AP American Government
AP American Government
Federal Courts
❖ Most of the Founders probably expected judicial review to be an important judicial power, but it is unlikely that they thought the federal courts would play a large role in policy-making. Why?
o Supremacy clause (The Constitution is the supreme law of the land)
o Federalist Paper 78(Alexander Hamilton)
▪ “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”
o The original view of the Founders was strict construction
o Judges would be bound by the wording of the Constitution and legal precedent
o An activist approach emerged quickly as judges looked at the underlying principles of the Constitution
o The federal courts have evolved toward judicial activism, shaped by political, economic & ideological forces of 3 historical eras
o National supremacy & slavery (1789-1861)
▪ Marbury v. Madison (1803) power of judicial review
▪ McCulloch v. Maryland (1819) federal law supreme over state law
▪ Dred Scott v. Sandford (1857)
o The Supreme Court became a major player in setting the stage for the Civil War
o Ruled that Blacks were not citizens of the United States & federal law prohibiting slavery in northern territories was unconstitutional
Government & the economy (1865-1936)
o Dominant issue during this period was when the economy would be regulated by the states and when by the national government
o Court decisions protected “private property”
o Upheld injunctions to prevent labor strikes
o Struck down federal income tax
o Limited the reach of antitrust laws
o Restricted the power of the Interstate Commerce Commission
o Refused to eliminate child labor
o Prevented states from setting maximum work hours
o Court also authorized various kinds of regulation
o Required railroad to improve their safety
o Approved mine safety laws
o Regulated fire insurance rates
o Problem: Court could not distinguish between interstate and intrastate
o Government & political liberty (1936-present)
o Court deferred to the legislature in regulating the economy
o Shifted its attention to defining rights (also included are some other controversial cases)
o Warren Court, 1953-1969:
▪ Brown v. Board of Education Topeka (equal protection)
▪ Mapp v. Ohio (search & seizure)
▪ Engel v. Vitale (removed state-sponsored prayer in public school)
▪ Gideon v. Wainwright (right to a lawyer)
▪ Griswold v. Connecticut (right to privacy)
▪ Miranda v. Arizona (right to remain silent)
o Burger Court 1969-1986:
o Lemon v. Kurtzman (lemon test on religion)
o Furman v. Georgia (suspended death penalty nationwide due to unfair application of states)
o Roe v. Wade (extension of privacy)
o U.S. v. Nixon (executive privilege is not absolute)
o Era of State Sovereignty
o Rehnquist Court 1972-2005 (1986-2005 as Chief Justice)
o Court takes fewer rights cases
o Court began to rule that the states have the right to resist some federal action (federalism cases)
❖ How are federal judges selected?
o Constitution requires nomination by the president & confirmation by the Senate
▪ Presidents almost always nominate some one from their own political party, or those who share their political ideology
▪ Party does have some effect on how judges behave
o Rulings are also shaped by facts of the case, precedent & lawyer’s arguments
o Confirmations are often contentious
▪ Bork
o Opposed by 300+ groups due to strict constructionist approach and contempt for precedent; many believed he would work to overturn past decisions he didn’t agree with, removing women’s & minority advances
o Not confirmed
o Thomas
o Nominated to replace Thurgood Marshall
o Charges of sexual harassment
o Closest confirmation in history
o Senate delays on confirmations leave many seats open on appellate courts
o Tradition of senatorial courtesy
▪ Senators from the president’s party review an appointee for a district court in their state; can “blue-slip” – reject – a nominee
▪ Criticized because it gives senators virtual power in nominating judges
▪ No tradition of senatorial courtesy for Supreme Court confirmations
o Litmus test
▪ A test of ideological purity used by recent presidents in nominating and by senators in confirming judges
▪ Nominees cannot be asked how they would rule in a specific case, they can be asked about judicial philosophy
▪ Most often used in Supreme Court confirmations, but have recently been used at lower federal level
❖ What is the jurisdiction of the federal courts?
o U.S. has a dual court system
▪ State Courts
▪ Federal courts
o Original jurisdiction of Supreme Court
▪ Cases involving ambassadors & other public ministers & counsels, and in cases between states (ex: NY v. NJ)
▪ All other cases come up on appeal by writ of certiorari (these are the largest part of the Supreme Court’s caseload)
▪ Federal courts hear cases involving the Constitution, federal law and treaties (federal question cases)
▪ Federal courts also hear cases involving different states and citizens of different states (diversity cases)
▪ Supreme Court tends to take cases that pose a significant federal or constitutional question, involve conflicting decisions by lower courts, or contain a constitutional or federal law interpretation by a state supreme court.
