The Judiciary
- Introduction
- Only in the United States do judges play so large a role in policy-making.
- Judicial review: right to rule on laws and executive acts on basis of constitutionality; chief judicial weapon in system of checks and balances
- In Great Britain, Parliament is supreme
- In other countries, judicial review means little
Exceptions: Australia, Canada, West Germany, India, and a few others
- Debate is over how the Constitution should be interpreted
- Strict constructionist (interpretivist) approach: judges are bound by the wording of the Constitution
- Activist (legislative) approach: judges should look to the underlying principles of the Constitution
- Not a matter of liberal versus conservative
- A judge can be both conservative and activist, or vice versa
- Today most activists tend to be liberal, most strict constructionists conservative
- Only in the United States do judges play so large a role in policy-making.
- The development of the federal courts
- Founders' view
- Most Founders probably expected judicial review but not its large role in policy making
- Traditional view: judges find and apply existing law
- Activist judges would later respond that judges make law
- Traditional view made it easy for Founders to justify judicial review
- Hamilton: courts least dangerous branch
- But federal judiciary evolved toward judicial activism
- National supremacy and slavery: 1789-1861
- McCulloch v.Maryland: federal law declared supreme over state law
- Interstate commerce clause is placed under the authority of federal law; conflicting state law void
- Dred Scott v.Sandford: Negroes were not and could not become free citizens of the United States; a direct cause of the Civil War
- Government and the economy: Civil War to 1936
- Dominant issue of the period: whether the economy could be regulated by state and federal governments
- Private property held to be protected by the Fourteenth Amendment
- States seek to protect local businesses and employees from the predatory activities of national monopolies; judicial activism
- The Supreme Court determines what is "reasonable" regulation
- The Court interprets the Fourteenth and Fifteenth Amendments narrowly as applied to blacks
- Government and political liberty: 1936 to the present
- Court establishes tradition of deferring to the legislature in economic cases
- Court shifts attention to personal liberties and becomes active in defining rights
- The revival of state sovereignty
- Supreme Court rules that states have right to resist some forms of federal action
- Hint at some real limits to the supremacy of the federal government
- Founders' view
- The structure of the federal courts
- Two kinds of federal courts
- Constitutional courts
- Created under Article III
- Judges serve during good behavior
- Salaries not reduced while in office
- Examples: District Courts (ninety-four), Courts of Appeals (twelve)
- Legislative courts
- Created by Congress for specialized purposes
- Judges have fixed terms
- No salary protection
- Constitutional courts
- Selecting judges
- Party background some effect on judicial behavior but ideology does not determine behavior
- Senatorial courtesy: judges for U.S. district courts must be approved by that state's senators
- The litmus test
- Presidential successes in selecting compatible judges
- Concern this may downplay professional qualifications
- Greatest effect on Supreme Court
- Two kinds of federal courts
- The jurisdiction of the federal courts
- Dual court system
- One state, one federal
- Federal cases listed in Article III and the Eleventh Amendment of the Constitution
- Federal question cases: involving U.S. matters
- Diversity cases: involving citizens of different states
- All others are left to state courts
- Some cases can be tried in either court
- Example: if both federal and state laws have been broken (dual sovereignty)
- Justified: each government has right to enact laws, and neither can block prosecution out of sympathy for the accused
- State cases sometimes can be appealed to Supreme Court
- Exclusive federal jurisdiction over federal criminal laws, appeals from federal regulatory agencies, bankruptcy, and controversies between two states
- Route to the Supreme Court
- Most federal cases begin in U.S. district courts, are straightforward, and do not lead to new public policy.
- The Supreme Court picks the cases it wants to hear on appeal
- Uses writ of certiorari ("cert")
- Requires agreement of four justices to hear case
- Usually deals with significant federal or constitutional question
- Conflicting decisions by circuit courts
- State court decisions involving the Constitution
- Only 3 to 4 percent of appeals are granted certiorari
- Others are left to lower courts; this results in a diversity of constitutional interpretation
- Dual court system
- Getting to court
- Deterrents
- The Court rejects 95 percent of applications for certiorari
- Costs of appeal are high
- But these can be lowered by
- In forma pauperis: plaintiff heard as pauper, with costs paid by the government
- Payment by interest groups who have something to gain (American Civil Liberties Union)
- Each party must pay its own way except for cases in which it is decided
- That losing defendant will pay (fee shifting)
- Section 1983 suits
- But these can be lowered by
- Standing: guidelines
- Must be controversy between adversaries
- Personal harm must be demonstrated
- Being taxpayer not entitlement for suit
- Sovereign immunity
- Class action suits
- Brought on behalf of all similarly situated
- Financial incentives to bring suit
- Need to notify all members of the class since 1974 to limit such suits
- Deterrents
- The Supreme Court in action
- Oral arguments by lawyers after briefs submitted
- Questions by justices cut down to thirty minutes
- Role of solicitor general
- Amicus curiae briefs
- Many sources of influence on justices, such as law journals
- Conference procedures
- Role of chief justice: speaking first, voting last
- Selection of opinion writer: concurring and dissenting opinions
- Strategic retirements from the U.S. Supreme Court
- There has been a sharp increase in the rate of retirements (contra deaths)
- Early duties were physically onerous, adverse to one's health
- More recently, retirements occur when justices and presidents share party identification
- Oral arguments by lawyers after briefs submitted
- The power of the federal courts
- The power to make policy
- By interpretation
- By extending reach of existing law
- By designing remedies
- Measures of power
- Number of laws declared unconstitutional (more than 120)
- Number of prior cases overturned; not following stare decisis
- Deference to the legislative branch (political questions)
- Kinds of remedies imposed; judges go beyond what justice requires
- Basis for sweeping orders from either the Constitution or the interpretation of federal laws
- Views of judicial activism
- Supporters
- Courts should correct injustices
- Courts are last resort
- Critics
- Judges lack expertise
- Courts not accountable; judges not elected
- Various reasons for activism
- Too many lawyers; but real cause adversary culture
- Easier to get standing in courts
- Supporters
- Legislation and courts
- Laws and the Constitution are filled with vague language
- Ambiguity gives courts opportunities to design remedies
- Courts can interpret language in different ways
- Federal government is increasingly on the defensive in court cases; laws induce litigation
- The attitudes of federal judges affect their decisions
- Laws and the Constitution are filled with vague language
- The power to make policy
- Checks on judicial power
- Judges are not immune to politics or public opinion
- Effects will vary from case to case
- Decisions can be ignored
- Examples: school prayer, segregated schools
- Usually if register is not highly visible
- Congress and the courts
- Confirmation and impeachment proceedings alter the composition of the courts
- Changing the number of judges
- Revising legislation declared unconstitutional
- Altering jurisdiction of the courts and restricting remedies
- Constitutional amendment
- Public opinion and the courts
- Defying public opinion, especially elite opinion, frontally is dangerous
- Opinion in realigning eras may energize court
- Public confidence in court since 1966 has varied
- Change caused by changes of personnel and what government is doing
- Reasons for increased activism
- Growth of government
- Activist ethos of judges
- Judges are not immune to politics or public opinion