Chapter 14 - Judiciary

1. The Development of the Federal Courts

Judicial Review – the right of the federal courts to declare laws of Congress and acts of the executive branch unlawful if they violate the Constitution
Strict-constructionist Approach – rules that are clearly stated in the Constitution
Activist Approach – to interpret the Constitution based on a moral or economic philosophy

When the Founding Fathers first created the judicial branch, they were knew that it would be the least powerful branch of the three. The judges soon thought that it was their own choice to decide exactly what the constitution's laws mean.

1. National Supremacy and Slavery
   The dominant motive of the Supreme Court from 1789 to the Civil War was the nation-state relationship. -two important cases to judicial branch – Marbury v. Madison and McCulloh v. Maryland. -each case showed that the judicial branch could declare an act of congress unconstitutional. Supreme court rulings can overturn state laws. Marshall was a strong believer that the federal law overturned state law until Roger Taney succeeded Marchall, who was a strong believer in the states.

2. Government and the Economy
   In 1868, when the 14^th amendment was passed, the economy started to become more of an issue than it had before due to the blacks becoming citizens and the loss of slaves. This became a workload for the Supreme Court. In the 1880's there were 5 federal and 48 state laws that were unconstitutional, and only 2 since the country's founding were unconstitutional.

3. Government and Political Liberty
   1937-1974-the supreme court didn't overturn any act of Congress to regulate business, but did overturn many that violated personal political liberties. Roosevelt wanted to pass a law that would enable him to get 15 justices in the Supreme Court, but before he did, the Supreme Court started approving the New Deal's laws and packages.

4. The Revival of State Sovereignty
   Since 1992, the court has for some reason backed away from giving the federal government all of the power and started giving the states some leeway.

1. The Structure of the Federal Court

Constitutional Court – exercise the judicial powers in Article III; these judges are constitutionally protected from being fired or having their salary reduced
District Court – the lowest federal courts where cases begin
Courts of Appeals – review decisions made by district courts
Legislative Court – have some specialized purpose and the judges have terms and can have their salary cut; i.e. Court of Military Appeals and territorial courts

1. Selecting Judges
   Litmus Test – a test of ideological purity
   There are many reasons why judges are nominated for high-power positions because of their political party and political ideology and personal views on certain subjects such as race or sex crimes. Some presidents appoint judges because they feel that they can predict the way that the judge will vote, but the judges usually do the opposite of what the president has appointed them for.
   1. Senatorial Courtesy
   This is basically a trustworthy senator suggesting someone who they think is worthy of the Supreme Court and the president nominates that judge.
   2. The “Litmus Test”
   A test to decide if the judge has the right qualifications to serve on the supreme court. With divided government, the litmus test is used more often and is highly relied on.

1. The Jurisdiction of the Federal Courts

   Federal-question Cases – cases concerning the Constitution, federal law, or treaties
   Diversity Cases – cases involving citizens of different states
   Writ of Certiorari – an order issued by a higher court to review a lower court's case

   Since there are two court systems, they take care of different cases. Sometimes, they can both be used. Such an instance is that of the robbery of a federally insured bank. In some state cases, there can be an appeal for a federal case. If there are two states involved, it can only be heard by the Supreme Court. The court can pick which cases it wants to review through the writ of cert. It decides on these two circumstances, Two or more federal circuit courts of appeals have decided the same issue in different ways and the highest court in a state has held a federal or state law to be in violation of the Constitution or has upheld a state law against the claim that it is in violation of the Constitution.

