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This time it’s judicial!
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US - judges play a large role in making public policy
Judicial review - checks & balances Expanding rights & entitlements during 60s
& 70s - controversial - Federalist #78 Britain - Parliament is supreme over courts Australia, Canada, Germany, India -
independent judiciary
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Strict constructionist - judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution - Scalia, Thomas
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Activist Approach - Loose Constructionist - judges should discover the general principles underlying the Constitution & its vague language amplifies those principles on the basis of some moral or economic philosophy & applies them to cases - Brown 1954, Roe 1973
50 yrs ago - judicial activists tended to be conservative & strict constructionist judges were liberal - today the opposite is true - Breyer, Ginsburg, Stevens
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Traditional - Restraint - judges find & apply existing law
Federalist #78 - “least dangerous branch to political rights”
Hamilton - decide when law is contrary to Constitution but was not supposed to augment but confine
Proactive - Activist - judges do not only find but make the law
Increased b/c more access to courts to hear case
Increased in proportion to the increase the whole gov’t experienced
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To answer questions regarding the nation-state relationship
Chief Justice John Marshall - nat’l law was supreme & judicial branch had right to judicial review but must work within precedent (stare decisis)
Marbury v. Madison 1801- judicial review McCulloch v. Maryland 1819 - nat’l gov’t
supreme Tension between Jeffersonian Republicans
(states’ rights) v. Federalists Question of slavery - Taney (state’s rights
appt by Jefferson) & Dred Scott 1857
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Question about property arises - Court dedicated to protecting private property
Ex: struck down federal income tax (1895), limited ICC (Interstate Commerce Commission) power to railroad rates
Ex: allowed for many state regulations (state mine safety laws)
Old SC Chambers in US Capitol
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Protect black claims to citizenship from hostile state action, protect private property & corporations from unreasonable state actions
Court constantly dealing w/ gov’t regulations on business
1880s-1890s - judicial activism born as courts are arbiter of what kind of regulation was permissible
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Supportive of private property but unsure how to draw line between reasonableness & unreasonable regulation
14 & 15th Amendments - construed narrowly to give blacks limited benefits - ex: segregation in schools, buses, etc
Plessy v. Ferguson
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Personal liberty v. social equity & potential conflicts between the 2
Switch from restricting state or federal power to regulate to restricting gov’t laws that violated personal political liberties
FDR - “Court Packing” - not passed Still questioning federal power over
commerce - 1990 - Free School Zones Act
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Earl Warren - start of an activist court Former Gov. of California Was nominated by Eisenhower as a conservative Brown v. Board
14th Amendment Gideon v. Wainwright
6th Amendment Miranda v. Arizona
6th Amendment Loving v. Virginia
Overturned 1924 Racial Integrity Act Permitted interracial marriages
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Constitutional courts - serve during “good behavior” & no salary reduction - district courts (94) & courts of appeal (12)
Legislative Court - set up by Congress w/ judges w/ fixed terms subject to removal & salary reduction
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Party background has some influence - Democratic judges - more liberal than Republican ones
But ideology does NOT determine behavior always (Ike & Warren, Bush ‘41 & Souter)
Reagan nominates ultra-conservative Bork to S.C.—Ruled against abortion in Rosemary v. Baby
Warren Bork
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Senatorial Courtesy - normally President nominates only persons recommended by the senior senator from the state where the district is located
Litmus Test - test for ideological purity for judges that influences appt.
Trends - 140 nominees to SC - 27 rejected by Senate Most recently: Harriet Miers
Filibustering judicial appts a new practice?
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2 types of federal jurisdiction Federal question cases - under
Constitution, US laws, & treaties Diversity cases - cases involving citizens of
different states Dual sovereignty doctrine - state & federal
authorities can prosecute the same person for the same conduct
Did not want local authorities to block prosecution of an accused person who has their sympathy (ex: black lynchings in South or to secure both have jurisdiction)
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How they hear a case Writ of Certiorari - lower court petitions
higher court for review in which a federal or constitutional question has been raised (rule of 4)
2 or more federal circuit courts of appeal have decided the same issue in different ways
Highest court in state held a federal or state law in violation of the Constitution or has upheld a state law against the claim that it is in violation of the Constitution
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In forma pauperis - hear petition for free v. $300 fee
Brief presented by lawyer for normally no longer than 1/2 hour (Because the justices take vitamins at 2, dinner at 4, and bedtime by 5…cuz they’re old…get it???
Amicus Curiae brief - allow justices to know where interest groups stand on a case but claim not really influenced by this
World of lawyers & law profs can help shape the conclusions
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Per curiam opinion - brief & unsigned Opinion - if SC chief justice in majority, he/she
writes this Concurring opinion - who agree but for
different reasons Dissenting - stare decisis, remedy, political
question - being to another branch of gov’t to decide
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Fee shifting - plaintiff to collect its loses from the defendant if he/she loses
Standing - right to have case brought & heard - it is easier to acquire standing
Sovereign immunity - can’t sue federal gov’t w/o its consent
Class action suit - others benefit from one ruling (Brown)
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No police force or army Senate confirmation of judicial appts by 51%
vote Impeach judges Congress determines # of judges (can
increase) Amend the Constitution (16th Amendment -
income tax) Decide what the entire jurisdiction of the
lower & appellate jurisdiction of the SC shall be
Public opinion - sensitive to elite opinions
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