The Judiciary Federalist Paper 78

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The Judiciary

Federalist Paper 78

  • Hamilton argues that an independent judicial branch is essential to the protection of liberty.
  • He implies that the Supreme Court has the power of judicial review (the power to overturn an executive action or law passed by Congress as unconstitutional).

Mode/Method of appointing judges-Checks & Balances

  • Federalist #76, #77 discussed Executive Power to appoint, Congress to ratify, #78 presumes same
  • Would President pressure Senate to support nominee? NO-Senate virtue
  • Would Senate have undue influence on President over appointments? NO-Public scrutiny
  • Structure of the Federal Courts
  • - Constitutional Courts (lifetime tenure)
  • District Courts(94): the entry point for most litigation in federal courts, trial courts.
  • Courts of Appeal (13): review all final decisions of district courts.
  • Supreme Court: the final court of appeal. Sets its own agenda.
    • Legislative Court
      • Court of Military
      • Appeals &
      • territorial courts

Map 16.1 U.S. District and Appellate Courts

  • Copyright © 2013 Cengage
  • Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth. The Court of Appeals for the Federal Circuit, located in Washington, D.C., is a Title 3 court that hears appeals regarding patents, trademarks, international trade, government contracts, and from civil servants who claim they were unjustly discharged.
  • Source: Administrative Office of the United States Courts (January 1983).

The Development of the Federal Courts

  • Slavery
    • President Jackson’s appointment of Chief Justice Roger B. Taney-succeeds Marshall 1836
    • The Dred Scott case (1857): Said African Americans were not citizens, Missouri Compromise prohibiting slavery is unconstitutional-
    • Public outcry and Civil War follow
  • Copyright © 2013 Cengage

The Development of the Federal Courts

  • Government and the Economy
    • 1860’s–1930’s: When can the economy be regulated by the states and when by the national government?
    • Private property and the 14th Amendment-Life, Liberty, Property, contracts, corporations, etc.
    • 14th and 15th Amendments and the effect on African-Americans –court protection from hostile state action
  • Copyright © 2013 Cengage

The Development of the Federal Courts

  • Government and Political Liberty
    • Supreme Court decisions-late 30’s more civil liberties, less economic questions
    • FDR’s “Court Packing Scheme”
    • Chief Justice Earl Warren- rise in judicial activism
  • Copyright © 2013 Cengage

The Development of the Federal Courts

  • The Revival of State Sovereignty
  • 11th amendment had been ratified to prevent a citizen from suing a state in federal court and courts seem to embrace it in modern times
    • Supreme Court’s rendezvous with the new health care plan of 2010: Is the health care mandate interstate commerce thereby allowing federal gov’t to levy taxes? STAY TUNED
  • Copyright © 2013 Cengage

Figure 16.1 Economics and Civil Liberties Laws Overturned by the U.S. Supreme Court, by Decade, 1900–2006

  • Copyright © 2013 Cengage
  • Note: Civil liberties category does not include laws supportive of civil liberties. Laws include
  • federal, state, and local.
  • Source: Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2007–2008,
  • 5th ed., p. 302 (Washington, D.C.: CQ Press, 2008). Reprinted by permission of CQ Press; a
  • division of Congressional Quarterly, Inc.

Tenure of Judges-Fed. 78

  • Term continues during good behavior
  • Assures judicial independence, knowledgeable jurists + protects individual rights
  • Prevents invasions on judicial power by Executive/Legislature
  • U.S. has effective means of checking behavior

Selecting Judges

  • All federal judges are appointed by the president and confirmed by the Senate.
  • Senatorial courtesy allows a senator from the president’s party to reject a federal district nominee from his or her state.

Selecting Judges

  • Presidents appoint nominees who share their political ideology. (Litmus Test?= Ideological Purity?)

Insulation from Public Opinion

  • Appointment process and life terms insulate justices from public opinion.
  • Justices deliberate in secret.


  • Original: where the case is heard first, usually in a trial.
  • Appellate: cases brought on appeal from a lower court.

The Jurisdiction of the Federal Courts

  • Federal-question cases – Cases concerning the Constitution, federal laws, or treaties
  • Diversity cases – Cases involving citizens of different states who can bring suit in federal courts
  • Copyright © 2013 Cengage

Federal Jurisdiction

  • Dual Court System
  • Some cases that begin in state courts can be appealed to the Supreme Court.
  • Controversies between two state governments can only be heard by the Supreme Court.

