The Federal Judiciary The third branch. Trends: The Supreme Court functions mainly as an appellate...
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The Federal Judiciary The third branch. Trends: The Supreme Court functions mainly as an appellate court The judiciary has become increasingly powerful
Trends: The Supreme Court functions mainly as an appellate
court The judiciary has become increasingly powerful as a
policymaking body Decisions are constrained by the Constitution,
federal statutes, and precedents
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The Supreme Court 9 members Appointed by president; confirmed
by the Senate (simple majority) Life term No constitutional
requirements Is the only court created in and by the
Constitution
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Jurisdiction Original JurisdictionAppellate Jurisdiction Case
is heard for the first time In Supreme Court: State v. State State
v. Federal Federal v. State Diplomats Not very many cases are OJ
None in the last three terms Authority to Review cases that have
been heard in lower courts Tests whether the lower court acted in
accordance with the law Almost all cases fall into this
category
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Selecting and Deciding Judicial Review Established: Marbury v.
Madison, 1803 Precedent: A decision that sets the rule for future
cases Writ of certiorari: the Supreme Court decides to hear a case
of 8,000 -> 80 (1%) Most likely to hear a case requested by the
solicitor general Rule of 4 Cases are not selected to correct
errors of lower courts; they are selected to resolve legal issues
Inconsistency in lower courts
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Court Opinions: The opinion with which a majority of justices
agree is called: The opinion of the losing side is called:
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Appointed and Confirmed: John Roberts Antonin Scalia Anthony
Kennedy Clarence Thomas Ruth Bader Ginsberg Stephen Breyer Samuel
Alito Sonia Sotomayor Elena Kagen George W. Bush, 2005 Reagan, 1986
Reagan, 1988 George H.W. Bush, 1991 Clinton, 1993 Clinton, 1994
George W. Bush, 2006 Obama, 2009 Obama, 2010
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How they vote how they vote
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What are the politics of choosing? The politics of
nominations:The politics of confirmations: Presidents pick nominees
that: will help his partys electoral ambition (win future
elections) further policy goals and preferences fit a certain
demographic Gender, race, region, religion, etc. Confirmations are
more likely if the candidate is: Moderate Properly vetted The
Senate was consulted Senatorial courtesy Lower courts only
Confirmations are less likely if: Divided government Filibuster
Scandal
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And Public Opinion
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How are justices insulated from public opinion? Appointed, not
elected Serve for life terms Court sets own agenda (Certiorari:
Rule of 4) Salaries cannot be reduced Court proceedings are behind
closed doors
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Even so, why dont courts deviate too much from public opinion?
Confirmation process Can be checked by Congress Amendments (only
happened once) Rewrite laws Congress can create and destroy courts
Impeachment Can be checked by the Executive Reliance on executive
branch to enforce Clemency powers Legitimacy (Marbury v.
Madison)
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The Nature of Decisions Courts are restrained by 1.The
Constitution 2.Statutes 3.Administrative Laws Any decision they
make must be consistent with prior rulings, which reflects the
philosophy of stare decisis (let the decision stand)
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To what extent do justices adhere to precedent?
Restraint:Activism: Justices generally adhere to the language of
precedent and the legislature Policy issues should be decided by
elected lawmakers Justices interpret the Constitution, statutes,
and precedents based on contemporary meaning Policies should not be
upheld when core principles (liberty, equality, and
self-government) are threatened
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How far should justices go in substituting their opinion over
that of elected officials? Originalism TheoryLiving Constitution
Theory More conservative Constitution should be interpreted based
on when it was written What did the framers mean at the time?
Strict Constructionists More liberal Framers used broad language
intentionally, which makes the Constitution adapt over time How
does the Constitution protect basic liberties now? Loose
Constructionists
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Restraint? Activism? Originalism? Living? Marbury v. Madison
Brown v. BOE Roe v. Wade Schenk v. United States Dred Scott v.
Sanford Activism/Living Restraint/Originalism
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CJ: Earl Warren (The Warren Court) 1953-1969 Most liberal
(activist) Court ever: only 35% of decisions were considered
conservative Brown v. BOE 1954 Mapp v. Ohio 1961 Gideon v.
Wainwright 1963 Escobedo v. Illinois 1964 Miranda v. Arizona 1966
Terry v. Ohio 1968 Engle v. Vitale 1962 Loving v. Virginia 1967
Tinker v. Des Moines 1969
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CJ: Warren Burger (The Burger Court) 1969 1986 A Conservative
Shift: 55% of decisions were conservative US v. Nixon 1974 Bowers v
Hardwick 1986 INS v. Chadha 1983 Gregg v. Georgia 1976 California
Regents v. Bakke 1978 But wait: Roe v. Wade 1973
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CJ: Rehnquist (The Rehnquist Court) 1986 2006 55% of decisions
were conservative Romer v. Evans 1996 Bush v. Gore 2000 Gratz v.
Bollinger 2003 Grutter v. Bollinger 2003 Federalism, Equal Rights,
School Prayer
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CJ: Roberts (The Roberts Court) 2006 present First 5 years: 58%
Conservative 2010 2011: 65% Conservative Detainee Cases Citizens
United v. FEC 2010 Morse v. Frederick 2008
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On the docket this year:
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Issue: Whether a state violates the Equal Protection Clause by
amending its constitution to prohibit race- and sex-based
discrimination or preferential treatment in public-university
admissions decisions.
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Issue: Whether a legislative prayer practice violates the
Establishment Clause of the First Amendment.
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Issue: Whether the Massachusetts law which makes it a crime for
protestors come within thirty five feet or less from a reproductive
health care facility.
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Issue: Whether the EPA determined that its regulation of
greenhouse gas emissions from new motor vehicles triggered
permitting requirements under the Clean Air Act for stationary
sources that emit greenhouse gasses.
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Issue: Whether the Religious Freedom Restoration Act of 1993
(RFRA), which provides that the government shall not substantially
burden a persons exercise of religion allows a for-profit
corporation to deny its employees the health coverage of
contraceptives to which the employees are otherwise entitled by
federal law, based on the religious objections of the corporations
owners.