grab today’s agenda (9:5) then answer the question below. american courts play a far more...

Grab today’s Agenda (9:5) then answer the question below.

American courts play a far more formative role in politically sensitive policy areas such as race, the

availability of abortion services, the role of religion in political life, and the rights of the accused than do courts in any other nation. The idea that the courts rather than

legislative majorities can and do decide fundamental political issues seems on its face to be blatantly

undemocratic. Do you agree or disagree? Explain.

Do Now:

Judicial Activism vs. RestraintThe Role of the Federal JudiciaryJudicial RestraintJudicial Activism

The Role of the Federal Judiciary

The Marshall Court (1801-1835)Virginia’s John Marshall served

as chief justice of the U.S. Supreme Court for 34 years.

During that time, Marshall took a court whose power and position in the new government were unclear and established it an equal and coordinate branch of the national government.


The Marshall Court (1801-1835)In addition, Marshall also gave

content and weight to the supremacy clause.◦ In Marbury v. Madison (1803),

Marshall declared judicial review to be the prerogative of the courts.

◦ He wrote that “it is, emphatically, the province and duty of the judicial department, to say what the law is… So, if a law be in opposition to the constitutions; the court must… decide that case… conformable to the constitution, disregarding the law.


The Marshall Court (1801-1835)Marshall’s goal of securing the

position and importance of the judiciary in the new national government did not go unopposed.◦ Years later, President Jefferson was still

arguing that Marshall’s expansive reading of the judiciary’s role violated separation of powers.

◦ Jefferson argued that each of the three branches of government “has an equal right to decide for itself the meaning of the Constitution in the cases submitted to its action… and that the Court is neither more learned nor more objective than the political branches of the government.”


The Marshall Court (1801-1835)Marshall’s view, firmly

pressed over his 3 ½ decades as chief justice, prevailed, In McCulloch v. Maryland (1819), the Marshall Court established a broad reading of national powers and a narrow reading of the opportunity for the states to limit or check national power.


The Taney Court and States’ Rights (1836-1864)The chief contribution of the

Taney Court was to assert the rights of the community without fundamentally damaging the rights of property.

However, the darker side of the Taney Court’s legacy came in its defense of states’ rights and, more explicitly, of property in human beings.


The Taney Court and States’ Rights (1836-1864) In fact, the Taney Court

overstepped disastrously in attempting to secure the southern position on states’ rights and the place of slavery in the Union in its infamous Dred Scott v. Sanford (1857) ruling.◦ In essence, the Court ruled that blacks

could not be citizens and that slaves carried into free states and territories remained property.

◦ This decision did much to bring on the Civil War by suggesting that free states and territories could not exclude slavery even if they wished.

The Role of the Federal JudiciaryThe results of the Civil War, while resolving the issue of national power over the states, reasserted the rights of corporate property. Industrial capitalism was given an enormous boost by the demands of the Civil War.

Even as the northern economy expanded dramatically, the Supreme Court developed constitutional interpretations that severely limited the power of government to regulate private enterprise.

It interpreted the 14th Amendment, passed initially to protect the rights of newly freed slaves, as providing near-absolute protection for private property against government regulation.

As the focus on property rights increased, attention to civil rights accorded to former slaves decreased. Despite the passage of the 13th, 14th, and 15th Amendments, civil and political rights for blacks were not protected.

The period from 1880 to 1930 saw property rights go up and civil rights, particularly for blacks, in steep descent.


Nine Old Men and the Switch in TimeWhen Franklin D. Roosevelt

assumed the presidency early in 1933, 78% of the federal judiciary and 6 of the 9 Supreme Court justices were Republicans, and most were deeply committed to stout judicial defense of private property and a laissez-faire economy.

Nonetheless, the grim reality of the Depression steadily drew into question the logic of laissez faire and government nonintervention.


Nine Old Men and the Switch in TimeIn 1935, the Supreme Court

struck down two of the mainstays of President Roosevelt’s response to the Depression: the National Industrial Recovery Act and the Agricultural Assistance Act.

The president’s reaction was swift and fierce. He declared, “We have… reached the point as a nation where we must take action to save the Constitution from the Court.”


Nine Old Men and the Switch in TimeRoosevelt’s attempt to

“pack” the Court with more compliant justices failed, but it did shock some of the offending justices into retirement and others became more compliant. Between 1937 and 1943, FDR was able to nominate and have easily confirmed 8 new justices.


