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Please be aware that this is a student-generated wiki designed for review for my students' AP exams. Come in, look around, and enjoy yourself...just be aware of the nature of this wiki. Even though most everything is correct, I advise caution before citing this as an authoritative source.

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  • The reason for congressional concern is that federal courts, even at the lowest level, make important decisions that affect all of us.
  • Only in the United States do judges play so large a role in making public policy (Wilson).
  • In the Great Britain, the decisions of the Parliament remains superior to that of any courts, whereas the Supreme Court in the US have been declaring the acts of the executive and legislative branch unconstitutional (Wilson).
  • One major weakness of the Judicial Branch is that it does not have the ability to enforce any of its decisions. It merely states the decision and can only expect that it will be enforced
  • Federal courts have evolved into a institution with a very significant impact on public policy.
  • The Judicial System has become a platform for policy to pass without going through the tedious Legislative process.
  • As the power of the federal government has grown, the power of federal courts has increased (Wilson).
  • The Founders believed that the judicial branch would be less important than the legislative and executive branches. They outlined the judicial branch in Article III of the Constitution, after the other two branches. They did not see the role the Judicial Branch would play in policy-making, which made it easier for them to justify judicial review while ratifying the Constitution.
  • Founders has an original view of strict construction where judges would be bound by the wording of the Constitution and precedent (Benson and Waples).
  • A very small amount of cases are heard before the Supreme Court (roughly one hundred a year, according to Benson and Waples).
  • A national court system did not exist during the Articles of Confederation.
  • In 1787 the constitution created the Judicial Branch.
  • The Legislative and Executive branches are elected by the people, and members of the Judicial branch are appointed by the President and confirmed by the Senate.

Characteristics of Supreme Court nominees that are relevant to the appointment process:
  • Past experience:a nominee's past judicial rulings heavily influence the likelyhood of them being approved by Congress. Congress attempts to maintain a ideologically balanced Supreme Court (no dominance of either orthodox or liberal).
  • Ideology: The ideology of the moniee tends to be cohesive with that of the president. This is because it is the president that nominates candidates for Congressional approval
  • Age
  • Gender: Most Supreme Court judges tend to be more male, but female justices are becoming common.
  • Partisan identification:
  • Ethnicity: Supreme Court nominees historically tend to be Caucasian, but the Supreme Court is becoming more racially diverse.
  • Reputation

- There have been over 100 justices since the start of the Supreme Court.
-The Supreme Court Cases Marbury v. Madison (1803) and McCulloch v. Maryland (1819) were extremely crucial in establishing the power of the Supreme Court to declare an act of Congress unconstitutional, sometimes referred to as "judicial review".
  • This concept is the right of the federal courts to declare laws of Congress and acts of the executive branch/president void and unconstitutional (Wilson).
  • McCulloch v. Maryland also made it clear that federal law is superior to state law.
    • This concept, called federal supremacy, made an indelible lasting impression. We see now that even though some states may have laws allowing for certain actions, like California's allowance of the medical marijuana practice and distribution, the fed can still perform surprise raids on distributors and arrest those participating as this is in violation of federal law, which overrides state law.
Not all countries are the same: for example, countries like France have installed special councils, rather than courts, to settle disputes over the legality of laws. This case also made it clear that the federal government could pass any laws necessary and proper to the attainment of constitutional ends (Wilson and Dilulio 441).
  • Also under Marbury v. Madison and McCulloch v. Maryland, the Supreme Court declared that the power granted by the Constitution to the federal government comes from the people, so the power granted by the Constitution to the federal government should be "generously construed", leading way to the "necessary and proper" clause (Wilson and Dilulio).
  • "Necessary and Proper Clause": any federal laws that are "necessary and proper" to the attainment of constitutional ends are permissible (Wilson and Dilulio).
  • Gibbons v. Ogden: the power to regulate commerce was given to the Congress by the Commerce Clause in the constitution(Wilson)
  • Gideon v. Wainwright: The Supreme Court ruled that under the 6th amendment of the Constitution the state courts are required to provide lawyers in criminal cases to defendants who can't afford one due to the incorporation clause of the 14th amendment (Wilson).
-The Supreme Court can interpret law in whatever fashion it wishes but it depends upon the president and the states to enforce its decision.
  • The desegregation of schools became a long and drawn out process because of loopholes and lack of enforcement by the federal government
    • Although mandated by landmark decisions like Brown v. Board, the desegregation of schools was made slower by groups from the South who didn't allow their schools to be mixed, and used threats and intimidation to keep things the way they were longer, while also taking advantage of the lack of federal enforcement.
  • Georgia v. Cherokee Nation: When Andrew Jackson tried to move the Cherokee Indians out of their land in Florida, the Supreme Court declared this was unconstitutional. However, since the Supreme Court does not have the power to enforce law, Jackson, as the commander-in-chief, told the Army to relocate the Cherokee regardless.
  • The War Powers Act is an example as Presidents have not followed some parts of it assuming that it will be unconstitutional. What this shows is that the executive branch is the branch that has the power to enforce laws.

