1 the courts frank brooks. 2introduction to american politics courts’ function: adjudication to...
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22Introduction to American PoliticsIntroduction to American Politics
Courts’ Function: AdjudicationCourts’ Function: Adjudication
To “judge”To “judge” Whether and how the law applies to a particular Whether and how the law applies to a particular
situation and what to do about itsituation and what to do about it Judge whether/which law has been brokenJudge whether/which law has been broken Interpret the meaning of the lawInterpret the meaning of the law Determine fault (who? to what extent?)Determine fault (who? to what extent?) Assign punishment or resolve disputeAssign punishment or resolve dispute
Political impact of courtsPolitical impact of courts Immediate impact on individuals, small groupsImmediate impact on individuals, small groups Controversy intrinsic, especially at higher levelsControversy intrinsic, especially at higher levels ““rule of law” and “equality under the law”rule of law” and “equality under the law”
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Least Dangerous Branch?Least Dangerous Branch?How Powerful are the Courts?How Powerful are the Courts?Designed to be the weakest branchDesigned to be the weakest branch
Hamilton (Federalist #78): Hamilton (Federalist #78): "The judiciary . . . has no influence over either the sword or "The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE NOR WILL, but active resolution whatever. It may truly be said to have neither FORCE NOR WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm for the merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty."efficacious exercise even of this faculty."
Direct impact very limitedDirect impact very limited
Too much court power?Too much court power? ““Making law” rather than applying or interpretingMaking law” rather than applying or interpreting Decisions based on politics (partisanship, ideology, interests) rather than Decisions based on politics (partisanship, ideology, interests) rather than
LAWLAW
Accountability: elite body, anti-democraticAccountability: elite body, anti-democraticResponsesResponses
Sentencing guidelinesSentencing guidelines Philosophies of judicial decision-makingPhilosophies of judicial decision-making Appointment battlesAppointment battles
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The Courts as Policy-MakersThe Courts as Policy-Makers
Scope of impactScope of impact Immediate impact at lowest level when law is “applied”Immediate impact at lowest level when law is “applied” Broader impact in appeals courts when law is interpretedBroader impact in appeals courts when law is interpreted
Federal appeals courts have broad scope for Federal appeals courts have broad scope for interpretationinterpretation because of Constitutionbecause of Constitution
““inspired ambiguity”inspired ambiguity” Interpretation necessary, so playing politics possibleInterpretation necessary, so playing politics possible Judicial review as most obvious exampleJudicial review as most obvious example
Setting remedies as “making policy”Setting remedies as “making policy” Scope of punishment/damagesScope of punishment/damages Attempts to prevent/deter future problemsAttempts to prevent/deter future problems
LimitationsLimitations Facts of the caseFacts of the case Precedent and case lawPrecedent and case law Political reputationPolitical reputation
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The Supreme Court’s PowerThe Supreme Court’s Power
Grounded in reputation as authoritative Grounded in reputation as authoritative interpreters of the law and the Constitutioninterpreters of the law and the Constitution Expected to interpret, but law’s meaning and political Expected to interpret, but law’s meaning and political
context change over time (hence situational)context change over time (hence situational) The highest The highest authorityauthority for interpretation for interpretation Reputation, i.e. also relationalReputation, i.e. also relational
Key relations (audiences for decisions)Key relations (audiences for decisions) Congress and the PresidentCongress and the President Judges and legal communityJudges and legal community Public opinion, mediaPublic opinion, media
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Philosophies of JudicialPhilosophies of JudicialDecision-MakingDecision-Making
How should the law and the Constitution be interpreted?How should the law and the Constitution be interpreted?
Strict ConstructionStrict Construction Narrow – focus on the wording, don’t “read into” the textNarrow – focus on the wording, don’t “read into” the text Defer to the understanding of legislators who wrote the lawDefer to the understanding of legislators who wrote the law Can refer to “original intent”Can refer to “original intent”
Judicial ActivismJudicial Activism Times change, so meaning of law should tooTimes change, so meaning of law should too Elected officials can violate law and ConstitutionElected officials can violate law and Constitution Wording often vague – needs interpretive frameworkWording often vague – needs interpretive framework
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Increasing (Political) Role of CourtsIncreasing (Political) Role of Courts
Rules of access loosenedRules of access loosened
More laws to interpretMore laws to interpret
More lawyers to push disputes into courtMore lawyers to push disputes into court
Increasing complexity of society and economyIncreasing complexity of society and economy
Greater use of legal strategies by interest Greater use of legal strategies by interest groupsgroups
Congress and bureaucracy increasingly seen as Congress and bureaucracy increasingly seen as unresponsive (or responsive to “wrong” unresponsive (or responsive to “wrong” interests)interests)