Nine Old Men and the Switch in Time The new Court followed a tradition of

judicial restraint championed by



judicial restraint championed by Justices Oliver Wendell Holmes



judicial restraint championed by Justices Oliver Wendell Holmes and Louis Brandeis. Both contended, and the Roosevelt administration certainly agreed, that the Court rarely should obstruct the work of the people’s elected representatives in Congress and the White House.



judicial restraint championed by Justices Oliver Wendell Holmes and Louis Brandeis. Both contended, and the Roosevelt administration certainly agreed, that the Court rarely should obstruct the work of the people’s elected representatives in Congress and the White House.

The new Court accepted a wide range of new federal government programs designed to stabilize and manage the economy.

After 1937 the Court rarely intervened in issues of federal economic regulation.


The Warren Court and Individual Rights (1953-1969) The appointment of Earl Warren as

chief justice of the Supreme Court in 1953 marked a new era.

Warren was an accomplished political leader and former governor of California rather than a judicial scholar or sitting judge.

He moved the Court from the New Deal posture of judicial restraint and deference to the political branches of the government to the posture of an assertive, even demanding, advocate of individual rights and liberties.


The Warren Court and Individual Rights (1953-1969) The Warren Court made a long series

of dramatic rulings expanding individual rights in such diverse areas as freedom of speech, press, and religion, the rights of minorities to equal political rights and economic opportunities, the rights of accused to counsel and to fair and speedy trials, and the rights of citizens to due process before legislative and administrative committees and boards.

Many citizens came to feel that the Warren Court was moving too far too fast in areas such as civil rights and the rights of the accused.


The Burger Court (1969-1986)Earl Warren’s 1969 resignation

gave President Richard Nixon the opportunity to replace him. Republicans and southern conservatives, hoping that the new chief justice would lead the Court in rolling back some of the Warren Court’s more liberal initiatives were heartened by the nomination and Senate approval of Warren Burger.

Burger was a conservative jurist with 13 years of experience on the DC Circuit Court of Appeals.


The Burger Court (1969-1986)Yet, those who expected the

Burger Court to be aggressively conservative were disappointed.◦ No major decision of the Warren Court

was overturned by the Burger Court.◦ In fact, the Burger Court did more to

consolidate than to challenge the legacy of the Warren Court.

It upheld affirmative action programs, recognized a woman’s right to seek abortion services, and expanded the rights to counsel and against self-incrimination for persons accused of crimes.


The Rehnquist Court (1986-2005) The Rehnquist Court became more

determinedly conservative over time. Its majority, crafted by Presidents Nixon

and Reagan and led by Chief Justice William Rehnquist and Associate Justice Antonin Scalia, sought to modify key rulings of the Warren Court.

Rehnquist’s legacy is to have limited the scope of the federal government while strengthening the role of the judiciary against both Congress and the executive.

He encouraged the court to strengthen the role of the police, limit the appellate rights of convicts, allow indirect government funding of religious schools, and enhance the role of the states in American federalism.


The Rehnquist Court (1986-2005) The Rehnquist Court sought to limit, where it

could not overturn, the ban on school prayer, affirmative action, gay rights, and the rights of women seeking abortion services.

For example, abortion rights…◦ Roe v. Wade (1973), decided in Justice Rehnquist’s

first year on the court (as an associate justice), established a woman’s right to choose abortion, especially early in her pregnancy.

◦ As the Court became more conservative and soon after Rehnquist was elevated to chief justice, Webster v. Reproductive Health Services (1989) provided an opportunity to limit access to abortion services.

◦ While not overturning Roe, the decision in Webster upheld the rights of states to regulate abortion clinics and to prevent public money and facilities from being sued to perform abortions.


The Rehnquist Court (1986-2005)Civil Rights provides another

good example of the Rehnquist Court trimming but not completely overturning major liberal precedents.

While William Rehnquist undoubtedly moved the high court to the right, he was unable to assemble a majority of justices willing to take the court – and the nation – as far to the right as he wanted to go.


The Roberts Court (2005-Present)John Roberts, during his

confirmation hearings, argued that the courts should decide issues narrowly, speak modestly, and act unanimously where possible.

However, the Roberts Court did not follow his argument.


The Roberts Court (2005-Present) While his court ruled unanimously in

most of the decisions his first year, they quickly became deeply divided, with many decisions being 5-4.

Roberts has ruled against the use of race as a deciding factor to maintain integrated schools (“The way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”), Guantanamo detainees do have rights, the right to bear arms in an individual right as well…etc…

The Robert Court continues to make decisions that delight and anger both sides from campaign finance, to healthcare, to voting rights and religious rights.