Two Competing Views of Judicial Review

  1. Strict constructionist
    • A famous strict constructionist (judge) is Judge Rehnquist while John Marshall is a popular example of van activist judge in American politics.
    • Judges should strictly only judge and nothing else. They make a decision only based on the language of the laws and the US Constitution, which some argue makes for slow progression in change .
    • Supporters of this approach state that activism takes away power from elected officials and the concept of Democracy, because appointed judges can override regulation of officials elected by the people.
    • Strict-Constructionist Approach: Similar to the strict-constructionist view in other branches of government, this approach claims that the judges should only apply rules that are stated or clearly implied by the Constitution. Supporters of strict-constructionism argue judges cannot be "above the law", they lack the expertise to manage and/or design complex institutions, and that they are not accountable to the people (Waples). This strict adherence to the laid laws of the Constitution provides the Judicial branch an additional layer of insulation from the passions of the people.
  2. Activist
    • Judges make decisions based on the general principles or intentions from laws and the Constitution and then apply them to modern cases. This is also known as the idea of following the "spirit of the law" as opposed to the "letter of the law," which would be associated with strict constructionism.
    • Cases that exemplify judicial activism are The Dred Scott decision, Dred Scott v. Sandford, (which set the stage for the Civil War, since they ruled that blacks were not citizens of the U.S.) and Marbury vs. Madison (which gave the Supreme Court the power to declare a congressional act unconstitutional).
    • Supporters of activism state that the SCOTUS should do what it is supposed to do by interpreting the law and applying modern day approaches.
    • Activist Approach: This approach gives judges the ability to use vague language in the Constitution to discover general principles to be applied to cases. Supporters of judicial activism assert judges should "correct injustices" (which other institutions have chosen to ignore/ perpetrate), adapt to change, and act as a viable last resort for those without power and/or influence (Waples). Activist judges sometimes allow personal and political considerations influence their court rulings.
    • One criticism of activist judges is that it is sometimes difficult or impossible to discern the underlying principles or intentions of the Constitution or previous laws and court decisions.
    • One other criticism of activist judges is that they could interpret things too broadly in response to the changing desires of the people and greater support for progressive reform. Judges should have limits on their activism much as they should not be too linear in their adherence to constructionist schools of thought.
    • The Warren era is a prominent example of an Activist Court
    • Another criticism of activist judges is that leaving room for judges to interpret the underlying principles of the Constitution creates too much possibility for abuse of power, since judges could interpret those underlying principles to be almost anything that they wanted, not having to pay strict attention to exactly what the Constitution says, word for word.

The difference between activist and strict-constructionist judges is not necessarily the same as the difference between liberals and conservatives.
  • Judges can be political liberals and still believe that they are bound by the language if the constitution.
  • Or judges could be conservatives and still believe that they have a duty to use their best judgment in deciding what is good public policy.
  • There also been more anger towards judicial activism because many people believe that judges have no knowledge in any other field.
  • The difference between activist and strict-constructionist judges is not the same as the difference between liberals and conservatives. Seventy years ago judicial activists tended to be conservatives and strict-constructionist judges tended to be liberals, while today it tends to be the opposite.

The Courts
  • They are three levels of federal courts
    • Federal District Courts
      • These lower courts hear cases for the first time
      • There are ninety-four Federal District Courts, with at least one district court in each state (Wilson).
      • They decide both criminal and civil cases in original jurisdiction
        • Ex: Civil Suits between citizens of different states where the amount exceeds $75,000 (Wilson and Dilulio).
        • Ex: Bankruptcy
      • More examples of District Court include:
        • United States Court of Federal Claims
        • United States Tax Court
      • May use juries to decide the case
      • It is established by Congress not the Constitution and judges serve for 10 years.
    • Federal Circuit Courts of Appeal
      • These courts hear reviews or appeals from the lower courts
      • These include appellate courts. Initially, the "supreme court" of district courts are their appellate courts (assuming that these cases are resolved in appellate courts).
      • There are 13 Circuit Courts of Appeals including the DC and Federal circuits.
      • In cases that make it to the Circuit Courts of Appeals, there must be a claim regarding the violation of a constitutional right
      • have no trials
      • It is the court of last resort of the Supreme Court
      • There are 179 judges in the Courts of Appeals, which are nominated by the president and confirmed by the Senate
      • Most judges rise from the there
      • Since the Supreme court hears very few cases filed annually, the Court of Appeals will make most final decisions. They are considered very powerful, because they represent a large region, make most decisions, and therefore contribute mainly to U.S. laws.
    • Supreme Court
      • This was the only court officially created by the Constitution
      • This court hears appeals from the Court of Appeals; the cases the SC hears generally deal with the Constitution
        • Of more than 10,000 cases filed by the federal courts of appeal only around 100 are heard by the Supreme Court
      • Original jurisdiction in cases involving foreign ministers
      • The SC has original and appellate jurisdiction
      • Has the ability to declare laws, presidential actions, and state decisions unconstitutional.
      • This court settles disputes between states.
      • Is the only court required by the Constitution (the Constitution does not say how many justices should be on the court)
      • Has final words an issues dealing with the Constitution, federal laws, and treaties

