Supreme Court BuildingSupreme Court Building
Supreme CourtSupreme Court
Holy temple with priests wearing black robes. Very strange in a democracy
Perception of Judges as non-politicalWhat role should an unelected institution
play in a democracy?
Constitutional DebateConstitutional Debate
Hamilton, Fed #78– the least dangerous branch– holds neither the purse nor the sword– Lifetime appointment
Brutus, Anti-federalist– unelected judiciary – no room for appeal – all powerful expansive judiciary which will subvert
state rights
Structure of Federal JudiciaryStructure of Federal Judiciary
Supreme Court9 Justices
Mostly appellate
Hears about 100out of 10,000 requests
U.S. Courts of Appeals13 districts with 170 judges
3-judge panels hear appeals33,000 cases per year
U.S. District Courts94 district courts with 650 judges
Trial courts with original jurisdiction225, 000 cases per year
Statecourts
Imperial Judiciary or Least Imperial Judiciary or Least Dangerous Branch?Dangerous Branch?
What is judicial review?Can the Appeal and Circuit courts exercise
judicial review?Are there any constitutional limits on
judicial review?Can congress or president overturn ruling
with 2/3rds vote? 3/4ths votes?Does it happen very often? Why?
How does a case get to the How does a case get to the Supreme Court?Supreme Court?
What procedure do judges use? What happens if Supreme Court does not hear a
case? Why do the justices agree to hear one case and not
another? How much discretion do they have? What are “political questions”?
How the Court DecidesHow the Court Decides
Oral argumentConferenceOpinion writingForming a majority
– Brown v. Board of Education– What are you doing for Lunch– Call me a second rate intellect will you
Dissents and concurring opinions
Pre-Bush Supreme CourtPre-Bush Supreme Court
Ginsburg, Souter, Thomas, BreyerScalia, Stevens, Rehnquist, O’Connor, Kennedy
The Pre-Bush CourtThe Pre-Bush Court
Left– John Paul Stevens dissents on ½ of cases
Leaning Left– David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg
voted together 62% Leaning Right
– Anthony M. Kennedy, Sandra Day O'Connor voted together 64 % Right- Conservative
– William H. Rehnquist Right –Movement Conservatives
– Thomas and Scalia voted together 82%
Ginsburg, Souter, Breyer and StevensScalia, Thomas, Alito, Roberts (CJ)
It’s the Kennedy CourtIt’s the Kennedy Court
Appointed by President Reagan
It’s the Kennedy CourtIt’s the Kennedy Court
2007 voted with the majority in all 24 of the cases decided by votes of 5 to 4
2008 – Kennedy writes the majority opinion– Boumediene v. Bush Guantánamo case, – Kennedy v. Louisiana, the death penalty for
child rape – Dada v. Mukasey, procedural rights to
immigrants facing deportation
Nominating SC JusticesNominating SC Justices
What is the constitutional process?How and why has it changed in recent
years?President’s most important decision
– Alito, Roberts both under 53
The kabuki dance of “advice and consent”– Clarence Thomas- I have never thought about
Roe v. Wade. If I did though, I wouldn’t tell you.
Start of the Retirement/Death Watch
Robert Bork Borking
Stealth StrategyStealth Strategy Appoint people no one
knows anything about
David SouterHarriet Miers
Minority StrategyMinority Strategy
Alberto Gonzalez
Clarence ThomasMiguel Estrada (below)
Respected Liberal/Conservative JuristsRespected Liberal/Conservative Jurists
Well respected Within ideological
mainstream
Nuclear Option v. Filibuster Nuclear Option v. Filibuster CompromiseCompromise
51 votes, not 60 for cloture Group of 14 compromise
– vowed to filibuster judicial nominees only “under extraordinary circumstances, where each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.”
– Votes on Bush nominees to the federal Circuit Courts of Appeals: Janice Rogers Brown, Priscilla Owen, and William Pryo
Alito Confirmation BattleAlito Confirmation Battle
O’Conner –swing vote on abortion, civil rights, environment etc
Bush- major executive power in wartime cases
Judge Alito (Ct of Appeals)– Catholic/pro life– Former prosector
Death WatchDeath WatchJustice John Paul Stevens - 88 Ruth Bader Ginsburg - 75David Souter-68
Litmus test for SC NomineesLitmus test for SC Nominees
No– Judicial skills– Undermines constitutional system– No reason to treat court’s decisions as authoritative
Yes– Everyone else is doing it– Process has always been political– Independence comes after nomination
We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our property under the Constitution.
–Chief Justice Hughes, 1907
Importance of precedent! (stare decisis)
Judge-Made LawJudge-Made Law
Interpreting the ConstitutionInterpreting the Constitution
What does original intent mean? Judicial restraint?
How do you identify original intent?Why should judges use original intent?What are the arguments against original
intent? Do conservative justices practice what they
preach?
Brown v. Board of EducationBrown v. Board of Education
How did Justices take political considerations into account?
Why did they do it?What were consequences?What about present case of race based
admissions to universities?
Guantanamo BayGuantanamo Bay
““The worst of the worst”?The worst of the worst”?
Hamdi v. Rumsfeld and Rasul v. Bush – -combatants are entitled to some neutral
adjudicatory process
Congress– Detainee Treatment Act
Detainee Treatment ActDetainee Treatment Act (2005) (2005)
no court, justice, or judge shall have jurisdiction to hear or consider--
`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba
Scalia- "Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?"
Military Commissions Act (2006)Military Commissions Act (2006)
unlawful enemy combatant- determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."
forbid explicitly the invocation of the Geneva Conventions
Establishes alternative judicial procedures
Boumediene v. Bush and Al Boumediene v. Bush and Al Odah v. United States (2008)Odah v. United States (2008)
Justice Kennedy writes the 5-4 majority – prisoners had a right to the habeas corpus under
the United States Constitution and that the MCA was an unconstitutional suspension of that right.
Kennedy “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is‘”
Scalia’ DissentScalia’ Dissent
MCA provides habeas corpus guarantees "how to handle enemy prisoners in this war
will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails."
“Guantanamo Bay lies outside the sovereign territory of the United States."
DissentsDissents
Roberts –MCA is "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."
Scalia - "will almost certainly cause more Americans to be killed."
ImplementationImplementation
Courts have few tools to force compliance with rulings
Implementation through the Courts– Gideon v. Wainwright
Implementation through states– Engel v. Vitale – Brown v. Board
Limits on Judicial ReviewLimits on Judicial Review
Are Self ImposedJudicious use of power
– Refuses to get involved in “Political questions”– Delays rulings till controversy dies down
Roche-- “The court’s power has been maintained by a wise refusal to employ it in unequal combat”
ConclusionConclusion
the least dangerous branch or an imperial judiciary? – The Tom Delay view
But . . . – a government of limited powers – a written constitution – the court exercises a good deal of restraint – possible to impeach judges