Judicial RestraintDefinitionStrict ConstructionistA philosophy that the courts should allow the states and the other

two branches of the federal government to solve social, economic, and political problems.

Judges should judge, confine themselves to applying those rules states or clearly implied by the language of the Constitution. Judges should play a minimal role in policymaking.

Federal courts should act only in those situations where there are clear constitutional questions.

Judicial restraint has no logical identity with liberalism or conservatism, big government or small government, active government or passive government.

Courts can use restraint in some areas and be activist in other areas.

Judicial RestraintIn Action Judicial restraint is usually emphasized by the idea that the courts

should step aside so that state and national legislatures and executives could legislate to control large and powerful economic entities like corporations, banks, and railroads.

Judicial restraint is generally understood as the courts following the political branches of the government rather than trying to induce political change of their own.

It is the responsibility of the elected representatives of the people to make policy by passing statutes that will be binding on all citizens. It is the role of the courts to evaluate charges that the statutes have been breached and to assess penalties if the courts conclude that the charges are true.

Judicial Restraint

ExamplesDred Scott v. Sanford (1857) upheld the law in

Missouri that allowed slavery to exist.Planned Parenthood v. Casey (1992) upheld

restrictions on abortion as long as they did not place an “undue burden” on a woman.

D.C. v. Heller (2008) ruled that the 2nd amendment guarantees an individual the right to own a firearm even if they are not part of a well-regulated militia.

Judicial Restraint

CriticismsJudges fail to consider societal changes. It is

necessary to correct injustices and promote needed social change.

The Constitution is a living document. Activism is necessary to actively interpret the Constitution as new conditions arise.

Judicial ActivismDefinitionA philosophy that the courts should take an active role in

solving social, economic, and political problems. Courts should uphold the “guardian ethic:” they act as a guardian of the people.

Activist judges and courts believe that social, economic, and political problems should be addressed and that the courts are one vehicle for doing so.

Judicial activism has no natural or logical identity with liberalism or conservatism, big government or small government, active government or passive government.

Courts could use activism in some areas and restraint in other areas.

Judicial Activism

In ActionBeginning in the mid-1950s, many would even say

with the appointment of Earl Warren as chief justice, judicial activism came more commonly to be understood as aggressive pursuit of equal rights in areas as diverse as civil rights, gender equity, the rights of the accused, and, many feared, social and economic outcomes.

Many contemporary observers, including former President Clinton, see judicial activism as a device that is sometimes necessary to assist society in addressing a particularly difficult issue.

Judicial ActivismExamples Baker v. Carr (1961) established the “one man, one vote” principle to

reapportionment. Gideon v. Wainwright (1963) required states to provide legal aid for the

poor. Furman v. Georgia (1972) temporarily stuck down some death penalty laws

as violating the 8th Amendment. Texas v. Johnson (1989) struck down a Texas law that banned flag burning. U.S. v. Lopez (1995) struck down the Gun Free School Zones Act. Atkins v. Virginia (2002) struck down state death penalties for the mentally

retarded. Lawrence v. Texas (2003) struck down a Texas sodomy law. Citizens United v. FEC (2010) struck down campaign contribution limits for

corporations and unions. Shelby County v. Holder (2012) struck down section 4 of the Voting Rights

Act of 1965.

Judicial Activism

CriticismsThe power to make the laws is the power of the

legislative branch alone; courts do not have constitutional right to do so.

Federal judges are not elected officials and therefore do not necessarily speak for the people.

ConclusionThe broad history of the Supreme Court and of the U.S.

federal courts in general has been a search for the proper balance between the rights of property and of persons when these conflict.

For much of the 19th century, the Court advantaged property, sometimes very heavily, whereas in the 20th century it has sought a better balance, although the pendulum has swung back and forth.

Courts cannot avoid making policy. Every time a court applies an existing law to a new situation or interprets an existing statute in a novel way, it is reshaping and to some extent elaborating the law.

ConclusionBecause the courts are so powerful, the role that

they play in addressing major social issues is intensely debated. Some argue that elected politicians are often reluctant to tackle difficult issues and that judges, with their lifetime appointments, might be better positioned to take a leading role.

While judicial activism has been a powerful force at some stages in our national history, as with the Marshall and Warren Courts, judicial restraint is closer to the popular expectation.

grab today’s agenda (9:5) then answer the question below. american courts play a far more...

Documents

marshall court

supreme court

formative role

role of religion

rights of property

defense of states rights

virginias john marshall

taney courts legacy