About the Supreme Court
  • The Court is in session for thirty-six weeks out of each year from early October until the end of June.
  • Justices have life tenure meaning that they are a justice until resignation, retirement death or impeachment.
    • The Justices were given tenure in order to further insulate them from the public since they would not have to try to appease the popular opinion of the public. This means that they have more freedom allowing them to make the decisions that may not always be seen as the "right" one to the general public, the pressures are lifted.
    • Despite being "insulated from public opinion", political ideology is still a factor in justice selection and behavior within the Supreme Court, since court justices are appointed by presidents, who tend to select Supreme Court nominees who will make judicial decisions in line with his or her political ideology .Justices may also be removed, their salaries could also be reduced giving the Justices a little incentive to appeal to the public.
      • A check on this is the ability of the Senate to refuse to confirm a presidential nominee for the Supreme Court.
  • The Supreme Court is primarily an appellate but has original jurisdiction over a small range of cases. an example of the latter being Bush v. Gore.
  • Today the Supreme Court has decided mostly on the expansion of personal liberties.

Powers of the Supreme Court
  • McCulloch v. Maryland: Declared federal law supreme over state law
    • chief weapon in checks and balances system
    • was about whether or not the states have control of their respective banks e.g Bank of Virginia is independent from the Bank of Massachusetts.
Court cases where judicial review has been used:
  • Marbury v. Madison: John Marshall not liking Madison, nor wanting to go against the Federal Government; decided to declare the writ of mandamus unconstitutional.
    • established "judicial review" - power of the courts to declare laws unconstitutional.
  • Fletcher v. Peck (1810): First time the Supreme Court declared a state law unconstitutional.
    • Fletcher lost because when he accused Peck of not having a valid claim over the land when he sold the title to Fletcher, the Supreme Court ruled in favor of Peck. They stated that a sale was a "binding contract" even if a person did not "hold title to their land."
  • Ware v. Hylton (1796): An American owes a British subject money, but a Virginia law states that all debts to alien enemy be seized. The British subject sues via the Treaty of Paris. The Supreme Court declares Virginia's law unconstitutional.

Founders' View
  • Most expected the power of judicial review, but did not expect the courts to play a large role in policy-making
    • The Founders wanted to be neutral, play a passive role in public affairs.
  • There were issues regarding national supremacy and slavery, government and economy, and government and political liberty.
  • They viewed civil courts as courts that would simply judge disputes between individuals and that the courts would relieve the "wronged" party
  • According to the text, the Founders believed that judges would "find and apply existing law"
  • Judicial review arose when the judges questioned this traditional view
  • Many of the founders did not envision the Courts to play such a big part in our democracy.
    • Hamilton believed that courts are the least dangerous branch.
    • The Founders believed that activist judges would later respond that judges make law

Major Eras Which Shaped the Supreme Court
  • 1787-1865: Establishing the Supreme Court's legitimacy (during this time the national government's supremacy was established)
  • 1865-1937: Determining the relationship between government and the economy( as well as protecting the interests of private property owners.)
    • During the time period from the end of the Civil War to the New Deal, the Supreme Court faced an issue in determining when the economy would be regulated by the state and by the nation (Wilson).
    • The Court ruled that the government's attempts to regulate businesses and labor were constitutional.
    • In aiming to protect private property, the Court succeeded in lowering the federal income tax, placing limits on antitrust laws, and preventing the states from setting maximum hours of work (Wilson).
    • The Court applied the 14th Amendment to private property and business, as well, and corporations came to be treated as people. Many corporations as a result took cases to the courts in which the argued against government policies that limited their actions.
        • This influenced the rise of judicial activism, since the Court was now forced to decide upon how to interpret government policy in regards to the businesses.
        • The number of laws that were deemed unconstitutional soared. For example, in the 1880s the Court deemed 48 state and 5 federal laws to be in violation of the constitution.
        • It came to be that many state laws were considered unconstitutional, not because they were not properly applying the Fourteenth amendment for blacks, but for not correctly applying the 14th Amendment in regards to business operations. African Americans, however, were mainly ignored, as the Court did not change its view on allowing blacks and whites to share facilities, such as schools. Blacks also were often not allowed to vote in most states, and nothing was done to change that until later. [1]
        • The Court, however, did allow for some control of businesses. States were some degree of authority over businesses that were “affected with a public interest” (Munn v. Illinois, 94 U.S. 113 (1877)). The Interstate Commerce Commission, which at first could not adjust railroad rates was not given the power to do so, after the court decision in Dayton Goose Greek Railway Co. v. United States. Eventually, states could also limit work hours of employees and certain wage requirements were also set. [2]
  • 1937-present: Personal liberty issues
    • In 1961 civil rights cases, Social Security law cases, and prisoners' rights cases were uncommon; between 1961 and 1990 the number of these cases increased over sixtyfold.
      • This was due partly to the fact that it was easier for individuals to get a case to court.
    • This era was known as the Warren era, named for the chief justice Earl Warren, and contained many history altering cases.
    • Warren Court was one of the most important eras of the Supreme Court in that it passed a number of civil rights legislation and heard a variety of landmark cases involving civil rights and liberties.

