The Judiciary

The Dual Court System

 Why are federal judicial
appointments so contentious?
 Judicial Review (1803 Marbury v. Madison)
 A byproduct of Checks and Balances under the
Separation of Powers
 Would never happen in Unitary or Parliamentary
system.
 Two views on Judicial Review
Judicial Activist Judicial Restraint

Loose Constructionist Strict Constructionist

Use of moral/economic Use only the expressed/

philosophy to further implied powers to
cause interpret cases
*1930’s-40’s activists more likely to be conservative, but the reverse is true today. But don’t there is
always a correlation.

Activist Liberal

Restraint Conservative
 Marbury v. Madison (1803)
 Q: Does Marbury have a right to the commission?

 A: Yes. Marbury has a right to the commission.

 Q: Does the Supreme Court have the authority to

review acts of Congress and determine whether they
are unconstitutional and therefore void?

 A: Yes. The Supreme Court has the authority to review

acts of Congress and determine whether they are
unconstitutional and therefore void. It is emphatically
the duty of the Judicial Department to say what the law
is
 Marbury con’t
 Q: Can Congress expand the scope of the Supreme Court’s original
jurisdiction beyond what is specified in Article III of the Constitution?

 A: No. Congress cannot expand the scope of the Supreme Court’s

original jurisdiction beyond what is specified in Article III of the
Constitution. The Constitution states that “the Supreme Court shall
have original jurisdiction in all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be a
party. In all other cases, the Supreme Court shall have appellate
jurisdiction.”
https://www.youtube.com/watch?v=mWYFwl93uCM
The Supreme Court and Federal v.
States Rights
 McCulloch v. Maryland (1819)
 Dred Scott (1857)
 https://www.youtube.com/watch?v=YM7onFP9vUQ
Dred Scott Roger B. Taney
Courts,Gov’t, and the Economy
 Q: Should political rights be viewed the same as
property rights?

 14th Amendment no state shall “deprive any

person of life, liberty, or property without due
process of law.”

 Industrial age and westward expansion led to

explosion of business/labor cases. Many
dealing with regulation.
 The Issues
 Labor strikes/workers rights
 Antitrust laws (Sherman/Clayton)
 Child Labor
 Commerce (Gibbons v. Ogden 1824)
 Regulation of Railroads
 Obamacare? http://www.cbsnews.com/news/obamacare-case-divides-supreme-court/

Economic interest stopped by mid 1930’s.

(1937-74 SC did not overturn any law to regulate
business. Overturned 36 that violated personal
liberties). FDR and SC Court Packing?
 The Federal Court Structure
Constitutional Courts Legislative Courts

 Supreme Court  Military Court of

 District Courts Appeals
(MI=6th)  U.S. Claims Court
 Courts of Appeals  Courts of D.C.
 Territorial Courts
 Veterans Appeals
 U.S. Tax Court
Federal District Courts
 How to Become a Federal Judge
 Party background…aren’t they
nonpartisan? How could you tell?
 Ideology…also the same…opinions! Can’t
always predict.
 Senatorial Courtesy…Senioritis and the
blue slip (not for SC Justice).
 “Litmus Test”…activist or strict
constructionist? Big issue = abortion
http://www.youtube.com/watch?v=Tku61sKhPGo
 Federal Court Jurisdiction
 Crimes under statuses enacted by congress.
 Most cases involving federal laws or regulations Matters
involving interstate and international commerce, including
airline and railroad regulation.
 Cases involving securities and commodities regulation,
including takeover of publicly held corporations.
 International trade law matters.
 Patent, copyright, and other intellectual property issues.
 Cases involving: treaties, foreign states, and foreign nationals.
 State law disputes when "diversity of citizenship" exists.
 Bankruptcy matters.
 Disputes between states.
 Misdemeanors occurring on certain federal property.
 State Court Jurisdiction
 Crimes under state legislation.
 State constitutional issues or state laws or regulations.
 Family law issues.
 Real estate/property issues.
 Most private contract disputes (except those resolved under
bankruptcy law).
 Most issues involving the regulation of trades and professions.
 Most professional malpractice issues.
 Most issues involving the internal governance of business
associations such as partnerships and corporations.
 Most personal injury lawsuits.
 Most workers' injury claims.
 Probate and inheritance matters.
 Most traffic violations and registration of motor vehicles.
 State or Federal Courts
 Crimes punishable under both federal
and state law.
 Federal constitutional issues.
 Certain civil rights claims.
 "Class action" cases.
 Environmental regulations.
 Certain disputes involving federal law
 How to get to the Supreme Court
 Historically< 2% all cases get to SC
 Rule of Four…then issues
 Writ of Certiorari (Cert for short)
1. To decide conflicting federal appellate
court rulings
2. When a state SC has ruled a state or
federal law to be in violation of the “C”
And…
 In forma pauperis
 Gideon vs. Wainwright
(1963)
 Miscellaneous Court Lingo
 Fee shifting- Enables plaintiff to recoup $
from defendant.
 Plaintiff/Defendant- The “complainer” and
the one who is accused.
 Standing- Legal rationale for filing a suit.
 Sovereign immunity- can’t sue Gov’t w/o
their permission.
 Class-action- Case on behalf of effected
group.
 SC in Action Terms
Brief- arguments for the side represented
Amicus curiae- brief from interested party
Opinions:
1. per curiam- short and unsigned
2. majority- opinion of the court and legal
precedent (CJ will usually write or will assign)
3. concurring-agree with majority but for different
reason
4. dissenting- disagrees with majority. Not
binding
Wow! About 40% of SC decisions are unanimous!
 The Power to Make Policy
 Stare decisis- “let the decision stand”. The
establishment of legal precedent.
 Political question- let’s the Exec/Legis
branches decide i.e. apportionment
 Remedy- used to correct a “wrong” i.e.
affirmative action (’78 Bakke or Grutter/Gatz
v. Bollinger ’03…Go Blue!)
 Selective Incorporation- allows for partial
state recognition of the B of R. Federalism
slowed down “incorporation” because of pwr
given to states (9th, 10th, and 14th Amends)
 Selective Incorporation
 https://www.youtube.com/watch?v=kbwsF-A2sTg