Figure 16.4 The Jurisdiction of the Federal Courts

  • Copyright © 2013 Cengage

Getting to Court: Standing to Sue

  • Sovereign Immunity: Can’t sue the gov’t without its’ consent
  • A party must demonstrate actual harm or a reasonable relation to the situation being challenged.
  • The Supreme Court is a court of concrete review (there must be an actual dispute), rather than a court of abstract review (involving a hypothetical dispute).

Getting to Court

  • In forma pauperis
  • Fee Shifting-loser pays winner court costs
  • Class Action Suits
  • Copyright © 2013 Cengage
  • Linda Brown was refused admission to a white elementary school in Topeka, Kansas. On her behalf, the NAACP brought a class-action suit that resulted in the 1954 landmark Supreme Court decision Brown v. Board of Education, p. 455.
  • Carl Iwasaki/Time Life Pictures/Getty Images

Getting to Court: Writ of Certiorari- “made more certain”

  • The “rule of four” requires agreement of four justices to hear the case
  • Involving significant federal or constitutional question
  • Involving conflicting decisions by circuit courts
  • Involving Constitutional interpretation by one of the highest state courts

The Supreme Court in Action

  • Brief – summarizes case
  • Amicus curiae – friend of the court
  • Per curiam opinion-brief, unsigned opinion of the court
  • Opinion of the court-majority view
  • Concurring opinion-agreeing w/ majority but w/ different reasons
  • Dissenting opinion-disagreeing opinion from majority decision
  • Copyright © 2013 Cengage

Judicial Review

  • Stare decisis-Let decision stand-based on prior cases/precedent
  • Power to find legislation to be unconstitutional is not enumerated but was implied by the founders
  • Already practiced in states & modeled in Britain
  • Designed not to increase judiciary but to limit legislature

Judicial Review

  • Defined: the power of the courts to declare laws unconstitutional
  • Over 160 federal laws have been declared unconstitutional
  • It is the chief judicial weapon in the checks and balances system.

The Development of Judicial Review

  • Marbury v. Madison (1803)
    • Chief Justice John Marshall concludes that judges have the power to decide whether acts of Congress, the executive branch, state laws, and even State Constitutions violate the US Constitution
    • Supreme Court justices have the final say about the meaning of the Constitution
    • This power to declare what the Constitution means and whether government actions violate the Constitution is know as JUDICIAL REVIEW

Premises of Judicial Review

  • The Constitution is a superior, paramount law that cannot be changed by ordinary means.
  • Acts of Congress, the Executive, and the States reflect temporary, fleeting views of what law is.
  • Acts of Congress, the Executive, and the States that conflict with the Constitution are not entitled to enforcement and must be disregarded.
  • Judges are in the best position to declare what the Constitution means.
  • Until recently “political questions” have been left to Executive & Legislative branches.
  • Remedy - Supreme court order declaring what actions must be taken to right a wrong

Arguments Against Judicial Review

  • Popular Sovereignty is represented in the Legislatures. Judicial Review disregards sovereignty of the people.
  • Judicial Review could lead to political turmoil if other branches or states to not follow the courts’ interpretations.
  • Judicial Review makes judiciary equal or even superior to legislatures, even though judges are not elected
  • All government officials take oath to consider constitutionality of their actions
  • Judges errors in interpretation cannot be corrected through voting, but only through amendments

Constitutional Interpretation

  • Strict construction/judicial restraint: judges are bound by the wording of the Constitution; judges are interpreters, not policy-makers. This is linked to “original intent.”
  • Loose construction/Judicial activism: judges should look to the underlying principles of the Constitution, and this can result in new policy.

Arguments for Judicial Activism

  • Courts should correct injustices when other branches or state governments refuse to do so.
  • Courts are the last resort for those without the power or influence to gain new laws.

Arguments Against Judicial Activism

  • Judges lack expertise in designing and managing complex institutions.
  • Initiatives require balancing policy priorities and allocating public revenues.
  • Courts are not accountable because judges are not elected and serve life terms.

Checks on Judicial Power

  • Court has no “police” power; The president and states can ignore/evade decisions.
  • Congress confirms judges & can impeach judges for bad behavior
  • Congress can pass legislation limiting court decisions & jurisdiction

Checks on Judicial Power

  • Congress and the states can amend the Constitution (11th amendment ratified to prevent a citizen from suing a state in federal court)
  • Congress can alter/repass laws found unconstitutional
  • Congress can alter the courts’ jurisdiction
  • Congress can change the number of judges

Public Opinion and the Courts

  • Defying public opinion may be dangerous to the legitimacy of the Supreme Court.
  • Impeachment and lack of enforcement powers mean justices are not completely isolated from public opinion.

Figure 16.5 Patterns of Public Confidence in the Court, 1974–2006

  • Copyright © 2013 Cengage
  • Source: The Gallup Poll.

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