The Judiciary (Supreme Court)

1. Federalist Paper #78: The Supreme Courtis the “least dangerousbranch.”

Constitutionalism AKA“The Madisonnian Dilemma”

↙ ↘ Self-Government VERSUS Minority Rights

NOTE: Neither majorities nor minorities can be trusted with complete power. What can be done???

Solving The Madisonnian Dilemma

The Constitution deals with the problem in three ways:1) President, Senators, and House members are elected

by different people. 2) Constitution limited powers of the federal

government and gave plentiful powers to the states. (Federalism)

3) Bill of Rights*** Courts must protect the rights of individuals while

protecting the power of the majority to govern…..”majority rule and minority rights!!!!”

John Roberts’s Explanation“Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Roberts Analogy Redux: Umpire = JudgesTeams = President, Congress, State LegislaturesRule Book = Constitution, Precedent, Et Cetera

Establishing Judicial Review:Marbury v. Madison

1. Judicial Review is not listed in Article III but IS in the Federalist Papers

2. This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by John Adams as Justice of the Peace in the District of Columbia But whose commission was not subsequently delivered. Marbury petitioned the SupremeCourt to force James Madison to deliver the documents (writ of mandamus), but the court, with JohnMarshall as chief justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.

3. Marbury had argued that theConstitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act conflict.

Judicial PhilosophiesJudicial Restraint• Defers to elected institutions

like Congress and state legislatures.

• Believes in a limited number of rights.

• Does not create new precedent.

• Tends to believe the meaning of the Constitution doesn’t change. (Originalists)

Judicial Activism • Tends to believe in the

concept of a “living Constitution.”

• Will create new rights by striking down laws.

• Sometimes means a judge will use his/her values to assess a case.

Current Ideological Make-Up of the Supreme Court

Conservatives Swing

• Roberts ½Kennedy½ • Alito• Scalia• Thomas

Liberals Breyer Kagan Ginsburg Sotomayor

Nomination Process

• Nominated by the President for a life-time appointment.

• Must go through Senate Judiciary Hearing.• Is confirmed with a majority vote in the

Senate.

Nomination Process (Continued)

1. Nominations have become increasing controversial.2. Litmus Test v. Competence/Character3. Robert Bork 4. Clarence Thomas & Anita Hill 5. Recent Senate Votesa. Kagan: 63-37b. Sotomayor: 68-31c. Alito: 58-42d. Roberts: 78-22e. Breyer: 87-9f. Ginsburg: 96-3g. Thomas: 52-48 (Closest in History) h. Souter: 90-9i. Kennedy: 97-0j. Bork: 42-58k. Scalia: 98-0l. O’Connor: 99-0

Kennedy v. Bork

"Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens of whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy." Edward Kennedy

Clarence Thomas v. Anita Hill

US Supreme Court

Clarence Thomas • 1. Very controversial

confirmation hearings. 2. Very influence by Ayn Rand….he

forces all clerks to read The Fountainhead.

3. Doesn’t speak during oral argument. 4. Travels around in an RV all summer

from Wal-Mart to Wal-mart.5. Believes in the “Constitution in Exile.”

Ruth Bader Ginsburg

• 1. Former head of the ACLU. • 2. Opera Lover. • 3. Believes abortion rights are an

equal rights, not privacy, issue.• 4. Golfs and can speak fluent

Swedish.

Samuel Alito• 1. Appointed by Bush• 2. Wife cried at confirmation hearing. • 3. Loves the Phillies.• 4. Set a record for SAT’s • 5. Hates the Sopranos.• 6. Replaced first woman on Supreme

Court.

Antonin Scalia• 1. Is the funniest of the justices.• 2. Aggressive at oral argument.• 3. Believes in originalism. • 4. Has 9 kids and hunts with Cheney. •

Sotomayor

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. “

Anthony Kennedy

1. Is the “swing” voter.

2. So boring his father offeredhim $100 to get himself arrested.

3. Goes to Europe every summer to law conferences.

Stephen Breyer

Elena Kagan

1. Former solicitor general 2. Former dean of Harvard Law School3. In trouble for opposing the Solomon

Amendment at confirmation hearings.

John Roberts • 1. Perhaps most impressive nominee ever

before the Senate Judiciary committee – “buried the trophy.”

• 2. Could translate Virgil’s Aeneid in high school.

• 3. Shared a class with Yo Yo Ma.

• 4. Independently wealthy– worth about 5 million.

• 5. Has 2 snails and a ladybug named Dora for a pet.

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Federal and State Court Systems

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Which Cases Reach the Supreme Court?

• When two lower courts are in disagreement • When a lower court’s ruling conflicts with an

existing Supreme Court ruling • When a case has broad significance (as in

desegregation or abortion decisions)• When a state court has decided a substantial

federal question

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Which Cases Reach the Supreme Court? (cont.)

• When the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law

• When a federal court holds an act of Congress unconstitutional

• When the solicitor general is pressuring the Court to hear a case

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Cases Before the Court

• Granting Petitions for Review. Review is granted by a writ of certiorari. To issue a writ, a minimum of four justices must agree that the case should be heard by the Supreme Court (the “rule of four”).

• Case is placed on the docket. • Amicus Curiae briefs are filed.• Oral Argument before the court (30 min each

side)

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Deciding Cases

• Once the Court has decided to accept a case, both parties in the case will submit legal briefs and (usually) make oral arguments.

• If the Court is unanimous in the ruling, one justice will be assigned to write the opinion of the Court. If the justices are divided on the reasoning of the outcome, there will be a majority opinion and dissenting opinions.

• Different Terms to know:a) Per Curium – unsigned opinionb) Stare Decisis – “Let the decision stand”

Checking the Judiciary

• Jefferson

• Jackson

• FDR Court-Packing Scheme

• Congress --Constitutional Amendment

Impeachment / Judiciary Act of 1802

Ignored the Court