The Judicial Branch

The Judicial Branch: History

• In Federalist 78, Alexander Hamilton wrote
that the “least dangerous” branch of
government was the judicial branch. It did not
command the sword like the president or the
purse strings like Congress. Nowhere in the
Constitution was the Supreme Court given the
right to declare laws of Congress or the
decisions of the president unconstitutional.
 Judicial Branch: History
12 years later,
Court said that
Congress was not
confined to passing By the mid 1800s,
Supreme Court laws on the basis of the Supreme Court
asserted that the powers explicitly had begun to
Within a few years
Court could decide given in the declare many

whether a law was Constitution but federal and scores
unconstitutional  could do whatever of state laws to be
was “necessary and unconstitutional.
proper” in order to
implement those
powers 
 Judicial Branch
• This growth in power caused justices to stay on the Supreme Court longer.
Washington’s appointed justices stayed an average of 7 years while those
nominated by Andrew Jackson 20 years later served an average of 20
years.
 Judicial Branch
• Over time the Senate has become more
and more stringent when it comes to their
approval of justices and federal appeals or
district court judges.
• Why?
• Because of the increasingly important
role the courts now hold in making public
policy.
 Judicial Branch
• The Courts (not Congress) decided abortion should be legal, settled the
closely contested 2000 presidential election, allowed private homes to be
seized in order to a residential hotel and other private structures aimed at
affluent clientele.
 Judicial Branch
• Judicial review: the power of courts to declare laws unconstitutional.
• Since 1789 the Supreme Court has declared 160 federal laws to be
unconstitutional.
• Two approaches to how the Supreme Court should engage in judicial review:
• Judicial restraint approach: The view that judges should decide cases strictly on
the basis of the language of the laws and the Constitution.
• Activist approach: The view that judges should discover the general principles
underlying the Constitution and its often-vague language, amplify those principles
on the basis of some more or economic philosophy and apply them to modern cases.
 Judicial Branch

• Initial understanding of what the courts would do: judge disputes between people who had direct
dealings with each other or entered into a contract. For example, one person dropped a load of bricks on
the other’s toe, courts decide which of the two parties was right. Court would then provide relief to the
wronged party.
• Judges were supposed to find and apply existing law. The purpose of the court was not to learn what
the judge believes but what the law requires. Judicial activism occurred when judges questioned this
traditional view and argued instead that judges do not merely find the law, they make the law.
• The view that judges interpret the law, not make policy, makes it easy for the Founders to justify
judicial review. They thought that the Courts would play a neutral, even passive role, in public affairs.
 Judicial Branch: 3 Eras
• National Supremacy and Slavery
• Marbury v. Madison (1803): Supreme Court decided that the Supreme Court could
declare an act of Congress unconstitutional.
https://www.youtube.com/watch?v=hOvsZyqRfCo
• https://www.youtube.com/watch?v=wNlilK7uuT4
• McCulloch v. Maryland (1819): powers granted by the Constitution to the federal
government flow from the people and should be generously construed; federal law is
supreme over state law.
• Commerce and the Dred Scott case
 Judicial Branch: 3 Eras
• Government and the Economy:
• End of the Civil War  early years of the New Deal
• Main question: when is the economy regulated by the states and when by the nation?
• The Court tended to have a strong attachment to private property (Locke) and held
up the sanctity of contracts.
• However, as the federal government started being considered supreme and the
national economy grew, the property question became a dominant one.
 Judicial Branch

• No state shall “deprive any person of life, liberty, or property, without due process of
law”; once it became clear that a person could be a firm or corporation as well as an
individual, the courts were flooded with industries challenging government regulations.
• The Court found itself in a thicket: it began ruling on the constitutionality of virtually
every effort by any government to regulate any aspect of business or labor, and its
workload increased sharply.
• After 1936, the Supreme Court stopped imposing any serious restrictions on state or
federal power to regulate the economy, leaving such matters in the hands of the
legislatures.
 Judicial Branch
• The Court always saw itself as protecting citizens from arbitrary
government; but before 1937 it was the kind of protection conservatives
preferred, after 1937 it was the kind liberals preferred.
 Judicial Branch: 3 Eras
• Civil Rights and Civil Liberties
• Brown v Board of Education (1954)
 Judicial Branch: State Sovereignty
• States argued that the Affordable Care Act’s requirement that everyone
purchase health insurance was unconstitutional---the issue was whether or not
Congress’s authority to levy taxes or to regulate interstate commerce gave it the
right to require citizen to purchase a product. --- Supreme Court ruled in favor
of this saying that the penalty is a tax and therefore permissible.
• But Supreme Court struck down the law’s mandate that state governments
expand Medicaid coverage by 2014, ruling that the provision “violates the
Constitution” by impermissibly “threatening States with the loss of their
existing” federal funding for the program.
Judicial Branch: The Structure, Jurisdiction,
and Operation of the Federal Courts