Kinds of Federal Courts
1) Constitutional Courts
  • Created by Congress, includes the Supreme Court, and the appellate and district courts created by congress.
  • Created under Article III, therefore its judges are given constitutional protection: they may not be fired and serve life terms
  • Judges serve during good behavior.
  • The judges' salaries doesn't reduce while in office.
  • Examples of Constitutional Courts: the 94 District Courts (The lowest federal courts; federal trials can be held only here) and the 12 Courts of Appeals(Federal courts that hear appeals from district courts; no trials)
2) Legislative Courts
  • Created by Congress for a special purpose. Examples of legislative courts include the Court of Military Appeals and territorial courts.
  • Judges are appointed for a limited term.
  • The judges of these courts do not enjoy the protections of Article III of the Constitution (Wilson).

Selecting Judges

  • Due to the long tenure of judges, the easiest way for the president to alter the political ideological composition of the Supreme Court is via appointing judges. Consequently, much thought and deliberation goes into each decision.
  • Factors that affect judges' decisions
    • Party loyalty
    • Facts of the case
    • Prior court rulings
    • Arguments from lawyers
  • Most Democratic judges are liberal and most Republican ones, conservative.
  • Party background has a strong effect on judicial behavior
  • Appointees for federal courts are reviewed by senators
  • However, no factor can absolutely decide how a judge's behavior
  • Federal judges are nominated by the president and approved by the senate
  • Presidents are surprised when their appointees do not behave the way they imagined when appointing them (Wilson 447).
Senatorial Courtesy:
  • In theory the president nominates a "qualified" person to judge, and the senate approves or rejects the nomination based on those "qualifications" (wilson)
  • The senate will refuse to confirm a presidential appointment if the senator from the state to which the appointment applies objects to the candidate. This means that a president will most likely only nominate a person recommended to him by that "key senator. The senators can "blue-slip" (veto) the nominee (a blue piece of paper on which the senator records his/her views on the nominee. A negative opinion or failure to return the blue slip usually kills the nomination) , however this is a highly criticized practice because it gives the senators too much power when it comes to nominating judges. According to Wilson, a person once said that to reflect reality, Article II, section 2, should read "The senators shall nominate, and by and with the consent of the President, shall appoint" federal judges.
  • Litmus test: an examination of the political ideology of a nominated judge. Even though the president knows he must find candidates supported by their party's senators, it has also become equally important that they match his own political and judicial philosophy.
    • ideology is becoming increasingly important, especially in Supreme Court appointments
    • In 2005, Senate Republican leaders threatened to pass a new rule by simple majority vote that would ban filibusters on judicial nominees, the Republicans agreed to drop two, and future filibusters would be limited to candidates who displayed "exceptional" problems (Wilson)
    • It is important in selecting Supreme Court Justices because there is no tradition of senatorial courtesy. Therefore, the president takes a personal interest in the choices and seeks to find nominees who share his philosophy.
    • Of The 145 Supreme Court nominees presented to the Senate, it has rejected 29.
    • Two issues: whether Judiciary Committee will report out nominees and whether the nominee can withstand a filibuster on the Senate floor (Wilson)
  • There has been some concern that this may downplay professional qualifications
  • It is important to note that it's difficult for presidents to determine a potential nominees true political ideologies and this makes litmus tests less reliable. For example, when Eisenhower nominated Justice Earl Warren, he expected Warren to be a conservative. But in reality, once Warren was in the Supreme Court and free from political pressures, he was much more liberal.
  • In theory, judges that are appointed to the Supreme Court should be impartial, or ideologically neutral. This way, they could view cases objectively, using only the Constitution and previous court cases to make their decisions. However, in practice, the Supreme Court tends to be polarized, with presidents only nominating judges whom they feel confident will act in a way that favors the president's positions. On the other hand, judges have rarely acted exactly the way that the president expects.
Court Packing: Roosevelt received opposition from supreme court justices who opposed New Deal. To solve this problem he proposed a bill that would have allowed him to appoint one new judge for each judge over the age of 70. There would have been a total of 15 judges. There were six men over the age of 70, and three other judges already serving on the Court. Critics saw this as an attempt on the part of FDR to create a judicial situation that would keep his "New Deal" from being ruled unconstitutional. The bill wasn't passed, but it wasn't needed anyway because justices were now in favor of the New Deal Program. This was called the "Switch in time that saved the nine." (Wilson) [3]
Judicial restraint: the practice of judges who are reluctant to overturn the acts of a legislature
Judicial activist: A judge who has no problems about overturning a legislative action
  • Different courts of appeals have different combination of judges, some will be more liberal than others which causes different interpretations of the law as well (Wilson).
    • Ex: More liberal judges in the ninth circuit, while there are more conservative judges in the fifth circuit.
    • Ex: In the fifth circuit, it was unconstitutional for state universities to have affirmative action programs, but in the ninth circuit that was permitted.
  • "Court-packing": Franklin Delano Roosevelt proposed this plan. In this plan, Roosevelt would have the ability to appoint more Supreme Court justices (a maximum of six) for every member of the current Court who was over the age of 70. This proposition by the President was not passed by Congress in the end (Wilson and Dilulio).

