Strict Constructionists vs. Activists
Strict constructionist approach: judges should only judge; confine themselves to applying those rules that are stated in or clearly implied by the language of the constitution.
The real way original intent: Generally look at original intent.
Activist approach: judges should discover the general principles underlying the constitution, amplify those principles, and apply them to cases.
The real way evolutionary: Marshall, et. al. say the death penalty is prohibited by 8th amendment. Yet the prohibition of the death penalty is a very specific, not general, aspect of the constitution. HENCE activists generally look toward evolutionary.
Scoleaa, tomas: original intent
Ginsberg, Souter, Bryer: liberal activist (along, perhaps, with Kennedy)
O’Conner, Stevens : swing
National Supremacy and Slavery: (founding – civil war)
Marshall was chief justice
Biggest issue was nation-state relationship
Period of jurisdictional expansions
General trend was national law was more powerful than state law
Marbury v. Madison (1803): established power of judicial review
Two types of jurisdiction:
Original Jurisdiction of supreme court: Ambassadors or states are parties of a suit
Ambassadors are no longer valid because we have treaties that say they are not accountable.
Judicary Act of 1789 says that in suits of writ of mandamus they should file in a federal court
The new justices file with supreme court to order the democratic republicans to deliver the commissions for federalists
McCulloch V. Maryland (1819): federal law is supreme over state law
Martin v. Hunter’s Lessee : More significant than McCulloch V. Maryland. Marbury was clearly a federal law.
Martin’s parents had fled to canada as Pro-British Sympathizers
Part of Treaty, then Articles of Confed, and then Constitution said "all prior debts will be honored"
In the meantime, Virginia passes a law that says any property of an absent Tory becomes property of the state, and may be sold
Canadian Tory dies, leaves land to son (Martin).
Son comes back, demands land from Hunter’s Lessee
Case was appealed form the virginia state supreme court to the US Supreme Court
US Supreme court decides that it was never a valid case of treason (we cannot say as a matter of action that the person is automatically a traitor, because there was no trial)
Thus supreme court orders Virginia State court to overturn itself.
Virginia State court says that United States Supreme Court says that it will not honor the decision
Martin appeals back to US Supreme Court
New trial: question is can US Supreme Court, being supreme over the constitution, order a state institution to do something
In contrast that State and Fed are separate and one can’t order each other around, as decided in Marbury v. Madison
Supreme court says US Federal Government can overrule all State Agencies
To avoid the previous problem with the courts, the US Supreme Court orders the case back to the Virginia trial court (so the Virginia Supreme Court can’t refuse to act again)
Trial court did it, but the county where the trial court was is very poor, thus couldn’t appeal
Gibbens V. Ogden: when there is a conflict between state law and federal law, federal law wins all the time.
Dred Scott v. Stanford: second law that is declared unconstitutional. Since Missouri Compromise of 1820 was no longer on the books, the Supreme court was safe from being challenged.
Taney’s supreme court ruled in Dred Scott that Blacks were not citizens
Supreme court decided that it could review decisions of state courts
Power of government to regulate commerce was declared constitutional
Government and the economy: (Civil War – New Deal)
Big issue: when is economy regulated by states, nation?
General trend was that 14th amendment protected private property and the corporation from unreasonable state action
Judicial activism was born as court set itself up as arbiter of what was permissible economically
"what can business do?"
Government and Political Liberty (New Deal – Present)
Rarely overturned a business-regulating law; instead protected personal liberties
At the outset of the new deal, most justices opposed welfare state
Since FDR couldn’t appoint any justices (they just wouldn’t die!) he decided to pack the court
Proposed legislation that would allow him to appoint one justice for each one over the age of 70 who refused to retire, up to 15
Would have been able to appoint six new justices, thus gaining majority
After FDR won big reelection, Justice Owen Roberts switched his opinion; thus packing was no longer necessary
Types of Courts, Confirmation
Supreme Court (via article III)
All other federal courts and their jurisdictions are the domain of congress. They have created:
Constitutional courts: one that exercises judicial powers granted by article III (thus its justices
Are immune from removal, and their salaries cannot go lower
Legislative courts: courts set up for some special purpose, i.e. Court of Military Appeals
Constitutional courts (article III Courts):
United States Supreme Court
District courts (total of 94)
Most original jurisdiction
Court of appeals (one in each of 11 circuits)
Selection of bench-sitter
President nominates; generally from his own party
While party does matter a little bit in judicial cases, that’s about it – things are too complicated
Heavy weight is given to the preferences of the senators from the state where a federal district judge is to serve.
Thus as a practical matter the president only nominates people recommended by that key senator.
