Lecture Notes – The Judiciary – Week 13

The Judiciary


1 . Explain what judicial review is, and trace
its origin in this country to Marbury v. Madison.

2. List and comment on the three eras of
varying Supreme Court influences on national policy, from the days of
slavery to the present.

3. Explain what is meant by a dual court system
and describe the effects it has on how cases are handled and

4. List the various steps that cases go through
to be appealed to the Supreme Court and explain the considerations
involved at each level.

5. Discuss the dimensions of power exercised
today by the Supreme Court and the opposing viewpoints on the
desirability of activism by that court.

Text Outline

I. The American Judicial System

A. Only in the United States do judges
play so large a role in policy-making – The policy-making
potential of the federal judiciary is enormous. Woodrow Wilson
once described the Supreme Court as a constitutional convention in
continuous session.

1 . Judicial review: right of
federal courts to rule on the constitutionality of laws and
executive acts

a. Chief judicial weapon in
system of checks and balances

2. In Britain, Parliament is

3. In other countries, judicial review
means little

a. Exceptions: Australia,
Canada, Germany, India, and a few others

B. Debate is over how the Constitution
should be interpreted

1. Strict constructionism:
judges are bound by wording of Constitution

2. Activist (loose
: judges should look to underlying
principles of Constitution

3. Not a matter of liberal versus

a. A judge can be both
conservative and activist, or liberal and strict

b. Today: most activists tend to be
liberal, most strict constructionists tend to be

II. The development of the federal

A. Founders view

1. Most Founders probably expected
judicial review but not playing so large a role in

2. Traditional view: judges find
and apply existing law

3. Activist judges would later respond
that judges make law

4. Traditional view made it easy for
Founders to predict courts would be neutral and passive in
public affairs

5. Hamilton: courts least dangerous

6. But federal judiciary evolved toward
judicial activism

B. National supremacy and slavery:

1. McCulloch v. Maryland
(1819): federal law declared supreme over state law

2. Interstate commerce clause is placed
under the authority of federal law; conflicting state law

3. Dred Scott v. Sandford
(1857): Blacks were not, and could not become, free
citizens of the U.S.; federal law (Missouri Compromise)
prohibiting slavery in northern territories was

C. Government and the economy: Civil War to

1. Dominant issue of the period:
under what circumstances could the economy be regulated by
state or federal governments

2. Private property held to be protected
by the Fourteenth Amendment

3. Judicial activism-Supreme Court
assessing the constitutionality of governmental regulation of
business or labor

4. The Supreme Court unable to define
reasonable regulation

5. The Court interprets the Fourteenth
and Fifteenth amendments narrowly as applied to blacks-upheld
segregation, excluded blacks from voting in many

D. Government and political liberty: 1936 to
the present

1. Court establishes tradition of
deferring to the legislature in economic cases

2. Court shifts attention to personal
liberties and is active in defining rights

3. Court-packing plan (FDR)

4. In the 1990s, some rulings in favor of
state’s rights


III. The structure of the federal

A. Two kinds of federal courts

1. Constitutional courts exercise
judicial powers found in Article III

a. Judges serve during good

b. Salaries not reduced while in

c. Examples: District Courts (94),
Courts of Appeals (12)

2. Legislative courts

a. Created by Congress for
specialized purposes

b. Judges have fixed terms

c. Can be removed; no salary

d. Example: Court of Military

B. Selecting judges-all are nominated by
president and confirmed by the Senate

1. Party background some effect on
judicial behavior, but rulings are also shaped by other

2. Senatorial courtesy: judges
must be approved by that state’s senators, particularly for
district courts

3. The litmus test

a. Presidential successes in
selecting compatible judges

b. Concern this may downplay
professional qualifications

c. Greatest impact on Supreme Court-no
tradition of senatorial courtesy

IV. The jurisdiction of the federal

A. Dual court system

State courts are the real workhorses in
the dual court system. In the early 1990s, state courts averaged
about 90 million cases annually, compared with 270,000 in federal