The only federal court the
Constitution requires is the
Supreme Court. Constitution
doesn’t say how many SC
justices there are supposed
to be (were 6, now 9)
All other federal courts and
their jurisdictions are
creations of Congress.
Congress created courts to
handle cases the SC doesn’t
need to handle.
 Judicial Branch: Constitutional and
Legislative Courts
• Constitutional Court: one exercising the judicial powers found in Article III of the
Constitutions, and therefore its judges are given constitutional protection: They may not be
fired (they serve during “good behavior), nor may their salaries be reduced while they are in
office
• District Courts: (94) the lowest federal courts; federal trials can be held only here
• Court of appeals: (1 in 11 regions and one in District of Columbia and one federal circuit)
hear appeals from district courts, no trials
• Various specialized constitutional courts exist such as the Court of International Trade
• Legislative courts: set up by Congress for specialized purposes, whose judges do not enjoy
the protections of Article III of the Constitution
 Judicial Branch: Selecting Judges
• Research shows that judges who are Democrats are more likely to make
liberal decisions and Republican judges are more likely to conservative
ones. (A liberal decision is one that favors a civil right, a criminal
defendant, or an economic regulation; a “conservative” one opposes the
right or the regulation or supports the criminal prosecutor.)
 “blue slip” complaint: senators from the home
state of an appeals court nominee can file a private
objection to the nominee.

Judicial If filed by a Judiciary committee member, it

Branch: prevents a hearing on the nominee to be held.
Sometimes this is because the senator doesn’t like
Senatorial the nominee but sometimes it is just to compel the
president to do something he or she wants on an
unrelated matter.
Courtesy These are been used much more during the past 3
presidencies.
Judicial Branch: Senatorial Courtesy

The reality of district judge

Presidents are trying more
appointment is this: “The
and more to pick
senators shall nominate,
candidates who reflect the
and by and with the
political and judicial
consent of the President,
philosophy of the
shall appoint” federal
president.
judges
 Judicial Branch
• Different courts of appeals have different combinations of judges, with
some being more liberal and some being more conservative.
• Sometimes different sections of the country are living under a different
interpretation of the law if the Supreme Court has not been able to settle a
dispute among courts of appeals.
District and
Appellate
Courts
 • Litmus test: a test of ideological purity
(many people would like to see judges
picked on the basis of professional
qualifications, without reference to ideology,
but the courts are now so deeply involved in
political issues that it is hard to imagine
what an ideologically neutral set of
professional qualifications might be).
Judicial • A judicial nominee’s view on abortion is the
Branch chief motive for using the litmus test
(cloture and the filibuster).
• Of the 160 Supreme Court nominees
presented to it, the Senate failed to confirm
36 of them.
• District court judge nominations are rarely
defeated because no nomination is made Judicial
unless the key senators approve in advance. Branch
 Federal question cases: cases concerning the
Constitution, federal laws, or treaties

Judicial Diversity cases: cases involving citizens of

different states who can bring suit in federal courts
Branch:
State vs Under the dual sovereignty doctrine, state and
federal authorities can prosecute the same person
Federal for the same conduct.

Courts State law violations can be tried in federal court if

appealed and the federal court can overturn state
ruling. When this is ok has been the subject of a
long-standing controversy.
 • The Supreme Court does not have to hear
any appeal it does not want to hear (at one
time it was required to listen to certain
appeals, but Congress has changed the law
so that now the Court can pick the cases it
wants to consider --- Consider Congress’s
power in this regard)
The Supreme • Writ of certiorari: (Certiorari is a Latin
Court word meaning – “made more certain”)
the Supreme Court considers all the
petitions it receives to review lower court
decisions; i four justices agree to hear a
case, cert is issued and the case is scheduled
for a hearing.
 In 2009, the 667 district court judges received
276,397 cases (more than 400 per judge)

The Usually the Court only considers cases where

significant federal or constitutional questions
Supreme have been raised.

