Chap16

11
Chapter 16Chapter 16
The JudiciaryThe Judiciary

22Copyright © 2013 CengageCopyright © 2013 Cengage
 WHO GOVERNS?WHO GOVERNS?
1.1. Why should federal judges serve forWhy should federal judges serve for
life?life?
 TO WHAT ENDS?TO WHAT ENDS?
1.1. Why should federal courts be able toWhy should federal courts be able to
declare laws unconstitutional?declare laws unconstitutional?
2.2. Should federal judges only interpretShould federal judges only interpret
existing laws or should they be able toexisting laws or should they be able to
create new laws?create new laws?

44
JJudicial Reviewudicial Review
 Defined: the power of the courts toDefined: the power of the courts to
declare laws unconstitutionaldeclare laws unconstitutional
 Over 160 federal laws have beenOver 160 federal laws have been
declared unconstitutionaldeclared unconstitutional
 The federal courts’ chief weapon inThe federal courts’ chief weapon in
the American government system ofthe American government system of
checks and balanceschecks and balances
Copyright © 2013 CengageCopyright © 2013 Cengage

55
Two Approaches to Judicial ReviewTwo Approaches to Judicial Review
 Judicial Restraint ApproachJudicial Restraint Approach – judges– judges
should decide cases strictly on the basis ofshould decide cases strictly on the basis of
the language of the Constitutionthe language of the Constitution
 Activist Approach –Activist Approach – judges shouldjudges should
discern the general principles underlyingdiscern the general principles underlying
the Constitution and apply them tothe Constitution and apply them to
modern circumstancesmodern circumstances

Note: Omitted is John Rutledge, who served for only a few
months in 1795 and who was not confirmed by the Senate.

77
The Development of the FederalThe Development of the Federal
CourtsCourts
 The Founders’ ViewThe Founders’ View
• Did not expect the federal courts to playDid not expect the federal courts to play
a large role in public policy makinga large role in public policy making
• Hamilton’s thoughts inHamilton’s thoughts in FederalistFederalist No. 78No. 78

88
CourtsCourts
 National SupremacyNational Supremacy
• Chief Justice John MarshallChief Justice John Marshall
• Marbury v. MadisonMarbury v. Madison (1803)(1803)
• McCulloch v. MarylandMcCulloch v. Maryland (1819)(1819)

99
CourtsCourts
 SlaverySlavery
• President Jackson’s appointment of ChiefPresident Jackson’s appointment of Chief
Justice Roger B. TaneyJustice Roger B. Taney
• TheThe Dred ScottDred Scott case (1857)case (1857)

1010
CourtsCourts
 Government and the EconomyGovernment and the Economy
• 1860’s–1930’s: When can the economy1860’s–1930’s: When can the economy
be regulated by the states and when bybe regulated by the states and when by
the national government?the national government?
• Private property and the 14Private property and the 14thth
AmendmentAmendment
• 1414thth
and 15and 15thth
Amendments and the effectAmendments and the effect
on African-Americanson African-Americans

1212
CourtsCourts
 Government and Political LibertyGovernment and Political Liberty
• Supreme Court decisionsSupreme Court decisions
• FDR’s “Court Packing Scheme”FDR’s “Court Packing Scheme”
• The Court’s changing compositionThe Court’s changing composition
• Chief Justice Earl WarrenChief Justice Earl Warren

1313
Figure 16.1 Economics and Civil Liberties Laws Overturned by theFigure 16.1 Economics and Civil Liberties Laws Overturned by the
U.S. Supreme Court, by Decade, 1900–2006U.S. Supreme Court, by Decade, 1900–2006
Note: Civil liberties category does not include laws supportive of civil liberties. Laws include
federal, state, and local.
Source: Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2007–2008,
5th ed., p. 302 (Washington, D.C.: CQ Press, 2008). Reprinted by permission of CQ Press; a
division of Congressional Quarterly, Inc.

