U.S.
GOVERNMENT & POLITICS, SPRING 2011
THE SUPREME
COURT: SELECTION AND JUDGMENTS
OSY
chapter 9, Woll 65/OSY 444-447 (Federalist #78),Woll
66 (Marbury v. Madison)
Wednesday,
March 16
Key terms/info to know from chapter 9: judicial review, types of cases heard by the
Supreme Court (box, 247), Judiciary Act of 1789, Marbury v. Madison, John Marshall, jurisdiction and original,
appellate jurisdiction, criminal law vs. civil law; chart of federal court system,
p. 252; legislative courts; federal district courts, U.S. Courts of Appeal;
precedent/stare decisis, senatorial courtesy, criteria for Supreme Court
nominations, steps in confirmation process, Rule of Four and writs of certiorari, role of clerks, process of
the Supreme Court hearing cases (chart p. 264), why the Court chooses to hear/not
to hear cases, amicus curiae brief, solicitor general, oral arguments, writing
opinions, judicial restraint/strict constructionism
versus judicial activism, judicial decision making models – behavioral traits,
attitudinal model, strategic model, public opinion’s influence; court rulings
as policy making; judicial implementation and difficulties in implementing
judicial rulings
1. Structure of the U.S. judicial
system (charts in OSY 252 and 264)
The key point here is that federalism extends to the U.S. judicial
system as well. Cases in the state court
system can cross over into the federal system only at the top – from the highest state court to the U.S. Supreme
Court – if some constitutional principle
or federal question is involved (some examples: cases involving capital
punishment, the rights of accused persons)
2. The
role of the judiciary in the constitutional system: Hamilton, Federalist #78 (Woll
65)
#78 is Hamilton’s classic defense of
the structure and power of the “least dangerous” judicial branch under the
Constitution, justifying the importance of judges and justices serving life
terms, as well as the independence of the judicial branch in exercising the
power of judicial review.
Questions: Why is
the Supreme Court considered the weakest of the three branches? Why are lifetime terms considered a good
idea? What does it mean for justices to
exercise “will” instead of “judgment” (Woll
374/OSY 446)? What congressional powers
keep the Supreme Court in check?
3. Marbury v. Madison
(1803) and the development of Supreme Court authority (Woll
66)
The
critical ruling in Marbury v. Madison by Chief Justice John
Marshall asserts the authority of judicial review, which is not specifically
stated in Article III of the Constitution.
This case is essential in establishing significant political power for
the Court early in its history.
Questions:
what is the precise legal issue at the core of this case? Why is this case so important to the
practical workings of separation of powers?
4. Selection process for Supreme Court justices
and other U.S. judges
What
characteristics and qualities do the President/Senate look for? Why has the Senate confirmation process
become more partisan in recent years? Does a partisan nomination process mean that
the work of the Supreme Court and lower federal courts also will become more partisan? Does
“advice and consent” mean that the Senate should give an up-or-down vote to all
judicial nominees?
(more #4) For
lower courts (US District Court), senatorial courtesy still pertains – the
senior senator of the president’s party from a state with a court vacancy
suggests the names of nominees to the president. Senatorial
courtesy is NOT used for Supreme Court nominations.
Why
does senatorial courtesy exist at all?
5A. Criteria for deciding cases on the
Supreme Court
The Supreme Court has discretion – essentially, using the
Rule of Four it takes only the cases on which it wishes to hear arguments and
issue a ruling. Today’s Supreme Court
hears about 80 cases per year, out of the nearly 8,000 that are appealed to the
court.
On the cases the Court chooses to
hear, several criteria are used to reach decisions:
♦
JUDICIAL REVIEW is the court’s major power.
The Constitution does not specifically grant the Supreme Court the power
to review acts of other branches of government and the states (or to declare
them unconstitutional), but the idea is clearly implied in the Federalist Papers and other writings
about the Supreme Court. This power was
asserted in the case Marbury v. Madison
(1803) by Chief Justice John Marshall and has been assumed ever since.
♦
PRECEDENT (stare decisis) means using previous decisions to justify the
ruling in question. Using precedents
establishes legitimacy and consistency in rulings. Of course, decisions in cases are often important
because existing precedents are NOT used or are specifically overruled.
♦
STATUTORY INTERPRETATION simply means that the Court interprets what the law in
question means. Courts can use records
from Congress (or any legislative body that passed the law in question), in
order to understand its intent; presidential signing statements are a new,
controversial source for understanding intent.
Judges/justices also use their own judgment and expertise to ascertain
meaning. Statutory interpretation MAY
involve questions of constitutionality, but it does not have to and often does
not (laws are sometimes vaguely worded, they can conflict with other laws, and
it’s just not always clear what a legislative body intended simply by reading
the laws it passes).
♦
The models of
judicial decision making (OSY 269-270) represent more modern efforts by
political scientists to understand why the Court does what it does, moving the
analysis of precedents and legal interpretation into the background. These models focus on the justices themselves rather than the legal issues at stake in
the cases: characteristics of the
justices, the attitudinal model, the strategic model, the influence of public
opinion. Regarding public opinion (OSY
269), justices do not live in a vacuum sealed off from the rest of American
society. But it’s safe to say that there
is no general rule that justices either follow or lead public opinion when
deciding cases; there are probably more examples of decisions that are
consistent with current U.S. public opinion on the issues in question.
5B. Deciding a case, interpreting the
Constitution (simulation)
For
Friday we do two things:
1)
read several selections in Woll (5, 67, 70, 71) that
discuss how justices make decisions and how the Constitution should be
interpreted; and 2) examine one Supreme Court case (Friday handout is distributed
today for this reason; click here to get Friday
handout), reaching our own decision and discussing the legal issues and the
criteria for making decisions along the way.