The Jurisdiction of the Federal Courts
  • Federal-question cases are cases that involve the Constitution, federal laws, or treaties. These cases usually reach the Supreme Court who then use judicial review to determine the constitutionally of the case/law.
  • Diversity cases are cases that involve different states, or citizens from different states.
  • These cases can be heard in federal or state courts depending on the gravity of the case, mainly if it involves more than 75,000 dollars. (yet most of the types of cases usually go to federal courts over state courts.
  • Cases where both state and federal laws have been broken can be tried in both state or federal courts (Benson and Waples).
  • The majority of cases heard by federal courts begin in the district courts. According to Wilson, in 2002, the 650 or so district court judges received over 300,000 cases.
  • The constitution lists the kinds of cases over which federal courts have jurisdiction in Article III and the Eleventh Amendment and all other matters are left to the state courts.
  • "The courts tend to take on cases that pose a significant federal or constitutional question, involve conflicting decisions by circuit courts, or contain a constitutional interpretation by one of the highest state courts regarding state or federal law."
  • Under the dual sovereignty doctrine, defendants may be tried in both state and federal courts for the same offense (ex: LA police officers were tried in California state court for beating Rodney King and acquitted of assault charge and were later prosecuted in federal court for violating King's civil rights).
  • Supreme Court has upheld dual sovereignty doctrine on two grounds:
      • each level of government has the right to enact laws serving its own purposes
      • neither level of government wants the other to be able to block prosecution of an accused person who has the sympathy of the authorities at one level
  • The Supreme Court does not have to hear any appeal it does not want to hear through the use of writ of certiorari, which allows the Court to vote on which cases to hear. A writ of certiorari is when four justices agree on hearing the case, if there is no writ of certiorari, there is no need to hear the case.
  • Cases begin in the Supreme Court over controversies involving:
    1. Two or more states
    2. The United States and a state
    3. Foreign Ambassadors and other diplomats
    4. A state and a citizen of a different state (if begun by the state)

The Process of Getting To Court
  • Anybody can take a case to court, whether it be to settle a question or alter the interpretation of the Constitution (Wilson 451).
  • It costs $300 to apply for certiorari and will increase if certiorari is granted (Wilson 451).
  • All accepted cases must pass the rule of four in which four of the nine justices must agree to hear the cases
  • The vast majority of all cases heard by the federal courts begin in the district courts and thus are appellate cases.
  • The Supreme Court does not have to hear any appeal it does not want to.
A) Deterrents
1. The Courts usually rejects about 95% of the application for certiorari.
  • The Supreme Court prioritizes cases that involve controversial decisions. A writ of certiorari is granted usually when several federal courts of appeals have made differing rulings on a case, or when the highest state court upholds a law in violation of the Constitution.
2. Costs of appeal are high.
    • But these problems can be lowered by:
    • In forma pauperis: plaintiff heard as pauper, with costs paid by the government
      • Aid is offered so that those that are too poor can still have an opportunity to take their case to the Supreme Court. The middle class citizens are thus the ones that struggle the most, because they are not poor enough to qualify for aid but not wealthy enough to be able to pay on their own.
      • Gideon v. Wainwright (1964)- A landmark case that dictates any person charged with a crime has a right to an attorney even if they cannot afford one (Wilson)
    • Similarly, if your case began as a criminal trial in district courts and you are poor, the government will pay for a lawyer at no charge (Wilson 451).
    • A plaintiffis the party that initiates the lawsuit.
    • Payments made by interest groups who have something to gain form the suit. Ex.American Civil Liberties Union (ACLU) represents people who believe their free speech was violated and the Center for Individual Rights represents people who have been victimized by racial quotas (Wilson)
    • Each party must pay its own way except for cases in which it is decided that:
    • Fee shifting is when the losing defendant will pay the fee.
      • For example if a corporation is found to have violated the antitrust laws, it must pay the legal fees of the winner.
      • If an environmentalist group sues the EPA, it can get the EPA to pay the groups legal costs.
    • Section 1983 of Chapter 42 of the United States Code book- allows a citizen to sue a state or local government official. (As citizens became more aware of their legal rights these types of cases have flooded into the courts.)
3. Standing: the guidelines for who is eligible to bring forward a case
  • The case must be controversial between adversaries.
  • Personal harm must be seen.
  • Being taxpayer not entitlement for suit.
  • Sovereign immunity: the rule that a citizen cannot sue the government without the government's consent
    • For example, if the army accidentally kills your cow while testing a new cannon, you cannot sue the government unless the government agrees to be sued.
    • This rule is relaxed if a First Amendment right is involved.

B) Class action suits
1. Brought on the behalf of people of the same situation.
2. These cases have a financial incentives to bring suit to court.
3. Need to notify all members of the class since 1974 to limit such suits.
    • Brown vs. Board of Education (1954)
      • The case revolved around Linda Brown, a young black girl, who was denied equal protection of the laws since the schools in Topeka were segregated, and therefore, she was refused admission to a white elementary school (Wilson 453).
      • Chief Justice Earl Warren and the Supreme Court decided that the theory of "separate but equal" is constitutional however they found that separate black facilities were far inferior to those belonging to whites therefore they overturned the decision in Plessy v Ferguson.This allowed black children everywhere the constitutional right to attend white schools. ( Though they declared in constitutional Eisenhower still had to enforce the ruling.)
      • Since the Brown case, other groups have been quick to take advantage of the opportunity created by class action suits. (Wilson)

- There are 3 different opinions the Court may issue.
- There is the per curiam opinion which is a brief unsigned opinion.
- There is also the opinion of the court which is an opinion signed by the majority of the Supreme Court.