1414
CourtsCourts
 The Revival of State SovereigntyThe Revival of State Sovereignty
• Supreme Court’s movements since theSupreme Court’s movements since the
early 1990’searly 1990’s
• Supreme Court hintsSupreme Court hints
• Supreme Court’s rendezvous with theSupreme Court’s rendezvous with the
new health care plan of 2010new health care plan of 2010

1515
The Structure of the Federal CourtsThe Structure of the Federal Courts
 Lower Federal CourtsLower Federal Courts
• Constitutional CourtsConstitutional Courts
 District courtsDistrict courts
 Courts of appealCourts of appeal
• Legislative CourtLegislative Court
 Court of Military Appeals & territorial courtsCourt of Military Appeals & territorial courts

1616
Map 16.1 U.S. District and Appellate CourtsMap 16.1 U.S. District and Appellate Courts
Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in
the third; Guam and the Northern Mariana Islands are in the ninth. The Court of Appeals for the Federal
Circuit, located in Washington, D.C., is a Title 3 court that hears appeals regarding patents, trademarks,
international trade, government contracts, and from civil servants who claim they were unjustly
discharged.
Source: Administrative Office of the United States Courts (January 1983).

1717
The Structure of the Federal CourtsThe Structure of the Federal Courts
 Selecting JudgesSelecting Judges
• Party backgroundParty background
• Judicial selection surprisesJudicial selection surprises
• Federal judge characteristicsFederal judge characteristics
• Senatorial courtesySenatorial courtesy
• The “Litmus Test”The “Litmus Test”

Louis Brandeis, creator of the “Brandeis
Brief” that developed court cases based on
economic and social more than legal
arguments, became the first Jewish
Supreme Court justice. He served in the
Court from 1916 until 1939.
Topham/The Image Works

1919
Figure 16.2 FemaleFigure 16.2 Female
and Minority Judicialand Minority Judicial
Appointments, 1963–Appointments, 1963–
20042004
Source: Updated from Harold W. Stanley and Richard G.
Niemi, Vital Statistics on American Politics, 2005–2006
(Washington, D.C.: Congressional Quarterly, 2006), Table
7.5.

2020
Figure 16.3 Confirmation Rates for Nominees to the U.S.Figure 16.3 Confirmation Rates for Nominees to the U.S.
Court of Appeals (1947–2005)Court of Appeals (1947–2005)
Source: Sarah A. Binder, “The Consequences of Polarization: Congress and the Courts,” in David Brady
and Pietro Nivola, eds., Red and Blue Nation? (Vol. 2) Consequences and Correction of America’s Polarized
Politics (figure 3.3, p. 116). Brookings Institution Press. Reprinted by permission of the author.

2121
The Jurisdiction of the FederalThe Jurisdiction of the Federal
CourtsCourts
 Federal-question cases –Federal-question cases – CasesCases
concerning the Constitution, federalconcerning the Constitution, federal
laws, or treatieslaws, or treaties
 Diversity cases –Diversity cases – Cases involvingCases involving
citizens of different states who cancitizens of different states who can
bring suit in federal courtsbring suit in federal courts
 Writ of certiorari –Writ of certiorari – An order by aAn order by a
higher court directing a lower courthigher court directing a lower court
to send up a case for review.to send up a case for review.

Sonia Sotomayor answers questions before the Senate
committee considering her nomination to be a Supreme
Court justice.
KAREN BLEIER/AFP/Getty Images

2323
Figure 16.4 The Jurisdiction of the FederalFigure 16.4 The Jurisdiction of the Federal
CourtsCourts

Clarence Earl Gideon studied law books while in prison so that he
could write an appeal to the Supreme Court. His handwritten appeal
asked that his conviction be set aside because he had not been
provided with an attorney. His appeal was granted.
Flip Schulke

2525
Getting to CourtGetting to Court
 In forma pauperisIn forma pauperis
 Fee ShiftingFee Shifting
 StandingStanding
 Class Action SuitsClass Action Suits
Linda Brown was refused admission to a white
elementary school in Topeka, Kansas. On her behalf,
the NAACP brought a class-action suit that resulted in
the 1954 landmark Supreme Court decision Brown v.
Board of Education, p. 455.
Carl Iwasaki/Time Life Pictures/Getty Images

2626
Table 16.2 “Supreme Court Justices in Order ofTable 16.2 “Supreme Court Justices in Order of
Seniority,” 2011Seniority,” 2011

