hard to define: Roberts Court
upheld right of habeas corpus for terrorist suspects, which was
“conservative” in upholding part of the Constitution

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Political Science: An Introduction

(Jeff Christensen/AP Photo)

 Higher law – an old concept that grew out of the

 Natural law – developed by medieval Catholic

 Positive law – written and compiled by humans over the

 The National Court Structure

 Anglo-American Adversarial and Accusatorial Process

 The system operates on an adversarial and accusatorial basis.

 In the adversary process, two sides (plaintiff and defendant)

 One weakness of the adversarial system—especially when

 British Court System

 Judicial review is more highly developed in the United

 European court structures tend not to do as much as

 In Switzerland, cases from cantonal (state) courts come

 The German Constitutional Court reviews statutes to be

 Chief Justice John Marshall asserted the right of the Supreme

 “Judicial activists,” argue that the Court should actively protect

 Advocates of “judicial restraint,” argue that only Congress should

 The Supreme Court’s Political Role

 The Views of Judges

 The Warren Court decisions angered many: segregationists

 The Warren Court was perhaps the most ground-breaking

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