Chapter 14

THE COURTS

The Court Changes Course on Roe v. Wade

• In the 1973 case of Roe v. Wade, the U.S. Supreme Court ruled that a state’s interest in regulating abortion to protect the life of a fetus can only override a woman’s fundamental right to privacy when the fetus becomes viable.– 7 to 2 decision with Justice Harry Blackmun

writing the opinion– A catalyst for the formation of the pro-life

movement

• Sixteen years later, in the case of Webster v. Reproductive Health Services, the Court upheld a Missouri law that barred the use of public monies and facilities to perform abortions and required physicians to test for fetal viability at 20 weeks.– 5 to 4 decision with Chief Justice William

Rehnquist writing the opinion– Diminished a woman’s right to have an abortion– Several states soon began to legislate various

limits on abortions.

• The language of the U.S. Constitution had not changed in the time that elapsed between Roe and Webster.– The interpretation of the constitutional

standing of privacy and the right of the states to regulate abortions had changed significantly.

– Webster was decided by a much more conservative court with several Reagan appointees.

Context of Chapter 14

• This chapter considers the ambiguous relationship between the Court and democracy.

• The opening vignette illustrates how the Court makes decisions that have important consequences for the American people, which raises fundamental issues about democracy.

• By interpreting the law, the Court is a national policymaker.

The Structural Context of Court Behavior

• Constitutional powers– Article III (the Judicial Article)

provides very little detail about the organization and operations of the judicial branch.

– Marbury v. Madison (1803) and the development of judicial review

The U.S. Court System: Organization and

Jurisdiction• Dual court system

– There is one court system for the national government and one in each of the states.

– Most laws, legal disputes, and court decisions are located in the states.

– The most important political and constitutional issues eventually reach the federal courts.

Constitutional Provisions: Article III

• The Supreme Court is the only court specifically mentioned in Article III of the Constitution.

• Congress was given the task of establishing “such inferior courts as the Congress may from time to time ordain and establish.”

• Article III specifies the jurisdiction of the federal courts.

Federal District Courts — Trial Courts of Original Jurisdiction

• Most cases in the federal court system are first heard in one of the 94 district courts, and most of the business of the federal courts takes place at this level.

• Grand juries are used to indict a defendant in criminal cases.

• This is the only level of federal court that uses juries and witnesses.

• Some cases are heard by petit (trial) juries while some are heard by a judge (bench trial).

U.S. Courts of Appeal — Intermediate-level Courts of

Appellate Jurisdiction• Courts of appeal do not hear new cases;

they hear only cases on appeal.• The United States is divided into 12

geographic regions (circuits) to hear appeals from the district courts.

• There is also a thirteenth appeals court, called the U.S. Court of Appeals for the Federal Circuit, located in Washington, D.C.

Procedure in the Courts of Appeal

• Briefs• Oral arguments

– New factual evidence cannot be introduced.– Appeals are based on legal issues rather than facts.– No witnesses are called or cross-examined.– The panel issues a decision, often weeks or even

months after the oral arguments.– In important cases, the decision may be accompanied

by a written opinion that explains the reasoning of the court.

• Decisions establish precedents that guide other judges; significance of stare decisis

U.S. Supreme Court

• A court of both original jurisdiction and appellate jurisdiction

• The size of the Court is determined by Congress; the number has been set at nine since 1869.

• The decisions and opinions of the Supreme Court become the most important sources of precedent on federal and constitutional questions for courts at all levels of jurisdiction.

• Congress determines the appellate jurisdiction of the Supreme Court.

•The Supreme Court serves as an appellate court for the federal appeals courts and for the highest courts of the states.

•Appellate jurisdiction is discretionary; the Supreme Court decides for itself whether to accept the case.

• The Constitution establishes the original jurisdiction of the Supreme Court.

• Disputes involving ambassadors and other diplomatic personnel

• Cases in which two or more states are parties to the dispute

• Disputes between the federal government and a state

• Disputes between a state and a citizen from another state

Appointment to the Federal Bench

• The appointment process– Nominated by the president– Characteristics of federal judges

– Advice and consent — the Senate’s power to confirm or reject presidential nominations

• Ideology– Past political and ideological

positions of federal court nominees are generally a good guide to their later behavior on the bench.

– Presidents are sometimes surprised by decisions of their nominees.

The Supreme Court in Action

• The Supreme Court is in session from the first Monday in October until late June or early July.

• The Court is a tradition-bound institution defined by many rituals (such as entering the courtroom in order of seniority) and long-standing norms (which are unwritten but clearly understood ways of behaving).– Secrecy– Courtesy– Seniority– Precedent

The Court has a number of screening mechanisms to control

its docket.– Cases must be real and adverse.– Parties in a case must have standing.– Cases must be ripe.– Appeals must be filed within a specified time limit,

paperwork must be proper and complete, and a filing fee must be paid.

– Requirements may be waived if a petitioner is indigent and files an affidavit in forma pauperis.

– The most important tool that the Court has for controlling its agenda is the power to grant or not to grant a writ of certiorari (cert).

Deciding Cases

• Cases that are granted cert will be scheduled for oral argument.

• After reading the briefs and hearing oral arguments, the justices meet in conference to deliberate and reach a decision.

• Written opinion — a statement of the legal reasoning that supports the decision of the Court

Key Personnel

•Chief Justice•Solicitor General•Law clerks

The Supreme Court As a National Policymaker

• People often say that the Court should not make policy but should only settle disputes.

• The Court can’t help but make public policy because the disputes it settles involve contentious public issues and fundamental questions about the meaning of our constitutional rules.

• There are certain restrictions on the Court’s power to make policy.

Structural Change and Constitutional Interpretation: Three Periods in the History of U.S. Constitutional Law

• Period I: National power and property rights

• Period II: Government and the economy

• Period III: Individual rights and liberties

The Debate Over Judicial Activism

• Judicial review

• Reversing past Supreme Court decisions• Deciding political questions• Remedies• Loose construction contrasted with

original intention• The modern Court is more activist than

it was in the past.

The Courts and Democracy

• Courts make public policy.• Judges are limited by the

actions and preferences of many other political and governmental actors.

Governmental-Sector Influences on the Supreme Court

• The Court must coexist with other governmental bodies that have their own powers, interests, constituencies, and perceptions of the public good.

• The Court does not have any independent means of enforcing its decisions.

• The president and Congress have certain constitutional powers that give them some degree of influence over the Court.

Political Linkage-Sector Influences on the Court

• Interest groups, social movements, and the public influence the Court.

• Interest groups and social movements may use a test case as a political tactic.

• Interest groups often get involved in suits even when they are not a party to the case by filing amicus curiae briefs.

• The influence of elites• There is a great deal of evidence that the

Court pays attention to public opinion.

• Democracy and the Supreme Court reconsidered– People disagree about what the role of the

Court should be in a democracy.– From the point of view of the conception of

democracy used throughout this book, the appropriate role for the Court is to encourage the play of popular sovereignty, political equality, and liberty in American politics.