THE SUPREME COURT OF THE UNITED

STATESGuided Reading Activity Answers

JUDICIAL RESTRAINT

Judicial restraint is the practice of interpreting the limits of power under the Constitution strictly. Judges who believe in judicial restraint would say that you should interpret the constitution exactly as it is written and pay careful attention to the precedents set by previous justices. They oppose the idea of “interpreting” the Constitution to reflect the times in which we live.

JUDICIAL ACTIVISMJudicial activism, on the other hand, believe that the role of justices is to play an active and creative role in shaping public policy. It may be wise to look at precedent, but it is also important to consider that times are always changing and the Founding Fathers could never have predicted all the changes that have occurred in 230 odd years.

CHIEF JUSTICE JOHN ROBERTSChief Justice John Roberts is one of the leading practitioners of judicial restraint on the Supreme Court today. He points out that the Judicial Branch is the only branch of the government which is not elected by the people; therefore, it should play the least active role in creating laws.

Critics would say, though, that by not ever considering changes to the system as it is constructed, justices favor those who have exploited the system the most.

CHARLES EVANS HUGHES

Charles Evans Hughes, like many Supreme Court justices who follow the practice of judicial activism, would say, “The Constitution means what we say it means!” His idea is that each generation of Americans must reinterpret the document so that justice is preserved. Thus, the nature of “We the People…” changes over time, and it is the job of the Supreme Court to guarantee that all of the “People” are represented – and all of the people are provided equal protection under the law – when decisions are handed down.

EQUAL JUSTICE UNDER LAW

NINE JUSTICES ON THE SUPREME COURTBack Row, Left to Right:

Sonya Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan

Front Row, Left to Right:

Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

At one point in history, there were only six justices on the court – it expanded to nine before the end of the 19th Century. In the 1930s, Franklin Roosevelt attempted to expand the Court again – but with no success… He was viewed as usurping too much power for the Presidency, for reasons we will explore.

THE SUPREME COURT: THE FINAL AUTHORITY The Supreme Court is the highest federal court in the land and decisions of the Supreme Court cannot be appealed. It is the court of last resort and the final authority on issues of Constitutionality, whether it be regarding executive orders of the President, laws passed by Congress, or even treaties. If the question has to do with what the Constitution means, this court has the answer.

THE POWER OF JUDICIAL REVIEW All courts have the power of judicial review, but no court has quite as much power as the Supreme Court. What they state is unconstitutional is unquestionably unconstitutional.

The struggle for gay marriage rights and the right to serve openly in the military are a couple of good examples of this. The “Don’t Ask, Don’t Tell” rule for military service was recently cast aside, as was the Defense of Marriage Act.

MARBURY V. MADISON (1803) It was this Supreme Court decision in which Supreme Court justice John Marshall first asserted the right of judicial review.

The decision actually resolved a major problem in the federal system. States had hypothesized that they may be able to simply nullify laws they considered unconstitutional – a system that would have led to confusion and anarchy. Now, the Supreme Court set a new precedent, and expanded its role.

FDR’S COURT PACKING PLAN After a series of his laws were rule unconstitutional, Franklin Delano Roosevelt attempted to increase the size of the Supreme Court.

The move was not completely unprecedented. The Supreme Court had started our at 6 justices; later it expanded to nine in the 1860s.

FDR’S SUPREME COURT?

After a series of his New Deal programs were ruled unconstitutional, FDR suggested that the size of the Supreme Court should be increased from 9 justices to 15 justices. Of course, he would get to select the six new justices, and he intended to nominate men that would support his New Deal government programs.

With a new Supreme Court, plans like the National Recovery Administration and the Agricultural Adjustment Act might be ruled constitutional.

AMERICAN OUTRAGE AT THE COURT PACKING PLAN Americans loved FDR, who had guided the nation through some very difficult times; however, they loved the separation of powers and the system of checks and balances in the Supreme Court even more.