Brief: A document summarizing the case in the lower courts decision. This is presented by the lawyers of each side in a written document.
- After a case comes to the court on a writ of certiorari, lawyers on each side may submit their brief (Wilson 455).
- After the bried is submitted, the lawyers are then able to present their oral arguments in an open court, in no more than half an hour.
- After that, the judges are given the chance to question the lawyers.
Amicus curiae brief: a brief filed by a "friend of the court" such as an interest group
  • It is from an interested party not directly involved in the suit.
  • Before they can be filed, both parties may agree to the amicus curiae or the Court must grant permission.
  • According to Myers, they are a kind of polite lobbying of the Court that declare which interest groups are on which side.
  • This can also be an oral argument or an written argument
  • An Amicus curiae brief is often submitted by interest groups that fight for certain rights.
    • Example: NAACP has submitted briefs often that support the cause of blacks.

Per Curiam Opinion: Brief and unsigned.
  • This is written by the justices or by justices agreeing with the opinion
Opinion of The Court: Majority opinion of the Supreme Court.
Concurring Opinion: Agrees with the ruling of the majority opinion, but modifies the supportive reasoning. A signed opinion in which one or more members agree with the majority view but for different reasons.
Dissenting Opinion: Minority opinion. As a precedent, it has no value at the time when a decision has already been cast. However, it may may serve as a basis for the reversal of precedent or appeals at a later date.
Precedent: the opinions the Supreme Court explain are just as important as the rulings they make. These decisions become guides, or "precedents" to be taken into consideration when deciding similar cases in the future
In Forma Pauperis- A method whereby the plaintiff is heard as a pauper and can have his or her case heard in a federal court paid for by the government
    • Criminal trial & poor - Receives a lawyer at no charge.
    • Non-Criminal trial & poor - May receive a lawyer by interest groups.
Every Friday justices go into a conference room to debate in secrecy over any cases they have heard of recently.

Writ of Certiorari

The Supreme Court grants writs of certiorari to less than 5% of all cases appealed to it (about 3%-4%). Writs of certiorari are also abbreviated as "cert".

  • Writ of certiorari: An order by a higher court directing a lower court to send up a case for review (Wilson).
  • Certiorari comes from Latin word meaning "to be proven/shown/ascertained"
  • “Most cases come to the court on a write of certiorari”(Wilson and Dilulio 555)
  • Order by four or more Supreme Court justices to take a case that is currently being ruled on by a lower court
  • Taken because the issue of the case deals with a federal or constitutionals question
  • The Supreme Court appeal is heard based on five criteria:
    • Two or more circuit courts of appeals make different rulings on the same cases
    • The highest court in a state ruled that a federal or state law violates the Constitution
    • If one court has come up with a new question
    • If there are inconsistencies between courts of different states
    • If there is a split decision in the court of appeals
    • Dilemma regarding certiorari:
      • If the Supreme Court grants it frequently it will have to many cases to cover
      • If Court grants certiorari rarely then the federal courts of appeals have the last word on the interpretation of the Constitution and federal laws/these federal courts of appeals may be in disagreement as well
  • Certificate- a lower court may request information from the Supreme Court about a rule of law or procedures in specific cases
  • According to Wilson, in a year the Supreme Court may consider over seven thousand petitions asking it to review decisions of lower or state courts, and it rarely accepts more than one hundred of them.
  • The ones that do not go up are left to the lower courts.
  • Which leads to these court cases being interpreted in many various ways and evaluation of the Constitution from the lower courts. (Different view/opinion)

Making Policy

  • Courts make policy whenever they reinterpret the law or the Constitution in significant ways: which may include extending the reach of existing laws or by designing remedies for problems that cause judges to act in administrative or legislative ways
  • Most cases in the federal courts do not change public policy
  • Stare decisis ( A Judicial decision stand," or allowing prior ruling to control the current case) , or allowing prior rulings to stand for current cases, is an "informal rule" for many cases
    • In other words, courts should base their decisions on prior decisions of similar cases, due to the fact that constantly changing law could create chaos in human activity and equal justice.
    • Vast majority of Supreme Court decisions are based on precedents established in earlier cases (Krieger 118).
    • These precedents help make Supreme Court decisions more uniform, predictable, and efficient (Krieger 119). However, this does not mean that the views of the Court do not change. Judicial Activism ensures that ideologies will change over time.
  • Measures of Supreme Court powers:
1) About 160 federal laws have been declared unconstitutional
2) "Frequency with which the Supreme Court changes its mind"
3) The right to settle certain matters normally settled by Congress
4) The court's ability to remedy (a judicial order enforcing a right or redressing a wrong)
  • Is the most powerful indicator
  • According to Wilson, remedies often apply to large groups of the population and circumstances under which citizens live

Federal Courts and Public Policy
  • Federal courts can interpret the law or Constitution
  • Federal courts may extend the reach of previously established laws
  • Federal courts can create ways to heal public policy with the help of judges who may act on their behalf in legal or administrative ways

