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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