AP US GOV - Unit 8, The Judiciary

Federalist 78: background info

Who wrote The Federalist No. 78?

• Alexander Hamilton 

Where were the Federalist Papers published?

• New York 

Why were the Federalist Papers written? (provide the historical context)

• To convince people to ratify the new US constitution  

Federalist 78: thesis/claim

An independent judiciary with life tenure during good behavior for federal judges is necessary for a good government

Federalist 78: Evidence/reasoning #1

Evidence #1: An independent judiciary with a life tenure during good behavior will help overcome the inherent weakness of the judicial branch 

Reasoning #1: The judicial branch needs to be independent from the other branches (that are given more power by the constitution) allowing them to serve more time allows for them to make less biased decisions. 

Federalist 78: Evidence/reasoning #2

Evidence #2: An independent judiciary with a life tenure during good behavior will uphold the principle of limited government 

Reasoning #2: They need to be independent in order to not be influenced by the other branches, they aren’t able to enforce limited government when they are influenced by the other branches 

Federalist 78: Evidence/reasoning #3

Evidence #3: An independent judiciary with a life tenure during good behavior will stop the legislature from violating the constitution with abusive laws 

Reasoning #3: The courts must be independent from the other branches to ensure that congress aren’t passing unconstitutional laws 

Federalist 78: Evidence/reasoning #4

Evidence #4: An independent judiciary with a life tenure during good behavior will best protect minority rights. 

Reasoning #4: Allowing life tenure for the judges will allow for them to best protect the minority from the majority 

What constitutional requirements are there in order to be eligible for a seat on the US supreme court?

none!!

What do presidents consider when nominating a federal judiciary?

1. Party affiliation

2. Judicial philosophy (how a judge interprets the constitution)

3. Demographics (gender, race, religion, age, etc)

4. Answers to political “litmus test” questions 

Marbury v. Madison: background

Following the end of John Adams (federalist party) presidency, he tried to create 17 judicial commissions (that allowed for federalist judges to go onto the supreme court) he wanted to make this decision in order to create a majority of federalists on the court. 

After Jefferson became president, and his secretary of state found the many judicial reviews left by the former presidency, and though these commissions were supposed to be sent out James Madison (the secretary of state) chose not to send out the commissions and give the federalists a majority on the court. 

Marbury (one of the judges that was supposed to receive a judicial commission) found out that Madison refused to send out the commissions, and he decided to sue.

• After the lawsuit was filed the democratic - republican congress controlled congress cancels the 4 month session of the supreme court 

Marbury v. Madison: constitutional question/issue of the case

• Does Marbury have a right to his commission, and can he sue the federal government for it? 

• Does the Supreme Court have the authority to order the delivery of the commission?

Marbury v. Madison: decision of the supreme court

• The court ruled in favor of Madison 

They voted for Madison because if they were to vote for Marbury the writ of mandamus would have to be issued to the executive branch, and they would choose to ignore it, which would prove that the supreme court has no real power.

• Justice Marshall said that the judiciary act of 1789 is unconstitutional meaning that the court has no power to issue a writ of mandamus 

Marbury v. Madison: impact/results of the decision

It created the power of judicial review that the judicial branch can exercise 

Limitations on the court's power of judicial review: Live controversy rule

a court will not consider hypothetical questions 

Limitations on the court's power of judicial review: Standing to sue

the plaintiff (a person who brings a case against another in a court of law) in a case must show that the situation adversely affects their legal rights in a personal way

Limitations on the court's power of judicial review: Political questions

a court cannot hear cases involve political questions

• Political questions = problems that defy resolution on legal/constitutional ground problems create intense political controversy, or when the court's decisions would be difficult to enforce (think of Baker v. Carr!!)

