AP US Government and Politics s1

AP US Government and Politics Chapter 14: The Judiciary

 In the US, judges play a large role in making policy o Judicial review – the right of the federal courts to declare laws of Congress and acts of the executive branch void and unenforceable if they conflict with the Constitution o Strict-constructionist . Judges should only judge; should only apply rules that are stated in, or clearly implied by, language of the Constitution o Activist . Judges should discover general principles underlying the Constitution and its vague language and apply them

I. The Development of the Federal Courts a.Traditional view of civil courts i. Judged disputes between people who had direct dealings with each other and decided which of the two parties was right ii. Supplied relief to the wronged part usually by requiring the other to pay money iii. Based on the understanding that judges would find and apply existing laws b.Founders believed in traditional role of judges i. Thought the judicial branch was least powerful ii. Judicial review would allow Court the power to decide if something was unconstitutional, it was intended to restrict power of the legislative branch c. Historic eras of the federal courts i. 1787-1865: nation building, legitimacy of the federal government, and slavery ii. 1865-1937: relationship between the government and the economy iii. 1938-present: personal liberty and social equality d.National Supremacy and Slavery (1785-1865) i. National supremacy 1.Marbury v. Madison (1803), McCulloch v. Maryland (1819) – Chief Justice John Marshall 2.Major decisions a.SC could declare an act of Congress unconstitutional b.Power granted by the Constitution to the federal government came from the people and should be generously construed – implied powers, “necessary and proper” c. Federal law supreme over state law d.Power of federal government to regulate commerce between states ii. Slavery 1.Dred Scott v. Sanford (1857) – Chief Justice Roger B. Taney a.Slave Dred Scott taken by his owner to a territory where slavery was illegal under federal law. Scott claimed since he resided in free territory he was now a free man 2.Decision a.Taney held that blacks were not citizens of the US therefore Scott could not bring suit in a federal court.

e.Government and the Economy (1865-1937) i. Private property 1.14th Amendment states no state shall “deprive any person of life, liberty, or property” a.Person could also be firm or corporation b.Businesses began to challenge government regulations 2.Court had to decide what kind of regulations were permissible a.Ruled against: i. Injunctions to stop labor strikes, federal income tax, antitrust laws, power of the Interstate Commerce Commission to set railroad rates, prohibition of child labor, maximum work hours b.Ruled in support of: i. ICC to regulate railroad rates, railroad safety laws, antiliquor, mine safety, workers compensation, regulate fire- insurance, regulating wages and hours 3.Difficult to determine “reasonable” versus “unreasonable” regulation f. Government and Political Liberty (1938-present) i. Declared unconstitutional: 1.Laws that restricted freedom of speech, denied passports to communists, permitted the government to revoke citizens, withheld mail, restricted availability of government benefits ii. FDR and Court packing 1.SC dominated by justices who opposed the welfare state and federal regulation 2.FDR wanted to get legislation passed, but didn’t have any Court vacancies to fill a.Proposed a bill that would allow him to appoint a new justice for each justice over age 70 who refused to retire, up to a total membership of 15 b.Would have allowed him 6 new justices c. Court, reacting to FDR’s mandate in 1936, began approving New Deal measures d.Eventually, FDR would appoint 7 justices iii. Chief Justice Earl Warren (1953) 1.Activism to redefine the relationship of citizens to the government and protect the right and liberties of citizens from government interference g.The Revival of State Sovereignty i. States have the right to resist some forms of federal action (states can refuse to carry out mandates of the federal government)

II. The Structure of the Federal Courts a.The Supreme Court i. Only court required by the Constitution, all other courts and their jurisdictions are creations of Congress ii. Made up of 9 justices, appointed by the president for life, confirmed by the Senate iii. Term runs from first Monday in October to June/early July 1.First 2 weeks of the month, the court sits in session and hears oral arguments 2.Every Friday and last 2 weeks of the month, the court sits in recess, discusses cases, votes, and writes opinions iv. If 4 justices agree to hear a case, writ of certiorari is granted; if denied, decision of the lower court stands v. Lawyers from both sides submit briefs, amicus curiae briefs also submitted 1.Brief: sets forth facts of case, lower court decision(s), arguments for side represented by lawyer, discusses related cases 2.Amicus curiae – friend of the court brief from parties not related to case (i.e. interest groups) 3.If the government is party to a case, government represented by solicitor general vi. Oral arguments 1.Usually 30 minutes per side, no jury or witness testimony 2.Justices take this time to ask questions vii. Opinions 1.Opinion of the Court a.Majority opinion b.Written by the Chief Justice if Chief Justice is in the majority 2.Concurring opinion a.An opinion on the side of the majority but with different reasons 3.Dissenting opinion a.Minority opinion b.Lower federal courts/Constitutional courts i. Federal Courts of Appeals 1.12 total, one in each circuit and one in Washington, D.C. 2.intermediate courts, must hear all appeals from district courts ii. Federal District Courts 1.94, at least one in each state, Washington D.C., Puerto Rico 2.Trial courts – hear civil and criminal matters c. Selecting Judges i. Nominated by president, usually of same political party, and confirmed by the Senate 1.Presidents believe ideology will shape judges actions 2.Not always the case – judges actions also shaped by the facts of the case, prior rulings by other courts, lawyers’ arguments ii. Senatorial Courtesy 1.Custom that the Senate will not approve a presidential appointment opposed by a major party senator from the state in which the appointee will serve iii. Litmus Test 1.Presidents try to pick judges who reflect their own political and judicial philosophy 2.Democratic judges more liberal, Republican judges more conservative

