The Judiciary

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

Rhenquist: conservative

Ginsberg, Souter, Bryer: liberal activist (along, perhaps, with Kennedy)

O’Conner, Stevens : swing

Judicial Evolution

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:

Appellate 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Ambassadors are no longer valid because we have treaties that say they are not accountable.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


    1. Marbury et. al. Are legally entitled to their commissions
    2. You can sue for a writ of mandamus
    3. Can the supreme court help marbury? NO!!

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

Senatorial courtesy

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.

Advisory opinion:

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

Court opinions:

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

Voting blocks:


Conservative/strict constructionist

Swing block


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

Judicial Activism

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.


Decide jurisdiction


decide makeup

make amendments; statutes; to reverse rulings

Public Opinion and its influences


Eric Jonas's 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.