Limitations on the court's power of judicial review: Rules for interpretation

how the court should be involved / use their power

• courts should not rule on constitutional issue unless the ruling is absolutely necessary to settle the case 

• If there are 2 interpretations of a law the court should always choose the interpretation that allows the law to be held 

• They should make their rulings on constitutional issues as narrow as possible and shouldn’t decide issues immediately before any of the other lower courts (any “dictum” is non-binding on future courts) 

Jurisdiction

a court's power to hear and decide a particular case 

Type of jurisdiction: Subject matter jurisdiction

the power to decide controversies that occur under a type of law (cases involving a states law are tired in that specific states court, whereas federal laws are tried in federal court) 

Type of jurisdiction: Personal jurisdiction

the power over parties involved in the case based on where the parties live / do business / own property or where the events leading up to the case took place

Type of jurisdiction: Original/appellate jurisdiction

 

• Original = a court's power to hear and decide a case before any appellate review. A trial court necessarily has original jurisdiction over the types of cases it hears 

• Applelate  = the power of a court to hear appeal from lower courts including the power to reverse or modify the lower court's decision

• The only court with both original, and appellate jurisdiction is the supreme court

Characteristics of Trial courts

• Are the first to hear a case 

• They attempt to establish the facts of a case (what happened)

• Involves witnesses 

• Involves evidence and exhibits 

• May use a jury to determine the outcome of a case (not always required) 

Characteristics of Appellate courts

• Review lower courts decisions to see if the lower courts made any errors of law

• Only hear arguments about the law (not the facts of the case) 

• Only attorneys and judges speak during oral arguments in appellate court 

• No witnesses or new evidence can be presented in this type of court

What must a case have in order to reach the supreme court?

The case must involved a federal question (an issue of federal law that’s typically connected to the constitution)

Common paths for cases that go to the Supreme Court 

1. An appeal from federal court of appeals (most cases that make it to the supreme court come from the federal system)

2. An appeal from a state supreme court (only if the state case involved a federal question, this case is less common)

Writ of certiorari

an order by a higher court which directs a lower court to send up a case for review  

• Supreme court allows the lower courts to have the final say on a case 

• if 4/9 justices want to hear a case than the court will grant cert 

Types of cases the supreme court most likely grant cert to: Circuit split

when 2 or more US circuit courts of appeals have rules different on the same issue (ex: 2 different courts, one supports gay marriage, the other opposes it)

Types of cases the supreme court most likely grant cert to: Significance of the issue

important and timely topics (usually social issues) → trump being able to go onto the ballot to run for the presidency 

Types of cases the supreme court most likely grant cert to: The impact of a decision

the more the decision will impact people the more likely the court is to take the case 

“In exercising its discretion in granting certiorari, the Supreme Court is on the horns of a dilemma.” (from textbook)

The supreme court has limited time, so they cannot grant cert often but when they deny cert it allows the lower courts to have the final say on what the law means, which leaves room from conflicts in how laws are interpreted across the US 

What happens once the supreme court grants cert? 

Attorneys from both sides of the case submit legal briefs to the supreme court 

Legal brief = a written document made by attorneys that serves as the basis for an argument in an appellate court (it summarizes the legal arguments and authorities)

Amicus curiae brief (friend of the court)

written by a party that isn’t a party in the case, for the purpose of raising additional legal arguments (that are not contained in the briefs of the parties) the briefs attempt to influence the courts decisions 

Interest groups influence on cases

1. Filing amicus curiae briefs

2. Organizing cases (ex: the NAACP & brown v. board of education) 

3. Lobbying for/ against judicial nominees (president or US senators) 

Solicitor general

  A Lawyer that decides which lower court decisions the federal government will appeal, and argues cases before the supreme court when the federal government is a party for a case  

Law clerks

help to judge/justice with their work, receiving petitions the court receives, researching case law, and helping to write opinions 

Judicial review

the federal courts rights to declare that laws created by congress / acts of the executive branch are void when they are in conflict with the constitution

How can congress check the judicial branches power?

1. Can change the # of judges 

2. With the help of the states congress can undo a supreme court's decision by interpreting the constitution and amending the document  

3. Can decide the jurisdiction of the lower courts 

4. Can impeach judges 

5. Change the composition of the judges by controlling their appointment

Powers of the Chief Justice

1. Presides over oral arguments 

2. Presides over private conferences / debates with other justices 

3. Speaks first during deliberations 

4. Votes last during deliberations 

5. Assigns who will write the majority opinion (when the chief justice voted with the majority) 

   • If the chief justice did not vote in the majority the most senior member of the court decides who will write the majority opinion

How to supreme courts decisions impact lower federal courts

Precedent = a decision made by a court that sets an example to be followed by other courts in the future

• Decisions from higher courts create precedent that is binding for all lower courts 