1. One state, one federal

2. Federal cases listed in Article III
and Eleventh Amendment of Constitution

a. Federal-question cases:
involving U.S. Constitution, federal law, treaties

b. Diversity cases: involving
different states, or citizens of different states

3. Some cases can be tried in either

a. Example: if both federal and
state laws have been broken (dual sovereignty)

b. Justified: each government has
right to enact laws and neither can block prosecution out of
sympathy for the accused

4. State cases sometimes can be appealed
to Supreme Court

B. Route to the Supreme Court

1. Most federal cases begin in
district courts

a. Most are straightforward, do
not lead to new public policy

2. Supreme Court picks the cases it wants
to hear on appeal

a. Uses writ of certiorari

Other avenues exist for taking an
appeal to the Supreme Court aside from the writ of certiorari.
A “writ of certification” can be used when a U.S. Court of
Appeals requests instructions from the Supreme Court on a point
of law never before decided. A “writ of appeal” is available,
in simple terms, when the constitutionality of a government
action is in question or when a decision from a three-judge
district court is appealed.

b. Requires agreement of four
justices to hear case

c. Usually deals with significant
federal or constitutional question

(1) Conflicting decisions by
circuit courts

(2) Highest state court issues a
ruling involving constitutional interpretation

d. Only 3 to 4 percent of appeals are
granted certiorari

e. Others are left to lower

f. Results in diversity of
constitutional interpretation among appeals

V. Getting to court

A. Deterrents

1. Court rejects over 95 percent of
applications for certiorari

2. Costs of appeal are high

a. But these can be lowered

(1) In forma
: plaintiff indigent, with costs paid by

(2) Indigent defendant in a
criminal trial: legal counsel provided by

(3) Payment by interest groups
(e.g., American Civil Liberties Union)

b. Each party must pay its own way
except for cases in which it is decided:

(1) that losing defendant
will pay (fee shifting)

(2) Section 1983 suits

3. Standing: guidelines

a . Must be controversy between

b. Personal harm must be

c. Being taxpayer not ordinarily
entitlement for suit challenging federal government

d . Sovereign immunity

B. Class-action suits

1. Brought on behalf of all
similarly situated

2. Financial incentives to bring

3. In 1974, Supreme Court tightened rules
on these suits

V I. The Supreme Court in action

A. Oral arguments by lawyers after
briefs submitted

1. Each side has one half-hour, but
justices can interrupt with questions

2. Role of solicitor general – decides
what cases the federal government will appeal from lower courts
and personally approves every case the government presents to
the Supreme Court.

a. Often asked to submit amicus
curiae. This brief is usually highly regarded by the

3. Amicus curiae briefs submitted if
parties agree or Supreme Court grants permission

The Supreme Court must give its
permission to accept an amicus brief. The Court is generous in
its consent, taking 85 percent of all requests to file such

4. Many sources of influence on justices,
e.g., law journals

B . Conference procedures

1. Role of chief justice: speaking
first, voting last

2. Selection of opinion writer

3. Concurring and dissenting

C. Voting patterns of the Court

1. 1960’s – Liberal Activist Court
– “The Warren Court” All the thos 60’s landmark cases.

2. 1970s and 1980s

a. Liberal/activist
bloc-Brennan, Marshall, Blackmun, Powell

b. Conservative/ strict
constructionist bloc-Burger, Rehnquist, O’Connor

c. Swing bloc-White,

d. Liberals usually in minority;
sometimes won by convincing swing bloc

3. Rehnquist Court still deeply divided
in the 1990s

a. Liberals-Stevens, Ginsburg,

b. Conservatives-Rehnquist, Scalia,

c. Swing vote-Kennedy, Souter,

4. Unity may be more notable than
divisions-38.7 percent of opinions were unanimous in the 1995

VII. The power of the federal courts

A. The power to make policy

1. By interpretation of
constitution or law

2. By extending reach of existing

3. By designing remedies

B . Measures of power

1. Number of laws declared
unconstitutional (over 120)

2. Number of prior cases overturned; not
following stare decisis

3. Deference to the legislative branch
(political questions)

4. Kinds of remedies imposed; judges go
beyond what is narrowly required

5. Basis for sweeping orders either from
Constitution or interpretation of federal laws

C. Views of judicial activism

1. Supporters

a. Courts should correct
injustices when other branches or state governments refuse
to do so