2. Getting to Court
   In Forma Pauperis – procedure where a poor person can file and be heard in court as a pauper free of charge
   Fee shifting – enables the plaintiff to collect its costs from the defendant if the defendant loses
   Plaintiff – the party that initiates the suit
   Standing – a legal concept that refers to who is entitled to bring a case
   Sovereign Immunity – a doctrine that says a citizen cannot sue the government without its consent
   Class-action Suit – a case brought into court by a person on behalf not only of him/her, but of all other people in a similar circumstance

   a. Fee Shifting
   If you sue a corporation, the company must pay the winner's bills. If an EPA member sues the EPA, then they can get the EPA to pay the court costs and the damages. If you sue a government official, you can get the government to pay the costs.

   b. Standing
   To get into federal court without financial restrictions, there are three rules. There must be an actual controversy between real adversaries. You must show that you have been harmed by the law or practice about which you are complaining. Merely being a taxpayer does not ordinarily entitle you to challenge the constitutionality of a federal governmental action.

   c. Class-Action Suits
   These suits are used to not only end the suffering of one person, but for anyone else in that particular situation. i.e. - Brown v. BOA

3. The Supreme Court In Action

   Brief – a document that sets forth the facts of the case, summarizes the lower-court decision, gibes the arguments for the side represented by the lawyer who the brief, and discusses the other cases that the court has decided to bear on the issue
   Amicus Curiae – interested groups or individuals, not directly involved in a suit, who may file a legal brief or speak in favor of one side
   Per Curiam Opinion – a brief, unsigned opinion issued by the Supreme Court to explain its ruling
   Opinion of the Court - a Supreme Court opinion written by one or more justices in the majority to explain the decision in a case
   Concurring Opinion – a Supreme Court opinion by one or more justices two agree with the majority's conclusion but for different reasons
   Dissenting Opinion – a Supreme Court opinion by one or more justices in the minority to explain the minority's disagreement with the Court's decision

   The solicitor general decides what cases will be reviewed by the Supreme Court. Sometimes there will be a person from a suit who tries to convince the court that their case should be heard.

4. The Power of the Federal Courts

Stare Decisis – “let the decision stand”
Political Question – an issue that the Supreme Court refuses to consider because it believes the Constitution has left it entirely to another branch to decide
Remedy – a judicial order preventing or redressing a wrong or enforcing a right

1. The Power to Make Policy
   The courts make policy whenever they interpret the constitution. In many cases, the court will overrule its own previous ruling on a certain subject. Remedies are set so that the loser of a suit does not do the thing that they were sued for. Nowadays, judges are using remedies for large groups of people rather then just a small group or a single person.

2. Views of Judicial Activism
   If the other two branches of government will not take charge of an event such as segregation, then the other one will. Even though people blame judges for not knowing how facilities work, the people who complain do not know how the things work either.

3. Legislation and the Courts
   The court sees the Constitution as an elastic creature that can be manipulated for almost any situation. Congress has passed laws that contain vague phrasings much like the Constitution and can be interpreted by the Supreme Court to their liking or for a specific situation.

1. Checks On Judicial Power

1. Congress and the Courts
   Congress can impeach judges that they do not like, they can not approve of an appointed judge for Supreme Court, and can tell the president who to appoint. It can also alter the number of judges in the Supreme Court, create more courts, and give more choice of judges to the president. Congress and the states can undo a Supreme Court decision by amending a document. The Judicial branch is probably the weakest of the three branches, but yet is very powerful at the same time.

2. Public Opinion and the Courts
   Public opinion has much influence on the courts and their rulings. This is so due to the fact that judges are human too and read the same newspapers and watch the same television as we do.

Web resources:

U.S. Court System Explains how the courts work and basic facts on who serves on the Supreme Court...

Supreme Court Homepage - Contains information on the Supreme Court, other courts, and also to court cases, rules, orders, bar orders, and many other judiciary records and terms.

U.S. Courts - Explains what each section of the website is including examples. It is very informative.

Assigned Reading: Supreme Court Decision On an Apeal from Guantonomo Bay
I think that this is very interesting in the sense that the court holds these people's lives in the palm of their hand.


FRQ:

In a well organized essay address why or why not the litmus test is a reasonable way to examine a politician or other federal being. Make sure to consider the political crisis that has been happening in the past few decades. Refer to the Litmus Test section in Chapter 14 (p.413) or online for more examples.