III. The Jurisdiction of the Federal Courts a.Dual court system – state and federal i. Federal court jurisdiction 1.Federal-question cases a.Cases that involve the United States government, the United States Constitution or federal laws, or controversies between states or between the United States and foreign governments b.Examples: a claim by an individual for entitlement to money under a federal government program such as Social Security, a claim by the government that someone has violated federal laws, or a challenge to actions taken by a federal agency 2.Diversity cases a.Between citizens of different states, or between US citizens and those of another country, must involve damages of $75,000+ 3.Appeals of decision of federal regulatory agencies 4.Bankruptcy ii. Federal or state jurisdiction 1.Breaking a state and federal law (i.e. robbery of a federally insured bank) iii. Dual sovereignty doctrine 1.State and federal authorities can prosecute the same person for the same conduct a.Each level of government has the right to enact laws serving its own purposes b.Neither level of governments wants the other to be able to block prosecution of an accused person

IV. Getting to Court a.If you’re poor i. In forma pauperis – if you are without funds, you can file and be heard as a pauper ii. If your cause began as a criminal trial in the district courts and you are poor, the government will provide a lawyer iii. If the matter is not criminal and you can’t afford a lawyer, an interest group may take up the case b.Fee Shifting i. Enables the plaintiff to collect its costs from the defendant if the defendant loses c. Standing i. To sue, you need to have standing 1.There must be an actual controversy between adversaries 2.You must show you have been harmed by the law or practice ii. Sovereign immunity 1.Government must give consent before it can be sued d.Class Action Suits i. A case brought into court by a person on behalf not only of him/herself but of all the other people in similar circumstances

V. The Power of the Federal Courts a.The Power to Make Policy – measures of judicial power i. Declaring laws unconstitutional

ii. The court changing its mind 1.Stare decisis (“let the decision stand”), principle of precedent a.Court case today should be settled in accordance with prior decisions on similar cases iii. Willingness of courts to settle political questions (matters once left to the legislature) 1.Example: malapportionment of congressional districts iv. Remedies 1.Judicial orders setting forth what must be done to correct a situation that a judge believes to be wring 2.Remedies today are more far-reaching a.Example: judge in Alabama heard a case brought by a prison inmate, judge ordered the prisoner’s situation be improved and a revamp of the entire prison system to improve the lives of all prisoners b.Views of Judicial Activism i. Support it: 1.Argue the courts must correct injustices when other branches of the government, or the state, refuse 2.Courts are the last resort for people without the votes or influence to obtain new laws ii. Oppose it: 1.Judges don’t have the expertise to rule in the areas they are ruling in 2.Court-declared rights involve balancing needs of many groups, raising and spending money, assessing costs and benefits of alternatives – things judges aren’t experts in 3.Federal judges are appointed, don’t have power to legislate c. Legislation and the Courts i. Constitution is worded vaguely, judges have used ambiguities as elastic ii. Congress passes laws that require interpretation, adding to the courts ability to design broad remedies iii. Congress passed laws that induce litigation 1.Regulatory laws will be challenged by business groups if they go too far and by consumer or labor organizations if they don’t go far enough

VI. Checks on Judicial Power a.Nature of the courts i. Judges cannot enforce decisions, decisions they make may be ignored b.Congress and the Courts i. Can alter the composition of the courts through Senate appointments and impeachment, changing the number of judges (especially increasing and giving the president more vacancies to fill) ii. Congress and the states can amend the Constitution iii. Repassing a law declared unconstitutional iv. Power to decide/change/withdraw jurisdiction of lower courts and appellate jurisdiction of the Supreme Court c. Public Opinion and the Courts i. Court is sensitive to opinion, especially opinions of elites ii. Public tends to support the courts when other branches under attack