 Rights and privileges of B of R have to be

“incorporated” individually thus…some of
your rights are ”Selectively” applied as
challenges come up.
 Barron v. Baltimore 1833 (property) B of R apply
only to Federal not State governments
 Gitlow v. NY (free speech) Reversal from Barron
in that states cannot deny 1st amendment to
individuals
 Is the USA Lawless?
Lawyers to citizen ratios:

USA 1:325
UK 1:970
Germany 1:1,200
Japan 1:8,333

No Way!
 How can the courts be checked?
 Presidential nomination
 Senate confirmation
 Impeachment
 Congress can adjust size of federal
judiciary e.g. FDR and “court-packing”
scheme in ’37.
 Amendment process
 Congress has “C” authority to determine
jurisdiction
 Cameras in the court? https://www.youtube.com/watch?v=LVQVsuT7d5Q (Kennedy
and Breyer) https://www.youtube.com/watch?v=F6gktBWhzc8 (Scalia)
 Significant Court Cases
 John Peter Zenger (1734)
First case in the colonies involving
freedom of the press (no 1st Amend yet)
 Marbury v. Madison (1803) (previous slides)
 McCulloch v. Maryland (1819) (congress
chapters/implied powers)

 Gibbons v. Ogden (1824) (cong chptrs/commerece

clause)

 Schenck v. U.S. (1919) Free Speech.

“clear and present danger”.
 Korematsu v. U.S. (1944) (internment of Japanese Am.)
 Gideon v. Wainwright (1963) appealed to SC as
pauper. Rights of accused, 6th Amend., legal
representation.
 Brown v. Board of Ed. Of Topeka (1954)
 Mapp v. Ohio (1962)
 Escabedo v. Illinois (1964) 6th Amend. Right to
free legal council.
 In re Gault (1966) Minors have right to confront
accuser.
 Mirandav. Arizona (1966)
 New York Times v. U.S. (1971) Freedom of
Press and Pentagon Papers
 Lemon v. Kurtzman (1971)
 U.S. v. Nixon (1974) Presidential power of executive
privilege is not absolute.
 Gregg v. Georgia (1976) Capital punishment is not
violation of 8th Amend. ban on cruel and unusual punishmt.
 Bakke v. Univ. of CA Board of Regents
(1978) First case dealing with Affirmative Action. Race
can be used as factor in college admissions.
 New Jersey v. TLO (1985) School officials do not
need search warrant or probable cause, only reasonable
suspicion to conduct a student search.
 U.S. v. Lopez (1990) Congress prohibition of guns
on school property is not covered by commerce clause.
 U.S. v. American Library Assoc. (2003)
Public Libraries using internet filters is not violation of 1st
Amend.
 Classwork Activity
 Examine the 40 cases and indicate the top
5 cases based on significance and give a
rationale for each (#1 is most significant).
The End!