The Courts

21 November 2011

Review of the Legislative Process

• Standing Committee (exist from one Congress to the next)• Fixed jurisdiction and stable membership =specialization• Bills are assigned to committees on the basis of subject matter• Committee’s jurisdiction usually parallel those of the major

departments or agencies in the executive branch.• Each committee is unique• Each committee’s hierarchy is based on seniority

Why have committees?Theories of Committee Formation

• Informational Theory– Addresses the need for expertise

• Distributive Theory– Satisfies members personal goals

The Legislative Process

• A bill is introduced by a member (only a member). Although bills are introduced only by members, anyone may draft them. Executive agencies and lobby groups often prepare bills for introduction to friendly legislators.

• The Speaker assigns the bill to a committee (In the House). In the Senate, the majority leader assigns the bill to the appropriate standing committee

The Courts—The Third Branch

• Powerful, but not democratic• Supreme Court has nine unelected judges appointed for life and

are independent from one another• Republican candidate Rick Perry devoted a chapter of his book,

“Fed Up!” to rant about the high court: “Nine Unelected Judges Tell Us How to Live.”

• Responsive? • Accountable?

The Structure of the Federal Judiciary

• Only the Supreme Court is explicitly mentioned in the Constitution (Article III).

• Nature of the judiciary beyond the Supreme Court deferred to Congress.

• Judiciary Act of 1789 - created the federal judiciary.

Power of the Supreme Court

• Originally intended to interpret the constitution• Principal of Judicial Review

– Invoked in Marbury vs. Madison (1803)– Allows judges appointed for life the authority to negate laws

passed by elected representatives. • This gives the court a great deal of power which was not made

explicit under the Constitution. • Now that the Courts have the power, how can it be constrained?

The Supreme Court

• The Supreme Court is the court of final appeal. • Under its appellate jurisdiction, the Court may hear cases

appealed from the lower courts or directly from the highest state courts when an important constitutional question is in dispute.

• Decision on which cases to accept, referred to as a writ of certiorari, is based on the Rule of Four.

• Number of certs granted by Supreme Court has fallen in recent decades

Limitations on power

• Courts are reactive (can only hear cases brought before them)• Limited by the ability of Congress and the president to write new

laws (or constitutional amendments)• Lack of enforcement• Public opinion

Deciding Cases

• Do judges interpret laws or make policy?• English Common law and the principle of stare decisis, “let the

decision stand” • Judicial restraint vs. judicial activism

Bush v. Gore (2000)

• Supreme Court decides the 2000 Presidential Election• By a vote of 7-2, the Court held that the Florida Supreme Court's

scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature

• Equal Protection of the laws (14th Amendment):• The state-wide standard (that a "legal vote" is one in which there

is a 'clear indication of the intent of the voter’.• No guarantee that each county would count the votes the same

way.

Approval of the SC by Party

Citizens United v. Federal Elections Commission (2010)

•  A landmark decision that the First Amendment prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions.

•  The 5–4 decision originated in a dispute over whether the non-profit corporation Citizens United could air a film critical of Hillary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton's image, in apparent violation of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain–Feingold Act

• The lower court decision had upheld provisions of the 2002 act, which prevented the film Hillary: The Movie from being shown on television within 30 days of 2008 Democratic primaries.

• The Supreme Court reversed the lower court, striking down those provisions of the McCain–Feingold Act that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting “electioneering communications

Checks on the Judiciary

• Executive Checks– Appointments

• Legislative Checks– Appropriation of funds– Constitutional amendments– Amending laws to overturn court’s rulings

• Public Opinion– Influence judicial opinions– enforcement

• The Court– stare decisis– Judicial restraint

Public Opinion about the SC

Source: Washington Post

Civil Liberties

• Civil liberties are Constitution’s protections from government power. • Freedom of speech, religion and the right to privacy are examples. • Typically violations of these liberties occur when some government

agency, at any level, oversteps its authority.

Who protects civil liberties?

• Does the constitution guarantee certain absolute civil liberties?• Truth is that interpretations of these freedoms constantly change.• Question of how to balance individual liberties with societal rights

Cases Involving Civil Liberties

• Free Speech, Schenck v. United States (1919) – clear and present danger

• Freedom of Press, New York Times v. Sullivan (1964) – Libel violates 1st Amendment

• Obscenity, Roth v. United States (1957)– Court attempts to define obscenity

• Establishment Clause, Lemon v. Kurtzman (1971)– Three part test for judging constitutionality of division between

church and state• Gun Control, United States v. Miller (1939)

– 2nd Amendment does not provide for absolute guarantee• Right to Privacy, Roe v. Wade (1973)

– Landmark case on abortion

The Patriot Act – A Threat to Civil Liberties?

• Change in protections from unreasonable search and seizure• Detention of non-citizens, immigrants• Racial profiling