❖ Is the Supreme Court undemocratic?
o Rejects all but a few applications for certiorari
o Costs of appeals are high
▪ Costs sometimes can be lowered or covered in full
o Interest groups
o Often take a case to court on behalf of a plaintiff (ex: ACLU, NAACP)
o In forma pauperis
o Indigents’ court costs paid for by the government
o Fee shifting
o Enables plaintiffs to collect their costs from a defendant if the defendant loses
o Getting to Court requires standing
o Case must have a controversy between adversaries
o Litigants must demonstrate personal harm
o Class-action suits
o An identifiable group of people has standing
o Most famous class action, Brown v. Board of Education, Topeka, Kansas
o Since 1974 Supreme Court will not hear class-action suits unless every ascertainable member of the group is notified individually – which is prohibitively expensive
❖ What happens when a case gets to the Supreme Court?
o Cases get to court on original jurisdiction or writ of cert
o Lawyers for each side submit briefs
o Sets forth the facts of the case
o Summarizes the lower-court decision (if it is an appeals case)
o Provides arguments for the side represented
o Discusses any precedents on the issue
o Oral arguments (each side as 30 minutes, but justices interrupt with questions)
|Half of cases the Court hears, the government is either the plaintiff or the defendant |
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|Solicitor General, 3rd ranking officer in the Justice Department, decides which cases the government will appeal from the lower |
|courts |
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|Personally approves every case presented to the Supreme Court |
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|Argues cases (or some one from Solicitor General’s office does) |
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o Amicus Curiae or “friend of the Court” briefs
▪ Written briefs (and sometimes oral arguments) from interested parties not involved in the suit
o Individual justices develop their opinions and decisions
▪ Aided by law clerks (usually recent graduates of top law schools)
▪ Drafted opinions circulated among the justices
o Friday Conference
▪ Exchange of ideas ad arguments
▪ Vote
▪ Chief Justice writes the decision if he is in the majority
▪ Chief Justice assigns another justice to write decision if he is in the minority
o Types of opinions
▪ Unanimous
▪ Majority
▪ Concurring
o Agrees with the majority but for a different reason
o Minority or Dissenting
o Disagrees with the majority
o Has no value as precedent but may form the basis for later appeals or reversals of precedent
o Per curiam decision
o Decision is unsigned by the Court
o Generally Court’s opinion is very brief
❖ How powerful is the Supreme Court?
o Court has power to make public policy in three ways
▪ Interpretation of the Constitution or law
▪ Extending the reach of existing law
▪ Designing remedies
o Power is measured by
▪ Number of laws declared unconstitutional
▪ Over 130 laws have been declared unconstitutional
▪ Over 260 cases have been overturned
▪ Imposing remedies
o To let a prior decision stand is called stare decisis
|Judicial activism versus judicial restraint is a major issue when considering the federal courts. |
o Judicial activism
▪ Philosophy by which judges make bold policy decisions
▪ Supporters of judicial activism
▪ Court should correct injustices when other branches of government or states fail to act
▪ Court should by active when change creates new circumstances no foreseen by the Founders
▪ Court are the last resort for those without power or influence
o Judicial restraint
▪ Court should refrain from encroaching on the other branches of government
▪ Court should apply not “make law”
▪ Court should allow lower court decisions to stand, not overturn
o Judicial activism increased during the 20th century
▪ Government tended to do more
▪ Court interpreted greater number of laws
▪ State were doing it badly with regard to the rights of the accused and civil rights
▪ Most activist judges are considered liberal
o Conservative activism
▪ Rehnquist Court
▪ Chief Justice Rehnquist moved Court to the right
▪ Congress encroached on states (federalism cases)
❖ What are the checks on judicial power?
o Confirmation proceedings gradually alter the composition of the Court
o Impeachment proceedings, though rare, can also change the composition of the Court
o Congress can change the number of judges, giving the president more or fewer appointment opportunities
o Revising legislation can undo Supreme Court decisions
o Amending the Constitution can alter the jurisdiction o the Court
o Court relies on executive branch to implement decisions
o Defying public opinion may be dangerous for the legitimacy of the Court
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