Notes on appointments from Supplementals
Views of the process have changed as of late: "When he did not answer questions that former nominees David Souter and Anthony Kennedy did not answer, he was pilloried for his evasiveness. (Williams)
The process is very political
Federal-question cases: all cases arising under the Constitution, the Laws of the Unitied States, and Treaties
Diversity cases: cases involving citizens of different states
Some cases can be heard in either:
Suits over $50k can be in either state or federal
Robbing a federally insured bank is
both a state and federal crime
State law cases can sometimes be heard by US Supreme court
Federal cases, including those where you take issue with a federal regulatory body, can only be heard in US Court of Appeals, bankruptcy can only be heard in federal court
Writ of certiorari: if four judges agree to hear a case, a cert is issued and the case is placed on the docket.
Often granted when two or more federal circuit courts of appeal have decided the same issue in different ways
The highest court in a state has held federal or state law to be in violation of the Constitution or has upheld a state law against the claim that it is in violation of the Constitution.
Getting to Court
In forma pauperis: filing as a pauper, where the government supplies you with everything you need
Standing: who is entitled to bring a case before a court:
Must be actual controversey between real adversaries
Must show you have been harmed
Being a taxpayer does not entitle you to challenge the constitutionality of government actions
Mootness: it is too late for the court to do anything.
Class action lawsuits are becoming popular in part to get around mootness.
Ripeness test: It’s too early for the court to do anything.
Abortion law – you couldn’t sue before you became pregnant.
Political question: Better resolved by one or both of the other branches of government.
The best thing about class action lawsuits is that they prevent the issue of the case not applying when you finally get to the supreme court
Private citizens can
Ask the courts to order a federal official to do their job
Ask the courts to get the federal official to not go against the law
You can sue a government agent if it does something illegal
Sovereign immunity: you cannot sue the government without its consent.
i.e. congress must say you can sue the government in these matters
class action suits
a case brought into court by a person on behalf not only of him or herself but on all other persons in similar positions
The opportunity of winning profitable class action suits and their corresponding legal fees has triggered a proliferation of such cases in recent years
Supreme court ruled in 1974 that you can only have a monetary-beneficial class-action suit if each and every ascertainable member of the class is individually notified of the case
The Court Gets some Action
Brief: document submitted by both sides that explains case, summarizes previous decisions, and cites precedent
Lawyer gets to speak and be interviewed by justices
Solicitor general: government’s top trial lawyer, third highest guy in the DOJ
Personally approves every case the government presents to the supreme court
Amicus Curiae: "a friend of the court" briefs filed by someone other than the two parties involved
Both sides or the court must agree before briefs of this type can be filed
Justices . . .
Read the law journals
Meet every Friday to discuss the case
Have procedures that are closely monitored by the Chief Justice, thus giving him a great deal of power
Per curiam opinion: brief and unsigned
Opinion of the court: reflects the majority’s view
Concurring opinion: written by justices who voted with the majority but for different reasons
Dissenting opinion: written by justices who voted in the minority
Court authoring of Policy
Policy is made whenever the courts
reinterpret the law or the constitution in significant ways
Extend the reach of existing laws
Design remedies for problems that involve the court acting in administrative or legislative ways
120 federal laws have been declared unconstitutional
stare dictis: let the decision stand – a court decision should be settled in accordance with prescient
reason 1: law must have fixed meaning to be effective
reason 2: equal justice idea: similar cases should be decided in a similar manner
The degree to which the courts are willing to handle matters previously left to the legislature (such as the design of legislative districts) is another indicator of judicial power.
Types of remedies are the most powerful indicator:
Remedy: an order saying what must be done to right a wrong
Pro:federal courts must correct injustices when the other branches of federal government or states refuse to do so
Courts are institution of last resort
Con: justices rarely have experience in the areas in which they rule
Justices might be good lawyers, but poor administrators.
Justices are not elected; are immune to popular control
Increase in cases leads to increase in remidies
Congresses passing of vague laws opens up the way for judicial activism
Agencies given discretionary authority can create regulations that are very open to court challenges
Checks on Court Power
Someone has to enforce it
Court may not initiate action; someone must file a case
The only persons who are bound by court decisions are the parties involved in the case.
Court gets around this by class-action suits
Have to work with the statues as they exist.
make amendments; statutes; to reverse rulings
Public Opinion and its influences
1998-1999 AP American Government Notes
This material copyright Eric Jonas, 1999.
These notes have been taken from American Government, 7th edition, by Wilson and DiIulio, and from in-class lecture by Mr. Greg Sandmeyer at Timberline High School.