Judicial Branch

     “Presidents come and go, but the Supreme Court goes on forever.” William Howard Taft

Crazy power

Nix v Hedden- 1893- TARIFF ON IMPORTATION OF VEGGIES. Nix imported tomatoes, he argues he was exempt as tomatoes are a fruit.

Ruling- "Botanically speaking, tomatoes are fruits of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people...all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert."

You say tomato…..

The court rejected the botanical truth that the tomato is in fact a monstrously sized berry, and deferred to the culinary vernacular of vegetable to describe it. Thus is tax yet paid on imported tomatoes.

You see, like Cartman, The Supreme Court can say....

Judicial power

Make policy??› Interpret Constitution and laws› Extend reach of law› Design remedies› Declare laws unconstitutional (over 1300)› Handle cases once left to legislature

Judicial activism vs Strict Constructionists

Activism is Controversial- offers a remedy

Typically liberal but not always (liberal ex- based on an assumption of privacy) (conservative ex-United States v. Lopez-Set limits on Congress and commerce clause powers)

Liberal activism

Griswold v Conn- 1965 ruling established a constitutional right to possess, distribute and use contraception. The “right to privacy”. Find that in the Constitution. It was assumed by the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the privilege against self-incrimination, which provides protection for the privacy of personal information. ( 5th amendment) 

Conservative activism

Entergy Corp. v. Riverkeeper- Under the Clean Water Act electric power companies must use "the best technology available" to keep from harming fish when use public H2Oto cool their generators… SC ruled that the EPA should consider the cost to the power companies when evaluating "the best" environmental technologies. This was not included in the law by Congress

Strict Constructionists

“I don't think it's a living document, I think it's dead. More precisely, I think it's enduring. It doesn't change. I think that needs to be orthodoxy.” _ Antonin Scalia

Follow the Constitution to the letter Typically conservative

Activism arguments

For› Laws vague, gives courts needed power› Fed gov’t increasingly on defensive, laws

create these challenges that courts must decide

› Well times change, so do our priorities

Blind? Deaf too?

Activism arguments

Against› Judges lack expertise to legislate› Initiatives require balancing priorities and

allocating resources ( that’s political)› Courts are not accountable

Checks on power

Courts rely on others to uphold decisions

Congressional control› Confirm, impeach, remove› Create courts, add judges› Overturn rulings with legislation› Amend Constitution (flag burning)

Public checking power? But how?

They are not elected but the public still has a role

Fear of defying public will to significantly- hurts legitimacy

Getting on the Supreme Court

Who is the Court and why?

Competency- need experience- Harriet Myers lacked it

Ideology- Litmus test Reward- friends LBJ appointed Abe Fortas a

long time friend- party loyalists O’Connor, Rehnquist

Political support- Reagan promised woman, delivered O’Connor

Religion- gee almost always Christian Race and gender- Black seat Thomas replaced

Thurgood Marshall

Confirmation

To date 29 of 151 have been rejected or withdrawn John Tyler was 1 for 6, that’s not even good if he was an Oriole hitter!

ABA rates candidates Lobbyists chime in- Usually against-

BORKED!!

Who are they? Few have a clue

Confirmation in Senate

Senate Judiciary Comm- then Senate vote

Closest recently- Clarence Thomas (1991) 52-48

How do you get there?

Jurisdiction- Court needs authority to act

Standing- person must have a stake, no harm no foul ( ex. Court could not rule on line item veto until it was used)

Writ of Certiorari- SC 4 justices must decide case is worthy (about 8,000 petitions a year, they hear about 90)

Amicus brief-Friends of court file papers

How do they decide?

Use precedent- ex. Bong Hits for Jesus case used 1. Bethel School Dist vs Fraser Restricted lewd speech in school 2. Tinker v Des Moines allowed speech that does not disrupt

Stare Decisis- “Let the decision stand”- bias in favor of precedent

Judicial Review-Marbury v Madison power to declare law unconstitutional

What do they say? Opinions

› Opinion of the Court- Majority opinion, ruling and why

› Minority opinion- Reasoning of the minority on the court

› Concurring opinion- Agree with ruling but have different reasoning

What are the lower courts?

Path to the court

Supreme Court

Court of Appeals State courts

District Court

Types of law

Constitutional- Law of the land ( ex 2nd amendment- right to bear arms.) All laws must be Constitutional. 10th amendment gives states powers not vested in fed but all laws must be Constitutional.

Types of law

Statuatory- laws enacted by a legislature ( ex Brady Bill- title XI of 1994 crime bill) State laws must NOT supercede the Constitution or federal law

Types of law

Administrative- Ability of administrative agencies, the bureaucracy, to establish law ( ex- partial definition A semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following: a folding or telescoping stock; a pistol grip that protrudes conspicuously beneath the action of the weapon; a bayonet mount; a flash suppressor or threaded barrel; and a grenade launcher )

You mean I can't buy one of these?

Types of law

Case- it aint nothin’ till the court says what it is. The courts interpret and apply the laws. ( ex Printz v US overturned Brady Bill provision “the central obligation imposed upon police by the interim provisions of the Brady Act--the obligation to "make a reasonable effort to ascertain within 5 business days…. is unconstitutional.”

Types of law

Criminal vs Civil – › Criminal law is an action prohibited by statute ( OJ murdered two people) that is punishable by the state.

› Civil law is our duty to one another (wrongful death suit against OJ Simpson) .

The gun battle rages on