Court
The Court may consider 7000 petitions asking
it to review decisions of lower or state courts
but rarely accepts more than about 100 of
them for full review. The Court’s work load
has grown 4 times over the past 50 years.
 In forma pauperis: a method whereby
a poor person can have his or her case
heard in federal court without charge
Fee shifting: a rule that allows a
The plaintiff to recover costs from the
defendant if the plaintiff wins
Supreme Plaintiff: the party that initiates a
Court lawsuit

Standing: a legal rule stating who is

authorized to start a lawsuit
 The Supreme Court
• In order to challenge the laws or actions of government itself three
standings must be met:
• An actual controversy must exist between real adversaries
• You must show that you have been harmed by the law or practice about which you
are complaining
• Merely being a taxpayer does not ordinarily entitle you to challenge the
constitutionality of a federal governmental action
 The Supreme Court
• Sovereign immunity: The rule that a citizen cannot sue the government
without the government’s consent.
• Class action suit: A case brought by someone to help both him – or
herself and all others who are similarly situated (Brown vs. Board of
Education)
 The Supreme Court
• Brief: A written statement by an attorney that summarizes a case and the laws
and rulings that support it. Lawyers are limited to in their oral arguments to the
SC. (The lawyer speaks from a lectern that has two lights on it. When the white
light goes on, the attorney has five minutes remaining; when the red flashed, he
or she must stop----instantly)
• Amicus curiae: a brief is from an interested party not directly involved in the
suit.
• Law Reviews are also consulted, which means that the outside world of lawyers
and law professors can help shape or at least supply arguments for the
conclusions of the justices.
 The Supreme Court
• The justices retire every Friday to their conference room, where, in
complete secrecy they debate the cases they have heard.
• The chief justice speaks first, followed by the other justices in order of
seniority.
• After the arguments, they vote, traditionally in reverse order of
seniority...by this process an able Chief Justice can exercise considerable
influence ---- in guiding or limiting debate, in setting forth the issues, and
in handling sometimes temperamental personalities.
 The Supreme Court

• Per curiam opinion: a brief, unsigned court opinion (SC)

• Opinion of the Court: a signed opinion of a majority of the Supreme
Court.
• Concurring opinion: opinion by one or more justices who agree with the
majority’s conclusion but for different reasons that they wish to express
• Dissenting opinion: the opinion of the justices on the losing side
 The Supreme Court
• In most instances, the courts are simply applying a relatively settled body
of law to a specific controversy (bank robbery; contract controversies;
personal injury cases etc)
• The Power to Make Policy
• The courts make policy whenever they reinterpret the law or the Constitution in
significant ways, extend the reach for existing laws to cover matters not previously
thought to be covered by them, or design remedies for problems that involve the
judges’ acting in administrative or legislative ways.
 The Supreme Court
• Stare decisis: “let the decision stand”; allowing prior rulings to control a current
case. This is the principle of precedent: a court case today should be settled in
accordance with prior decisions on similar cases.
• Political questions: an issue the supreme court will allow the executive and
legislative branches to decide.
• For instance, the Court refused for a long time to hear a case about the size of congressional
districts no matter how unequal their populations because it was regarded as something the
Constitution left entirely to another branch of government. But this notion became much
less important after the Court changed its mind and said it could handle this matter in 1962.
 The Supreme Court
• Remedy: a judicial order enforcing a right or redressing a wrong...
• The Courts said that the Civil Rights Act meant that Chinese students unable to
speak English should be taught English (and this extended to all schools since it’s
the law of the land); so other courts said that this meant classes must be taught in
Spanish to Spanish students. What is important is that it was the Court, not
Congress, that decided what Congress meant.
 The Supreme Court: Congressional
Oversight
• Can impeach federal judges/justices
• Confirm federal judges
• Can alter the number of judges
• Congress can undo a Supreme Court decision interpreting the Constitution
by amending that document.
• This happens, but rarely. The thirteenth, fourteenth, and fifteenth amendments were
ratified to undo the Dred Scott decision regarding slavery. The 16th amendment was
added for Congress to pass an income tax and the 26th to give the vote to 18-year olds.
 The Supreme Court: Congressional
Oversight
• In more than 30 occasions, Congress has merely repassed a law that the
Court has declared unconstitutional.
• Congress can decide what the entire jurisdiction of the lower courts and
the appellate jurisdiction of the Supreme Court shall be. In theory,
Congress could prevent matters on which it did not want federal courts to
act from ever coming before the courts.
• Congress has only done this a few times, but the threat is influential on the nature of
Court decisions.
 The Supreme Court
• The role of the Court has coincided with the role and expectations of
government. In 1890, hardly anybody would have thought of asking
Congress---much less the Courts---to make rules governing the
participation of women in college sports of the district boundaries of state
legislatures.