3. THE LEAST DANGEROUS BRANCH
Article III: Only 370 Words
Few specific enumerated powers
Could NOT appropriate money or enforce decisions
Justices appointed for life, “during good Behavior”
Decision-Making in Private
Rarely in the Media
WHY SO INSULATED? (Remember Electoral Connection)
The idea is that judges, free from popular pressure, could adhere
to the Constitution rather than listening to a reactionary and
intemperate public.
4. CLICKER QUESTION
Do you believe federal judges should be
appointed for life or for a limited tenure
with the option of reappointment?
A. Federal judges should be appointed for
life.
B. Federal judges should be appointed for
a limited tenure with the option of
reappointment.
5. KEEPERS OF THE CONSTITUTION
Justice Since? By Whom? Ideology? Age?
John Roberts 2005 W. Bush Conservative 55
Antonin Scalia 1986 Reagan Conservative 74
Anthony Kennedy 1988 Reagan Conservative 74
Clarence Thomas 1991 H.W. Bush Conservative 62
Ruth Ginsburg 1993 Clinton Liberal 77
Stephen Breyer 1994 Clinton Liberal 72
Samuel Alito 2006 W. Bush Conservative 60
Sonia Sotomayor 2009 Obama Liberal 56
Elena Kagan 2010 Obama Liberal 50
AVERAGE = 64.5
Any Problems Here?
10. PROPOSAL 1: TERM LIMITS
The term for each Supreme Court
Justice will be limited to 18 years of
service AND, the terms will be
staggered 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!
12. PROPOSAL 2: SUPERMAJORITY
Decisions of the Supreme
Court shall only be considered
binding if the decision is
carried by a supermajority of
the Court.
(6-3 or 7-2 or 8-1 or 9-0)
13. CLICKER QUESTION
DO you support Supermajoritarian
decisions for the Supreme Court?
a) Yes
b) No
14. PROPOSAL 3: EXPLICIT IDEOLOGY
Change the size of the Court to
an 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.
16. PROPOSAL 4: ELECTED SCOTUS
The process of choosing
Justices for the Supreme Court
should involve citizens.
Direct election of Justices is
Required!
18. CLICKER QUESTION
The authority and the obligation to review
any law or lower-court decision where a
substantial issue of public law is involved
is the definition of
a)writ of review.
b)judicial review.
c)standing.
d)due process.
19. JUDICIAL REVIEW
JUDICIAL REVIEW – The power of the Court to
examine and invalidate actions undertaken by the legislative
and 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 agencies
What Article and Section of the Constitution outlines
Judicial Review?
20. MARBURY V. MADISON
Summary: Caught in a Catch-22, Chief Justice
Marshall and SCOTUS “sidestepped” the issue by
deciding that the Judiciary Act of 1789 was
unconstitutional because it expanded the Original
Jurisdiction of the court as defined in Article III.
So, in declaring this law UN-constitutional, they
exerted (created) a power that was EXTRA-
constitutional (It’s not in there either!)
21. USING JUDICIAL REVIEW
The power of Judicial Review was not used again
(after Marbury v. Madison) until 1857 – Dred
Scott v. Sanford
1789-2002 Acts of Congress Held as Unconstitutional 158
1789-2002 State Statutes Held Unconstitutional 935
1789-2002 City Ordinances Held Unconstitutional 222
TOTAL 1315
*Do note that ~50% of theses instances have
occurred since 1960.
22. JUDGES AS POLICYMAKERS
In a Common Law system (based on Stare Decisis, precedents)
judges are most certainly policymakers! While we try to insulate
the judicial selection process from political pressures, one should
not expect judges or Justices to be apolitical beings!
Judicial Activism – An approach to judicial decision making
whereby judges apply their authority to bring about specific
social goals.
*Can be either Liberal OR Conservative
The Warren Court (1953-1969) – Liberal, Active
The Rehnquist Court (1986-2005) – Conservative, Active
Judicial Restraint – An approach to judicial decision making
whereby judges defer to the democratically elected legislative and
executive branches of government.
LIVING CONSTITUTION VS. DEAD
CONSTITUTION?
23. USING JUDICIAL REVIEW
JURISDICTION
Article 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
24. U.S. FEDERAL COURT SYSTEM
(1-12) 3 (13th
Circuit)
2
1
1. U.S. District Courts (94)
2. U.S. Courts of Appeals (13)
3. Supreme Court (1)
25. 1. FEDERAL DISTRICT COURTS (ORIGINAL JURISDICTION)
Most cases in the federal court system are first heard in one of
the 94 district courts, and most of the business of the federal
courts takes place at this level.
This is the only level of federal court that uses juries and
witnesses.
*Can be jury or bench trial
~300K cases filed each year: 80% civil; 20%
criminal
Each 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 brought
by the United States to anti-trust cases, to commercial and
contract disputes between citizens (businesses) of 2 or more
states.
26. 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. Court
of Appeals for the Federal Circuit, located in
Washington, D.C.
Federal Circuit – Has national appellate jurisdiction
over cases dealing with patent law, cases appealed from
the “special” district courts, and those in which the U.S.
government is a defendant.
28. APPELLATE COURTS
Empowered to review all final decisions of the 94 district courts -
No factual evidence can be introduced, no witnesses are called or
cross-examined-instead lawyers submit briefs
The ruling is usually accompanied by an opinion
Once appellate decisions are published they become precedents
These precedents are followed as the basis for legal reasoning in
other cases – stare decisis (“stand by what is decided”)
Stare Decisis - There are two components…The first is the rule
that a decision made by a higher court is binding precedent which a
lower court cannot overturn. The second is the principle that a
court should not overturn its own precedents unless there is a
strong reason to do so and should be guided by principles from
lateral and lower courts.
29. 3. THE SUPREME COURT
A court of both original jurisdiction and appellate
jurisdiction
The size of the Court is determined by Congress; the
number has been set at nine since 1869.
The decisions and opinions of the Supreme Court
become the most important sources of precedent on
federal and constitutional questions for courts at all levels
of jurisdiction.
Supreme Court Original Jurisdiction – Cases involving
ambassadors and diplomats; cases in which a state is a
party (5% of all cases)
30. 3 Routes to
the Supreme
Court
30% of cases
come from State
Supreme Court
Decisions if they
raise a
“Constitutional
Question.”
31. THE SUPREME COURT IN ACTION
Most cases do not make it to the Supreme Court…
The Court has
Control over
access.
HOW?
Actual Number
of Cases Heard
32. RULES OF ACCESS
The 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.
33. GRANTING “CERT”
Writ of Certiorari – (sir-she-o-rare-e) A decision by the
Supreme Court to hear an appeal from a lower court.
Decided using the “rule of four” - Done specifically to
prevent a majority of the court from controlling all the
cases it agrees to hear
The court grants “cert” less than ~70ish times/year
from the more than 9,500 that are filed
Why wouldn’t the Court grant cert?
Issue may be too controversial
May wish to avoid split decision
If cert is denied, decision of the lower court stands
34. DECIDING CASES
Cases granted “cert” are scheduled for oral argument
One Hour (30 minutes per side)
Briefs are submitted by lawyers on each side in addition to
interest groups, and other concerned parties (amicus curiae)
After oral arguments, justices meet in conference to reach a
decision
Votes in conference are not final; judges can change their
votes in response to the majority opinion
Variety of opinions:
Opinion of the Court, Concurring Opinion,
Dissenting Opinion, Concurring Dissenting Opinion
Once an opinion is completed a final vote is taken