Checks on Judicial Power
  • Public opinion may still affect the election of judges indirectly
  • The Supreme Court does not have the ability to enforce its rulings and is dependent on the executive branch to do so. For example, when the Supreme Court ruled that Andrew Jackson was not behaving constitutionally, he continued to remove Native Americans from their homes, because the Supreme Court had no way of enforcing their ruling.
  • Congress has the ability to impeach judges. Impeachment of judges, however, is difficult since policy disagreement is not a good enough reason for impeachment. Fifteen federal judges have been impeached in the past, although only four were actually convicted. The only supreme court justice to be impeached was Samuel Chase, who was later acquitted. (Wilson 461)
  • Congress's impeachment process of judges is very similar to the process in which a president would be impeached. A majority vote in the house is required to impeach a judge, then the senate must try the judge.
  • Congress can change the composition of justices during the appointment process
  • Congress can alter the number of justices so that presidents may have more or fewer appointment opportunities that they can appoint ones that are loyal to them
  • Congress can prevent cases from lower courts from ever being reviewed by the Supreme Court
  • Public checks on the court revolve around public opinion. Defying public opinion, can be almost fatal for a judge's career and there is no pattern of public confidence in the courts it has only varied.
  • The legitimacy of the Supreme Court is to a great extent subject to public opinion, controversial rulings can undermine the trust the public has on the judicial branch.
  • Judicial activism has grown recently because of the general growth of government and the judge’s increase in a feeling of authority.
  • Congress and the states can also undo a Supreme Court decision interpreting the Constitution by amending that document.
    • For example, when the Dred Scott decision was made, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified to undo the decision (Wilson 461).
    • Congress has merely passed laws again that the Court has declared unconstitutional.
  • Congress can threaten to withdraw jurisdiction to influence court decisions. In fact, revising legislation can undo Supreme Court decisions.

Political question: an issue the Supreme Court will allow the executive and legislative branches decide
  • example: determination of Congressional district boundaries was a political question until the 1962 case Baker v. Carr.

Kinds of Opinion

    • Opinion of the court: majority opinion, must set forth the decision of the court and the rationale for the decision..
    • Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning.
    • Dissenting opinion: minority opinion, do not become part of law but sometimes cited as persuasive authority later by people trying to overturn/limit the decision of the court
    • Per curiam opinion: A brief unsigned court opinion. Sometimes it is quit long and is signed by the justices agreeing with it. Either the chief justice (if he's on the winning side) writes it or the senior justice on the winning side writes it.

Public Opinion
  • Despite not being elected, judges do pay attention to public opinion. They consider what effect their decisions will make on people's beliefs and consider closely whether that decision will affect the court's legitimacy in the eyes of the public.
    • Judges can also be impeached which makes them more aware of and sensitive to public opinion.
  • We can see how popular support pushes the court many times. The opinions of the court seem to follow the opinions of the time.
  • According to Wilson, current Supreme Court justices look at the court's past of disregarding public opinion and have decided to become more attune with the public. Previous Supreme Court cases, such as the Dred Scott decision is an instance where a good amount of the country became angry with the court's provisions and violated law. The court has learned from mistakes like these.
  • Today, popular support for the Supreme court is relatively low, but that does not dampen their influence or power.
  • The Supreme Court is less willing to impose restraints on police practices.
  • There has been a growth in court activism and plays a larger role in lives of citizens.
  • Many judges in the Supreme Curt are strict constructionist and conservatives, reflecting the beliefs of the mainly Republican presidents that chose them.
  • Opinion can also energize the courts, we can see this is in the times in our country's history where social changes coincided with more activist periods in the courts history, such as the Civil Rights Movement of the 1950's and 1960's. Since the 1960s, public confidence in the Supreme Court has varied as the Court has issued controversial rulings.
  • Pollsters have often looked at how confident people are with the Supreme Court, from 1971 to 1974 public confidence in the court rose, fell from this time to 1976, had a series of up and down figures up until 1989, then dipped until 1991 finally rising in 1996.
  • These fluctuation in public opinion reflect public opinion of the government as a whole, rises in the confidence in the Supreme Court rose around the time of the Watergate scandal where the presidency was discredited, but institutions that checked the power of the president gained praise.
  • However, they have not changed the decisions of the earlier activist courts too much and many of those decisions still stand, like school integration and freedom of expression.
Judicial Review in other countries
France- Can only declare a law unconstitutional if the government has asked them to do so.
    • France has special councils, rather than courts.
Europe- Can affect any nation that makes up the European Community concerning Human Rights
    • In Britain Parliament is supreme and no court may strike down a law that it passes (Wilson and Dilulio).
Canada - Their highest form of court has the power to declare a law unconstitutional; however this cannot occur unless certain qualifications have been met: legislature has to approve it and these laws must be renewed every 5 years (Wilson 462).
Germany- The Federal Constitutional Court can declare in an advisory opinion that a law is unconstitutional before a case has emerged and can judge the constitutionality of laws if asked to do so by the lower courts who do not have the power to declare a law unconstitutional.
Japan- Does not exercise judicial review on cases where a government official is questioning constitutionality. They only use it on cases that involve genuine party disputes.
Views of Judicial Activism
  • Judicial activism can be characterized as a judicial philosophy in which judges make bold political decisions. It is defined by Wilson and Dilulio as the view that judges should discern the general principles underlying laws or the Constitution and apply them to modern circumstances; the Constitution should be applied to questions of a political and social nature.
  • Judicial activism has grown because of the growth in size and scope of government as well as the increased acceptance by a large number of judges of the activist view.
  • Judicial activism has been viewed as very controversial among many Americans. Those in favor of it say that it is essential for correcting injustices among the three branches of government and allowing for changing times and circumstances.
  • Those who criticize it say that because federal judges are not effected by public opinion, they can stray away from making careful decisions based off of the constitution and begin to create new policies; making them unelected legislators.
  • Some believe that the reason we have activist courts is because of the amount of lawyers we have in this country.
  • Judicial restraint is a philosophy that states the court should be more passive and allow the executive and legislative branches to be leaders in policy-making does not advocate the court trying to resolve or answer social and political questions.
  • People that criticize judicial activism claim that the judges do not know the intricacies of the issues they rule on.
    • John Marshall: Was a judicially active judge. He was been created for setting the course of the young Supreme Court. He established the principal of Judicial Review and with this principal the Supreme Court began to make important policy decisions. Marshall dealt with other cases, which ended up strengthening the principal of Judicial Review and ultimately of the Supreme Court.
  • Roger Taney Court: His court established the right of the president to take civil liberties guaranteed by the Constitution during a national emergency. Some feel that of his crucial rulings (Dred Scott case) contributed to the Civil War