Outraged at the mere suggestion of his plan, American voters made it clear to Congress and the President that the plan must be removed. And they got their way.

ORIGINAL JURISDICTION OF THE SUPREME COURT

The Supreme Court has original jurisdiction in a small minority of cases, including:

1. Cases where a state or a number of states are a party to the suit.

2. cases affecting ambassadors, public ministers, and consuls.

OVER 8000 CASES APPEALED, BUT ONLY A FEW HUNDRED ARE ACCEPTED EACH YEAR… The Supreme Court doesn’t have time to listen to every case which is appealed to them; however, they try to select the most controversial and difficult cases and listen to as many as possible each year. Their workload is heavy; yet, the vast majority of cases are simply sent back to the federal courts from which they were appealed.

THE WRIT OF CERTIORARI

The writ of certiorari is a written request from the court to send up the records from the lower court for their review. Anyone can ask for a case to be reviewed; however, the Court usually only grants “cert” to a few cases – most of which raise some important aspect of Constitutional law or some difficulty in the interpretation of a statute.

ORAL ARGUMENTS

Oral arguments are the actual presentations given by lawyers to the Supreme Court. In general, these arguments are limited to around thirty minutes, and they must address every aspect of the constitutionality which has brought the case forward. The lawyers must anticipate what questions the Justices of the Supreme Court might ask, and answer their objections in advance if possible.

THE PRESENTATIONS – AND INTERRUPTIONS! Already limited to just thirty minutes to argue their case, the lawyers before the Supreme Court must also contend with another problem: the nine justices of the Supreme Court spend the entire time badgering them with questions – and sometimes interrupt repeatedly in order to present their own opinions about he case. This makes arguments very, very difficult!

BRIEFS BEFORE THE COURT

Because the argumentation is so compressed, both sides will send the court briefs – summaries which describe their perspective on the law, the Constitutional issues which are at stake, and their own interpretation of what the Court should do. The Court reads the briefs; however, they are not necessarily influenced by them.

AMICUS CURIAE BRIEFS

Outside parties who feel like the Supreme Court’s ruling in a given case may also submit amicus curiae briefs. These are written appeals which articulate their own perspective on the constitutional issue at stake. Again, the Court can read over these documents critically, without being forced to base their decisions on the merits of the arguments presented.

THE SUPREME COURT IN CONFERENCE Recently, the discussions of the Supreme Court have gotten pretty heated, it would seem. On the current court, there are four very conservative justices and four very liberal ones, with moderate justice Anthony Kennedy in the middle. There are plenty of 5-4 rulings theses days.

MAJORITY DECISION The majority of the justices speak with a unified voice in presenting the majority decision. Usually, one justice will write the opinion for the entire group, explaining why they voted in the way that they chose to. In the recent Affordable Care Act (Obamacare) case, Chief Justice John Roberts – no fan of the President – voted to uphold the law. He explained why in his majority decision – an opinion that he wrote. Basically, he stated that Obamacare was constitutional not because it promoted the general welfare by helping Americans, but rather, because Congress had the power to tax…

CONCURRING DECISIONS – AGREEING, SORT OF? Sometimes, a justice who supports the majority does so for a slightly different reason. In the Obamacare decision, five justices voted to uphold the law, but not for the exact same reasons. Hence, concurring decisions were presented.

Some justices believed the ACA was fair because of the Congress’ power to tax; others believed that the ACA was for the general welfare.

DISSENTING OPINION Dissenting opinions are from the losing side. The losing side in debate writes out their perspective because every case can be reviewed by future Supreme Courts. As these courts consider precedent, they also consider dissenters – especially those in close cases – so that they can be better informed in arriving at their own conclusions.

When future courts read Antonin Scalia’s recent dissents, they will probably get a good laugh. Scalia is well know for being a bit of a poor loser, and criticizing members of the Supreme Court who disagree with him. (Most of them, as it turns out, recently.)