WHAT DO YOU ALREADY KNOW ABOUT THE JUDICIARY?

• Article?• Appointed?….term?• Types of federal courts? (structure)• Supreme Court

# of justicesCurrent Chief Justicelast Associate Justice confirmed1st African-American1st Woman

1st Latino (Latina)Current African-AmericanCurrent Women

Aim: How has the federal judiciary evolved?

DO NOW:

What do you already know about “judicial review”?

• What is Judicial Review? - the right of the federal courts to declare laws of Congress and acts of the executive branch void and unenforceable if they are judged to be in conflict with the Constitution

• What court case established the power of judicial review for the Supreme Court?

• What is the difference between a strict-constructionist approach and an activist approach to interpreting the Constitution?

• Who is likely to be the “liberal” or “conservative” today?

DEVELOPMENT OF THE COURTS• FOUNDERS probably expected judicial review

but not such a large role in policy making• FOUNDERS believed that the courts

“interpret the law”, not make policy• Courts - “least dangerous” branch –

according to Alexander Hamilton, in Federalist 78

• Judicial review was designed not to enlarge the power of the courts but to confine that of the legislature

• **things have changed since Hamilton’s time

FEDERAL COURTS (1787-1865) • Issues that dominated the Court• Nation building, legitimacy of the federal

government, and slavery• Court asserts supremacy of the federal

government over the states• National law – dominant law• Supreme Court had power to decide what the

Constitution meant• Landmark cases:

-Marbury v. Madison (1803)-McCulloch v. Maryland (1819)-Dred Scott decision (1857)

FEDERAL COURTS (1865-1937)• Issues that dominated the Courts• The Government and the Economy (proper

relationship)• Restrictions on powers of governments• When would economy be restricted (regulated) by

states and when by the nation?• Resisted regulatory measures?• Actually, tried to distinguish between reasonable and

unreasonable regulation• Evidence shows that major concern was the

protection of private property• IN ADDITION, the 14th and 15th Amendments

construed so narrowly gave limited benefits to blacks

FEDERAL COURTS (1938-present)• Big issues before the Court• PERSONAL LIBERTY AND SOCIAL EQUALILTY• Enlarged scope of personal freedom and

narrowed that of economic freedom• Decidedly PRO-REGULATION• Broad grants of discretionary authority to

bureaucracy• Create welfare state• FDR attempts Court packing in 1936• Chief Justice Earl Warren – 1953 – begins most

activist period in history of the Court (protect rights and liberties of citizens)

Aim: How does the federal judiciary influence U.S. government and politics?

DO NOW:1. Why did Alexander Hamilton

consider the federal judiciary to be the least dangerous branch?

2. What is the significance of Marbury v. Madison?

3. What types of issues have dominated the Court since 1938?

STRUCTURE OF FEDERAL COURTS

SELECTION OF JUDGES (Constitutional Courts)• Nominated by …• Confirmed by …• Term?• Considerations (party, ideology, qualifications,

competency, “diversity”) • “litmus test” – seek out judges with record similar

to ideology looking for• Senatorial courtesy• BOTTOM LINE: doesn’t always work out the way a

President would think (examples – Nixon and Warren Burger and Harry Blackmun; Reagan and Sandra Day O’Connor)

U.S. SUPREME COURT: DO YOU KNOW WHOSE WHO?

Current Supreme CourtAntonin Scalia, DC

1986–   — N.J. 1936 — Roman Catholic

Anthony M. Kennedy, Calif.

1988–   — Calif. 1936 — Roman Catholic

Clarence Thomas, DC

1991–   — Ga. 1948 — Roman Catholic

Ruth Bader Ginsburg, DC

1993–   — N.Y. 1933 — Jewish

Stephen G. Breyer, Mass.

1994–   — Calif. 1938 — Jewish

John G. Roberts, DC

  2005– — N.Y. 1955 — Roman Catholic

Samuel A. Alito, Jr., N.J.

2006–   — N.J. 1950 — Roman Catholic

Sonia Sotomayor N.Y.

2009–   — N.Y. 1954 — Roman Catholic

Elena Kagan N.Y.

2010–   — N.Y. 1960 — Jewish

What kinds of matters do Federal Courts deal with?

• Criminal/civil cases• Federal questions• Diversity cases

What falls within the original jurisdiction of the Supreme Court?

A CONTROVERSY INVOLVING:• Two or more states• The U.S. and a state• Foreign ambassadors/diplomats• State and a citizen of a different

state

Aim: How does the federal judiciary influence U.S. government and politics?So,…1. Describe the structure of the federal

judiciary. (3 types of courts)2. How does one become a federal judge?3. What factors would a President

consider when making appointments to the federal bench?

4. What types of cases are within the “original jurisdiction” of the Supreme Court?

OTHER TERMS• Writ of Certiorari• Gideon v. Wainwright• In forma pauperis• Fee-shifting• Standing• Sovereign immunity• Class-action suits• brief

OTHER TERMS• Amicus curiae brief• Types of Opinions• Opinion of the Court• Majority opinion• Concurring opinion• Dissenting opinion• Stare decisis• remedy

Aim: How does the federal judiciary influence U.S. government and politics?

DO NOW:1. Why did Alexander Hamilton consider

the federal judiciary to be the least dangerous branch of government?

2. What is the difference between judicial activism and judicial restraint?

3. Which philosophy follows “strict constructionism”? Which follows a broad loose interpretation of the constitution?

4. Which is associated with “original intent”? Which is associated with “contemporary meaning”?

JUDICIAL ACTIVISM• Correct injustices• Institution of last resort

for those without vote or influence

• Congress and state legislatures tolerated segregation of schools

• Court declared segregation unconstitutional

• “Contemporary meaning”

JUDICIAL RESTRAINT• Judges – no specific

expertise (schools, prisons, environment)

• Judges not elected (don’t need an unelected legislature)

• Immune to popular control

• Mandates cost ($$$)• “original intent”

• NO INDEPENDENT ENFORCEMENT• CHECKS BY CONGRESS• Can gradually alter composition (appointments,

impeachment• Alter number of judges• Undo S.C. decision by amending Constitution• Congress can repass law that Court declared

unconstitutional• Change jurisdiction of lower courts and appellate

jurisdiction of Supreme Court

MORE CHECKS ON JUDICIAL POWER

CHECK BY PUBLIC OPINION• Court is aware, especially of elite opinion• Ignoring public opinion may destroy legitimacy of the Court

(Dred Scott decision)• Influences the remedies the Court offers (backing off on

busing)• Public opinion not only restrains but could energize the Court• Activist periods tend to coincide with periods of political

change• Change in Court today result of Presidential appointments

altering composition

JUDICIARY SUMMARY1. What is the significance of Marbury v.

Madison?2. Describe the structure of the federal

judiciary. (3 parts)3. What types of cases fall within the

original jurisdiction of the Supreme Court?

4. What is the difference between judicial restraint and judicial activism?

5. How can the Court be checked (Congress, President, Public opinion)?

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