b. Courts are last resort

2. Critics

a. Judges lack expertise

b. Courts not accountable; judges not

3. Possible reasons for

a. Adversary culture

b. Easier to get standing in

D. Legislation and the courts

1. Laws and the Constitution are
filled with vague language

a. Gives courts opportunity to
design remedies

2. Federal government is increasingly on
the defensive in court cases; laws induce litigation

3. The attitudes of federal judges affect
their decisions

VIII. Checks on judicial power

A. Judges are not immune to politics
or public opinion

1. Effects will vary from case to

2. Decisions can be

a. Examples: school prayer,
school desegregation

b. Usually if wrongful act is not
highly visible and actor is willing to risk

B. Congress and the courts

1. Confirmation and impeachment
proceedings gradually alter composition of courts

2. Changing the number of judges, giving
president more or less appointment opportunities

The number of justices sitting on the
Supreme Court is determined by Congress. The current number of
nine justices was established in 1869. However, the membership
of the Court has ranged from five to ten

3. Revising legislation declared

4. Altering jurisdiction of the courts
and restricting remedies

5. Constitutional amendment – According
to Henry Abraham, six constitutional amendments have been
adopted specifically to alter decisions by the Supreme

C. Public opinion and the courts

1. Defying public opinion frontally
is dangerous, especially elite opinion

2. Opinion in realigning eras may
energize court

3. Public confidence in court since 1966
has varied

D. Reasons for increased activism

1. Growth of government

2. Activist ethos of judges



activist approach An approach
to judicial review which holds that judges should discover the
general principles underlying the Constitution and its often vague
language, amplify those principles on the basis of some moral or
economic philosophy, and apply them to cases.

amicus curiae A Latin term
meaning “friend of the court.” Refers to interested groups or
individuals, not directly involved in a suit, who may file legal
briefs or oral arguments in support of one side.

brief A legal document
submitted by lawyers to courts. It sets forth the facts of a case,
summarizes any lower court decisions on the case, gives the arguments
for the side represented by the lawyer filing the brief, and
discusses decisions in other cases that bear on the issue.

civil law Rules defining
relationships among private citizens.

class-action suit A case
brought into court by a person on behalf of not only himself or
herself but all other persons in similar circumstances. The Supreme
Court in 1974 tightened rules on these suits to only those authorized
by Congress and those in which each ascertainable member of the class
is individually notified if money damages are sought.

concurring opinion An opinion
by one or more justices who agree with the majority’s conclusion but
for different reasons that they wish to express.

conservative/strict constructionist
One of three groups of justices in the 1970s and 1980s,
including Chief justice Warren Burger, who took a consistently
conservative position on issues.

constitutional court Lower
federal courts created by Congress which exercise the judicial powers
delineated in Article III of the Constitution. Its judges, therefore,
enjoy two constitutional protections-they serve “during good
behavior” and their salaries may not be reduced while in

courts of appeals The federal
courts that have the authority to review decisions by federal
district courts, regulatory commissions, and certain other federal
courts. Such courts have no original jurisdiction; they can hear only

criminal law A body of rules
defining offenses that are considered to be offenses against society
as a whole and for which conviction could result in a prison

dissenting opinion The opinion
of the justices on the losing side.

district courts The lowest
federal courts where federal cases begin. They are the only federal
courts where trials are held.

diversity cases Jurisdiction
conferred by the Constitution on federal courts to hear cases
involving citizens of different states. The matter, however, must
involve more than $50,000, and even then the parties have the option
of commencing the suit in state court.

