Govt 2302 Paper

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HAPTER 12 The Judiciary Chapter Focus The purpose of this chapter is to describe the policy-making role of the federal judiciary, in particular that of the Supreme Court. To appreciate the significance of this role, students need basic knowledge about the history of the Supreme Court, the structure and procedures of the federal courts, the nature of controversy over the courts, and the restraints on judicial policy making. After reading and reviewing the material in this chapter, you should be able to do each of the following: 1. Discuss the meaning and significance of judicial review and its relationship to Marbury v.
Madison. 2. List and comment on the three eras of varying Supreme Court influences on national policy from the days of slavery to the present. 3. Describe the partisan influences on federal judicial appointments. 4. Describe how the nature of federalism affects the jurisdiction of federal and state courts. 5. Discuss the ways in which cases can get to the Supreme Court. 6. Describe the financial and non-financial obstacles of getting into federal court. 7. Explain how political scientists classify justices as liberal or conservative and why they do so. 8.
Enumerate four measures of judicial power and describe how judicial power can be restrained by Congress and by public opinion. 9. Develop arguments for and against an activist Supreme Court. 10. Explain the relationship between public and the courts. Study Outline I. Introduction A. Courts in the United States play a major role in policy making 1. Due to judicial review: right to declare acts and laws unconstitutional 2. Since 1789, Supreme Court has ruled over 100 laws unconstitutional 3. In Great Britain, no judicial review in American sense, but parliamentary supremacy B.
Controversy is over method of judicial review 1. Strict constructionist (conservative philosophy today) 2. Activist approach (liberal philosophy today) II. The Development of the Federal Courts A. Introduction 1. Founders did not expect a major policy role for the federal courts 2. Traditional view: judges find and apply existing law 3. Evolution of courts shaped by political, economic, and ideological forces B. National supremacy and slavery (1789–1865) 1. Marbury v. Madison—established doctrine of judicial review (see the “Marbury v.
Madison” box) 2. McCulloch v. Maryland: federal law declared supreme over state law 3. Dred Scott v. Sandford: blacks were not, and could not become, free 4. Interstate commerce clause is placed under the authority of federal law C. Government and the economy (1865–1937) 1. Dominant issue of the period: whether the economy could be regulated by state and federal governments 2. Private property held to be protected by the Fourteenth Amendment 3. Courts unsure of how to draw line between “reasonable” and “unreasonable” regulation 4.
The Court interpreted the Fourteenth and Fifteenth Amendments narrowly as applied to blacks D. The protection of political liberty and economic regulation (1937–present) 1. Supreme Court gave regulatory powers to legislatures 2. Voided congressional acts that violate personal liberties 3. Court-packing plan shifts interpretation III. The Structure of the Federal Courts A. Only federal court mandated by Constitution is Supreme Court 1. Congress has created constitutional courts—district Courts (94), courts of appeals (12), plus other specialized courts (e. . , Court of International Trade) 2. Legislative courts—specialized purpose, fixed office terms for judges (e. g. , Court of Military Appeals and other territorial courts) B. Recent court nominations 1. Bush administration nominees 2. Filibustering by Senate democrats C. Supreme Court appointments are partisan 1. Nominated by president, confirmed by Senate (only five rejected during the twentieth century) 2. Presidents cannot be sure how a judge will behave after appointment 3. Presidents can tilt Court ideologically D. Lower federal courts 1. Senatorial courtesy” checks presidential control in district court nominations 2. Comparison of Carter and Reagan appointments: number of women and blacks 3. Democratic and Republican judges differ in voting, but ideology usually does not influence decisions IV. The Jurisdiction of the Federal Courts (see the “Jurisdiction of the Federal Courts” box) A. Dual court system 1. Federal jurisdiction: Article III and the Eleventh Amendment—involve “federal question” cases, diversity of citizenship cases 2. Federal District Court handles federal criminal laws 3.
Appeal from a federal regulatory agency goes to U. S. Court of Appeal 4. Only Supreme Court handles disputes between two state governments 5. Vast majority of all federal cases begin in district courts 6. Gideon case illustrates how lower court’s appeal can be influential B. Appeals to the Supreme Court 1. Certiorari—main route involving substantial federal questions 2. Courts of appeal usually last word V. Getting to Court A. Deterrents 1. The Court rejects 95 percent of applications for certiorari 2. High costs of appeal (pauper writs) B. Fee shifting . Each party must pay cost of lawsuit 2. Fee shifting allows plaintiff to collect costs from defendant 3. Flood of Section 1983 lawsuits C. Standing 1. Must be controversy between adversaries 2. Personal harm must be demonstrated 3. Being taxpayer not entitlement for suit 4. Sovereign immunity, but government can waive D. Class-action suits 1. Brought on behalf of all similarly situated—Brown v. Board of Education 2. Financial incentives to bring suit; Congress not addressing issues; profitable for lawyers 3. Need to notify all members of the class since 1974 VI.
The Supreme Court in Action A. Oral arguments by lawyers 1. Questions by justices 2. Role of solicitor general 3. Amicus curiae briefs influence as well as legal periodicals B. Conference procedures 1. Role of chief justice 2. Selection of opinion writer 3. Opinions—per curiam, unanimous, majority, concurring, or dissenting C. Voting behavior 1. Blocs on Court are predictable 2. Three blocs: liberal, conservative, and swing VII. The Power of the Courts A. The power to make policy 1. By interpretation 2. Importance of stare decisis, or precedent, but court will change mind 3.