Stare decisis

when a higher court decided a case setting the precedent, causing all lower courts to follow that decision when the same issue is brought up later in a case before a lower court   

• Only the supreme court is able to overrule past supreme court cases (to change the law

Opinions within the court: Majority opinion

a signed opinion of the majority of the judges participating in the decision (this is the ONLY opinion that has precedential value) 

• Makes a law → this is the law that all lower courts must follow 

Opinions within the court: Concurring opinion

a signed opinion in which one or more justices agree with the majority decisions for different reasons 

• Doesn’t make a law / no legal power 

Opinions within the court: Dissenting opinion 

a signed opinion in which one or more justices disagree with the majority's decision on the case (and their reason are explained in the opinion) 

• Doesn't make a law / no legal power 

Judicial activism

The view that judges should discern the general principles from underlying laws or the constitution and apply them to modern circumstances 

• Loose interpretation of the constitution 

• Followers of this philosophy are more likely to overrule past laws (court cases)

Ideas of judicial activism

Ideas:

• The constitution should be reexamined and reinterpreted because of the difference between when the constitution was written vs modern times 

• Courts should play an active role in shaping public policy

• Courts must act when other branches / states fail to correct injustices 

• Courts are a last resort to serve and protect for the powerless 

Judicial restraint 

The view that judges should decide cases strictly on the basis of language of the laws & the constitution (should generally follow precedent)

• Strict interpretation of the constitution 

• Followers of this philosophy are less likely to change past laws unless they specifically do NOT follow the constitution 

Ideas of judicial restraint

• It's not the job the judges to change laws through interpretation (its congress’s job)

• The constitution should be interpreted as closely to the original meaning as possible 

• Courts should defer legislatures & exercise judicial review to overturn laws ONLY when there is a clear violation of the constitution 

• Courts shouldn’t assure the legislatures responsibilities & should not become “unelected legislators” by actively making / changing public policy with their decisions 

• Judges shouldn’t interfere in areas where they lack expertise (congress is better prepared)

Independent judiciary 

• Supreme court justices serve for life 

• The judicial branch does not have any shared power with the other branches of government 

• Judges pay cannot be reduced 

Legislative branch checks on supreme court

1. Congress can impeach (the house) and remove (the senate) federal judges, including supreme court justices from the bench following the same process that is used for the president or vice president 

2. Congress can changed the # of composition of the federal courts 

3. Congress can changed the jurisdiction of federal courts (restrict courts from hearing certain cases)

4. Congress can change the constitution (⅔ of both house of congress must vote to propose it, ¾ states would need to ratify it) 

Executive branch checks on supreme court

1. The president has the appointment power for all federal judges (including supreme court justices 

2. The supreme court has no enforcement powers → the president can choose to enforce or to not enforce the courts decisions 

How the people can check the supreme court

1. Elect legislators (if the court upholds an unpopular law the legislature can always change the law)  

2. Join an interest group that organizes cases / writes amicus curiae briefs 

3. Call US senators and tell them to vote to confirm a new justice that will be likely to overturn the precedent or vote to reject a new justice that would uphold the precedent 

4. Elect a new president who would appoint justices that would be likely to overturn

5.  the precedent 

Other checks on Courts

1. Public opinion can restrict the supreme court: if the court blatantly disregards public opinion) which risks its legitimacy 

• The supreme court is powerful partially because people respect the courts and believe that their decisions must be followed 

Steps to the Supreme Court

1. every case starts in a trial court (state or federal court → which law is the case involved in)

• If one of the parties involved in the case disagrees with the judges decisions they can file an appeal and it would go to an appellate court (they do not have to accept your appeal)

2. Goes to the appellate court and they can either agree or disagree with the case 

3. If they agree the lawyers from both sides will submit legal briefs (that explain their arguments) 

4. Both parties will present the oral arguments to the court then the judge will decide which party wins 

5. Who ever gets the most votes wins (either overturn and changed the case, or uphold the lower court's decision)

6. If one of the parties is unhappy with the outcome of the case they can appeal to the supreme court 

7. The supreme court can choose to or to not accept the the party's appeal (the court follows the rule of 4 meaning that if 4 judges want to hear the case then they will) 

8. Both parties will present the oral arguments to the court then the judge will decide which party wins 

9. Who ever gets the most votes wins (either overturn and changed the case, or uphold the lower court's decision)