dual sovereignty A doctrine
holding that state and federal authorities can prosecute the same
person for the same conduct, each authority prosecuting under its own

federal-question cases
Jurisdiction conferred by the Constitution on federal courts to hear
all cases “arising under the Constitution, the laws of the United
States, and treaties.”

fee shifting A practice that
enables plaintiffs to collect their costs from a defendant if the
defendant loses. The Supreme Court has limited fee shifting to cases
in which it is authorized by statute.

in forma pauperis A petition
filed with the U.S. Supreme Court by an indigent person. The normal
$300 filing fee is waived for such petitions.

judicial review The right of
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.

legislative court A lower
federal court created by Congress for specialized purposes. These
justices have fixed terms of office, can be removed from office, and
may have their salaries reduced while in office.

liberal/activist bloc One of

three groups of justices in the 1970s and 1980s, led by Justice
William Brennan, who took a consistently liberal position on issues.
It was usually in the minority.

litmus test A test of
ideological purity used by recent presidents in selecting and
senators in confirming judges to nominate to federal

Marbury v. Madison A
decision of the Supreme Court written by Chief justice John Marshall
in 1803 which interpreted the Constitution as giving the Supreme
Court the power to declare an act of Congress unconstitutional. This
decision is the foundation of the federal judiciary’s power of
judicial review.

McCulloch v. Maryland
A decision of the Supreme Court written by Chief justice John
Marshall in 1819 which held that the power of the federal government
flows from the people and should be generously construed so that any
laws “necessary and proper” to the attainment of constitutional ends
are permissible, and that federal law is supreme over state law even
to the point that the state may not tax an enterprise (such as a
bank) created by the federal government.

opinion of the Court An
opinion by the Supreme Court that reflects the majority’s

per curiam opinion A brief and
unsigned opinion by the Supreme Court.

plaintiff The party that
initiates a suit in law.

political question An issue
that the Court refuses to consider because it believes the
Constitution has left it entirely to another branch to decide. Its
view of such issues may change over time, however.

remedy A judicial order
setting forth what must be done to correct a situation a judge

believes to be wrong.

Section 1983 case A provision
in the U.S. Code which allows a citizen to sue state and local
government officials who have deprived the citizen of some
constitutional right or withheld some benefit to which the citizen is
entitled. If the citizen wins, he or she can collect money damages
and lawyers’ fees from the goverrunent.

senatorial courtesy The
tradition by which the Senate will not confirm a district court judge
if the senator who is from that state and of the president’s party

solicitor general The
third-ranking officer in the Justice Department, who decides what
cases the federal government will appeal from lower courts and
personally approves every case the government presents to the Supreme

sovereign immunity A legal
concept that forbids a person from suing the government without its
consent. Congress has given its consent for the government to be sued
in many cases involving disputes over contracts or damage done as a
result of negligence.

standing A legal concept that
refers to who is entitled to bring a case. Three basic rules govern
standing. First, there must be an actual controversy between real
adversaries. Second, the person bringing suit must show that he or
she has been harmed by the law or practice involved in the complaint.
Third, merely being a taxpayer does not entitle a person to challenge
the constitutionality of a governmental. action.

stare decisis An informal rule
of judicial decision making in which judges try to follow precedent
in deciding cases. That is, a court case today should be settled in
accordance with prior decisions on similar cases.

strict constructionist approach
An approach to judicial review which holds that judges
should confine themselves to applying those rules that are stated in
or clearly implied by the language of the Constitution.

Supreme Court of the United States
highest court in the federal judiciary specifically
created by the Constitution. It is composed of nine justices and has
appellate jurisdiction over lower federal courts and the highest
state courts. It also possesses a limited original

swing bloc One of three groups
of justices in the 1970s and 1980s that vacillated between liberal
and conservative voting positions.

writ of certiorari An order
issued by the Supreme Court granting a hearing to an appeal. A vote
of four justices is needed to issue the writ. Only about 3 or 4
percent of all appeals are accepted.