Legislation and the Courts-
  • The courts use vague language in all their decision so that they have flexibility in their remedy of situations. It makes it so there is more of an opportunity to respond to changing times.
  • because of all the Supreme Court's decisions bureaucratic agencies have to make debatable actions based on those decisions that, because of disputes over what is right under the interpretation of the laws, ends up back in court.
  • decisions in the end are greatly affected by the attitudes of the justices on the courts. While at one time certain judges will make a certain decision, others will make the opposite decisions, and this can be the cause of major social change, such as the desegregation of schools.
Checks on Judicial Power
  • No institution of government, including the courts, operate without restraints.
  • The fact that judges are not elected does not make them immune to public opinion or to the views of the other branches of government.
  • How important these restraints carry varies from case to case but in the broad course of history they have been significant.
  • One restraint exists because of the very nature of courts.
  • A judge has no police or army; decisions that he or she makes can sometimes be resisted or ignored.
  • If the person or organization resisting is not highly visible and is willing to run the risk of being caught and charged with contempt of court.
  • For example, long after the Supreme Court decided that praying and bible reading could not take place in public schools, schools all over the country were still allowing prayers and bible reading.
  • When a failure to comply is easily detected and punished, the courts' power is usually unchallenged (Wilson)
Supreme Court in Action
  • Meet 36 weeks a year (October-end of June)
  • Justices read briefs in their independent offices, hear oral arguments in stately courtrooms, and discuss their decisions in conference room. Justices speak and vote in order of seniority, from Chief Justice to newly appointed justice.
  • Lawyers have a half-hour to present their argument to the Supreme Court in hearing cases.
    • If the federal government is involved, the solicitor general also has a portion of the half-hour to represent the government in its own argument.

Supreme Court Justices
  • John Jay was the first Chief Justice of the Supreme Court. He served from 1789 to 1795.
  • John Marshall ruled in cases like Marbury v. Madison to strengthen and define the judicial branch (judicial review.)
  • William O. Douglas was the Supreme Court Justice to serve the longest (36 years)
  • William Howard Taft was the only president to become a Supreme Court Justice
  • Thurgood Marshall was the first black Supreme Court justice
    • Thurgood Marshall was also the chap who represented Brown in Brown v. Board (1954).
  • Sandra Day O'Conner was the first female Supreme Court justice
    • Prior experience as an Arizona state judge. Appointed by Reagan in 1981.
  • Sonya Sotomayor is the first Latina Supreme Court Justice
  • William H. Rehnquist was Chief Justice in 1924
    • Appointed by Nixon in 71' as a justice and by Reagan in 86' as chief.
  • Louis Brandeis (1916-1939) was the first Jewish justice to serve in the Supreme Court.
  • Earl Warren was Supreme Court Justice between 1953 and 1969.
    • During this time the Supreme Court was referred to as the Warren Court, and made drastic changes in civil rights and civil liberties.
  • John Harlan was the only supreme court justice to serve whose grandson also ended up serving on the court.
  • Charles Evans Hughes was the only Supreme Court Justice to run for president (Wilson 461).
  • Roger Brooke Taney was the Supreme Court Justice in charge when the Dred Scott Decision was upheld, he served in officer from September 23, 1833- June 25, 1834
  • Samuel Chase was impeached by the House in 1804, but acquitted by Senate.

  1. ^ Wilson, James Q., and John J. Dilulio. American Government: Institutions and Policies. Tenth ed. Boston, MA: Charles Hartford, 1986. Print.
  2. ^ Wilson, James Q., and John J. Dilulio. American Government: Institutions and Policies. Tenth ed. Boston, MA: Charles Hartford, 1986. Print.
  3. ^ Wilson, James Q., and John J. Dilulio. American Government: Institutions and Policies. Tenth ed. Boston, MA: Charles Hartford, 1986. Print.