2727
The Supreme Court in ActionThe Supreme Court in Action
 BriefBrief
 Amicus curiaeAmicus curiae
 Per curiamPer curiam opinionopinion
 Opinion of the courtOpinion of the court
 Concurring opinionConcurring opinion
 Dissenting opinionDissenting opinion

2828
The U.S. Supreme Court Justices in 2010. Front row: Justices
Clarence Thomas and Antonin Scalia, Chief Justice John Roberts,
Justices Anthony Kennedy and Ruth Bader Ginsburg; second row:
Justices Sonia Sotomayor, Samuel Alito, and Elena Kagan.
TIM SLOAN/AFP/Getty Images

2929
The Power of the Federal CourtsThe Power of the Federal Courts
 The Power to MakeThe Power to Make
PolicyPolicy
• Stare decisisStare decisis
• Political questionPolitical question
• RemedyRemedy
 Views of JudicialViews of Judicial
ActivismActivism
 Legislation and theLegislation and the
CourtsCourts
The activism of federal courts
is exemplified by the sweeping
orders they have issued to
correct such problems as
overcrowded prisons, p. 458.
Alex Webb/Magnum Photos

3030
Figure 16.5 Patterns of Public Confidence in theFigure 16.5 Patterns of Public Confidence in the
Court, 1974–2006Court, 1974–2006
Source: The Gallup Poll.

3131
Checks on Judicial PowerChecks on Judicial Power
 Congress and the CourtsCongress and the Courts
• ConfirmationsConfirmations
• ImpeachmentImpeachment
• Number of judgesNumber of judges
• JurisdictionJurisdiction
 Public Opinion and thePublic Opinion and the
CourtsCourts
Thurgood Marshall became
the first black Supreme Court
justice. As chief counsel for
the NAACP, Marshall argued
the 1954 Brown v. Board of
Education case in front of the
Supreme Court. He was
appointed to the Court in
1967 and served until 1991,
p. 463.
Bettmann/Corbis

3232
M E M O R A N D U MM E M O R A N D U M
To:To: Senator Ann GilbertSenator Ann Gilbert
From:From: Amy Wilson, legislative assistantAmy Wilson, legislative assistant
The Supreme Court has held that the attorney general cannotThe Supreme Court has held that the attorney general cannot
use his authority over federally controlled drugs to blockuse his authority over federally controlled drugs to block
the implementation of the Oregon “Death With Dignity”the implementation of the Oregon “Death With Dignity”
law. Now some of your colleagues want to enact a federallaw. Now some of your colleagues want to enact a federal
equivalent of that law that would allow physicians toequivalent of that law that would allow physicians to
prescribe deadly drugs to patients who request them.prescribe deadly drugs to patients who request them.
WHAT WOULD YOU DO?WHAT WOULD YOU DO?

3333
Arguments for:Arguments for:
1. The law respects the people’s rights to choose the time and1. The law respects the people’s rights to choose the time and
place of their own death.place of their own death.
2. It is already permissible to post “Do Not Resuscitate”2. It is already permissible to post “Do Not Resuscitate”
orders on the charts of terminally ill patients.orders on the charts of terminally ill patients.
3. Physicians can be held to high standards in implementing3. Physicians can be held to high standards in implementing
the law.the law.

3434
Arguments against:Arguments against:
1. The law will corrupt the role of doctors as many think has1. The law will corrupt the role of doctors as many think has
happened in Holland, where a similar law has led somehappened in Holland, where a similar law has led some
physicians to kill patients prematurely or withoutphysicians to kill patients prematurely or without
justification.justification.
2. Such a law will lead some physicians to neglect or ignore2. Such a law will lead some physicians to neglect or ignore
the desires of the patient.the desires of the patient.
3. This law will undermine the more important goal of helping3. This law will undermine the more important goal of helping
patients overcome pain and depression.patients overcome pain and depression.

3535
Your decision:Your decision:
Support the law?Support the law?
Oppose the law?Oppose the law?

Chap16

Recomendados

Recomendados

Mais conteúdo relacionado

Mais procurados

Mais procurados (19)

Semelhante a Chap16

Semelhante a Chap16 (15)

Mais de shoetzlein

Mais de shoetzlein (20)

Último

Último (20)

Chap16

Notas do Editor