Judiciary
POSC 121
Braunwarth
Displacement of Political Conflict
“Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” (Alexis de Tocqueville, 1835)
- This is a primary source of judicial power
- This is particularly true for controversial issues and when a minority suffers at the hands of the majority
- Abortion, Civil Rights, Criminal Rights, etc.
Constitutionalism
- Founders wanted to make sure that no leader took on too much power
- Created a fundamental law that can’t be transgressed
- Constitution protects our popular sovereignty
- But there is no mechanism in the Constitution to ensure that it is followed
- This was determined through the decision of Marbury v. Madison
Marbury v. Madison, the roots of Judicial Review
- A minor Federalist judicial appointee, William Marbury (right)
- Sued the Jefferson’s Anti-Federalist Secretary of State James Madison for his appointment
- Chief Justice of the Supreme Court, Federalist James Marshall, is in a tough position.
- If he rules for Marbury he looks partisan and weak, especially if Jefferson ignores the ruling.
- If he rules for Madison, the court looks subservient to the executive branch.
- In a brilliant legal maneuver, Marshall declared the entire case to be “Unconstitutional” because Sect. 13 of the Judiciary Act of 1789 unconstitutionally expanded the Court’s scope of Original Jurisdiction
- Thus expanding the Court’s power of Judicial Review
Power of Judicial Review (Saffell article)
- Judicial Activism: When the courts use the power of Judicial Review to reshape laws
- Judicial Restraint: Interpreting the Constitution strictly and deferring to the elected branches when possible
- Some arguing for restraint, contend that justices should follow the “original intent” of the framers of the Constitution
- What’s the argument against original intent?
- That times have changed and those arguing for original intent want to turn back the clock
- Why does the Court occasionally need to act in an activist manner?
- They may be protecting unpopular groups
- Legislators may be beholden to the tyranny of the local majority
Justifying Countermajoritarian Power
- Shortly after the Supreme Court has made a controversial and widely unpopular decision on the rights of criminal suspects, a justice agrees to a television interview. The justice sets out to justify to the public the Court’s enormous power and lack of accountability.
- Write a script for the justice. How will the justice explain the Court’s countermajoritarian role? How will the justice justify the Court’s secrecy and lack of direct accountability?
Countermajoritarian Power
- The system is designed to ensure that justices do NOT answer to the majority, why?
- Job is to defend the Constitution, which protects all of us
- Should not be swayed by the passions and prejudices of the majority
- They have the expertise
- Were appointed and approved by elected officials
- Only way to protect the minority
Judicial Mechanics
- Many more cases are appealed to the Supreme Court than the court can possibly hear
- Decide to hear cases by “the rule of four”
- The federal Solicitor General can request that the court hear cases important to the executive branch
- Typically only hear cases that deal with fundamental constitutional principles and affect large numbers of people
- Supreme Court decisions establish “precedent” (stare decisis) for all future cases
Judicial Selection
- How are Federal Judges selected?
- By the President and approved by the Senate
- Important power because gives the President a chance to have an impact beyond his term of office
- They thus choose someone of similar ideology
- But judicial ideology may evolve later
- Appointments have become increasingly political
California Court System
- Similarly organized as the U.S. system
- Operates independently of the national system
- First level of trial courts are known as Superior Courts
- Vast majority of cases are decided by plea bargain.
- Only way to deal with the massive caseload
- Some concerned people get off too easy
- Others concerned innocent may admit guilt to lesser charge rather than chance a trial
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