Court’s willingness to deal with “political questions” 4. Judicial “remedies”—may affect thousands or even millions of people B. Views of judicial activism 1. Courts are last resort and correct injustices 2. Courts lack expertise in particular 3. Court is not accountable to the people; judges not elected C. The causes of activism 1. U. S. has more lawyers, but a symptom not a cause 2. American adversary culture 3. Easier for people to get into court 4. Vague congressional language requires judicial interpretation 5. Reviewing regulatory agency decisions 6.
Belief of many judges/law professors that courts should make policy VIII. Checks on Judicial Power A. Court decisions can be resisted, since courts cannot enforce B. Congress and the courts 1. Alter the composition of the judiciary 2. Confirmation and impeachment proceedings 3. Changing the number of judges 4. Revising legislation declared unconstitutional 5. Altering jurisdiction of the courts 6. Constitutional amendment C. Public opinion and the courts 1. Opinion can both restrain and energize the courts 2. Supreme Court most powerful when parties have been weak or divided 3.
Opinion may object to decisions but not to court as institution 4. Opinion of courts vary with support of government as a whole Key Terms Match Match the following terms and descriptions. Set 1 |1. _____ Describes when a president has attempted to appoint his |a. activist | |type of judges to the Court in order to secure a majority. |b. amicus curiae brief | |2. _____ A means by which one who has an interest in a case, but |c. briefs | |is not a litigant, can present views. d. class-action suit | |3. _____ A means by which one who has been injured can bring |e. recess appointment | |action on behalf of all similarly situated. |f. constitutional courts | |4. _____ The power of the courts to determine the |g. courts of appeal | |constitutionality of legislative and executive acts. |h. dissenting opinion | |5. ____ Litigation in which a citizen of one state sues a |i. Dred Scott | |citizen of another state and the amount of money in dispute is |j. diversity case | |more than $50,000. |k. Federalist No. 78 | |6. _____
A court established under Article III of the |l. ”packing the court” | |Constitution. |m. in forma pauperis | |7. _____ An approach to judicial review which holds that judges |n. udicial review | |should discover the general principles underlying the |o. American rule | |Constitution. |p. Marbury v. Madison | | |q. McCulloch v. Maryland | | | | | | | |8. ____ Correlates with the thoughts of the Founding Fathers | | |that the courts would play a relatively neutral-passive role in | | |public affairs. | | |9. _____ Intermediate appellate courts of the federal judiciary | | |which have been classified “constitutional courts” by Congress. | | |10. ____ Describes how in America each party to a lawsuit must | | |pay its own way. | | |11. _____ A petition filed with the U. S. Supreme Court by a | | |pauper. | | |12. _____ Considered one of the most disastrous judicial opinions| | |ever issued—declaring the Missouri Compromise unconstitutional. | |
13. _____ Legal documents submitted by lawyers which set forth | | |the facts of a case. | | |14. _____ A decision of the Supreme Court which interpreted the | | |Constitution to give the Supreme Court the power to declare an | | |act of Congress unconstitutional. | |15. _____ A decision of the Supreme Court which held that the | | |power of the federal government flows from the people and that | | |federal law is supreme over state law. | | |16. _____ A judicial appointment made by a president while the | | |Congress is not in session. | | |17. ____ This is an opinion of one or more justices of the | | |Supreme Court on the losing side. | | Set 2 |1. _____ Known as the school desegregation case. |a. Opinion of the Court | |2. _____ Set the precedent that all accused persons in state as |b. per curiam opinion | |well as federal criminal trials be supplied with a lawyer, free if |c. Gideon case | |necessary. d. remedy | |3. _____
A landmark case dealing with reverse discrimination. |e. senatorial courtesy | |4. _____ A tradition under which the Senate will defer to the |f. Brown v. Board of Education | |judgment of a senator of the president’s party when determining the|g. sovereign immunity | |suitability of candidates for federal judgeships from the senator’s|h. Bakke case | |state. i. stare decisis | |5. _____ An example of a legislative court where terms are fixed |j. strict constructionism | |and justices can be removed or have their salaries reduced. |k. voting blocs | |6. _____ The rule of precedent. |l. Court of Military Appeals | |7. _____ Groups of justices on the Supreme Court who tend to take | | |consistent positions on issues. | |8. _____ This is a judicial order setting forth what must be done | | |to correct a situation a judge believes to be wrong. | | |9. _____ An approach to judicial review which holds that judges | | |should confine themselves to applying those rules that are stated | | |in or clearly implied by the language of the Constitution. | |10. _____ The doctrine that a citizen cannot sue the government | | |without its consent. | | |11. _____ This is a brief, unsigned opinion of the Supreme Court. | | |12. _____ This is the written opinion of the Supreme Court’s | | |majority. | |
Did You Think That . . . ? A number of misconceptions are listed below. You should be able to refute each statement in the space provided, referring to information or argumentation contained in this chapter. Sample answers appear at the end of the Study Guide. 1. “The Framers expected the Supreme Court to play the large role that it subsequently has played. ”

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