American Gov: judiciary/Political parties and elections

Precedent –

A previous decision or ruling that, in common-law tradition, is binding on subsequent decisions.

Appeal –

A rehearing of a case because the losing party in the original trial argues that a point of law was not applied properly.

Amicus curiae briefs –

Literally, “friend of the court.”  Documents filed with the USSC by individuals or groups, who are not part of the case, urging court to hear a case OR to decide the case in a particular way.

Writs of certiorari 

(ser shee or RAHR ree, or “cert”, with a “t” for short) – formal request by USSC to hear a case from a lower court.  The USSC has to grant this for a case to be heard by the USSC. 

Criminal Law (prison) vs. Civil Law (lawsuits)

Civil: private parties versus private defendant; proponderance of the evidence; rests with the plaintiff; breach of contract personal injury; financial compensation/restraining order/injunctions

Criminal: government versus private defendant; beyond a reasonable doubt; rests with the government; burglary/DUI/Murder, fine/incarceration/restraining order/injunctions

Adversarial system –

Trial procedures designed to resolve conflict through the clash of opposing sides, moderated by a neutral, passive judge who applies the law.

Structure of U.S. (federal) court system

U.S. District Court – 94 of them

U.S. Court of Appeals – 13 of them (12 around the country, known as circuits, plus 1 based in DC handling federal government cases)

U.S. Supreme Court – 9 justices.  Number set by Congress.

1789 - 6

1807 - 7

1869 - 9

Structure of N.J. (state) court system

Municipal (judge is selected by local governing body. 3 year term.  No limit on terms. No mandatory retirement age.)

Superior Court  

Superior Court – Appellate Division 

N.J. Supreme Court – 7 members (Not 9, like USSC)

To be a state judge: 

• Nominated by Governor.  Confirmed by state Senate for 7 years.

• Then re-nominated by Governor.  Must be re-confirmed by Senate.  

• Tenure until 70.  Mandatory retirement age for all judges is 70.  

U.S. Courts –
By the numbers

• Over 300,000 cases heard by federal district courts.  (Less than 1% of all cases in state courts)

• Over 40,000 cases heard by federal courts of appeal.

• About 5,000 of these cases appealed to US Supreme Court. 

But USSC doesn’t agree to hear all of them.

Traditional Limits of the Courts –

“neither the purse nor the sword”

• Cannot exercise power on their own initiative.  They must wait until a case is brought before them.

• Limited in kinds of remedies they can impose.  Usually, this means relief of assistance to individuals.

• No enforcement powers.  

  Ex. Brown v. Board of Education (1954)

How federal judges are appointed

President nominates.

Senate Judiciary Committee considers nomination. (Maybe)

Full Senate votes on nomination.  (Maybe)

***  Robert Bork nomination to USSC in 1987 changed everything.

Judicial Review –
A check on Legislative  Branch

United States v. Lopez (1995)

• Congress passed the Gun-Free School Zones Act of 1990, which made it a crime to possess a gun within 1,000 feet of a school.

• Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school.  He was charged and convicted with violating the federal law. 

USSC ruled that Congress had exceeded its power under the Commerce Clause.  The ruling significantly limited Congress’s ability to create laws based on broad interpretations of economic regulation.

Judicial Review – A check on Executive Power

Youngstown Sheet & Tube Co. v. Sawyer (1952) 

During Korean War, President Harry Truman seized control of steep mills to prevent a strike, claiming national security concerns.  

USSC rules that the President exceeded his constitutional authority.  The President cannot create new powers during wartime that are not explicitly granted by the Constitution or Congress.

Judicial Review

– A check on bureaucratic power

The Chevron Doctrine – Chevron USA v. Natural Resources Defense Council (1984).

  

Required courts to defer to a federal agency’s reasonable interpretation of an ambiguous law.  So, if a law was unclear, courts would defer to the administrative agency’s interpretation of that law.

  

Chevron Doctrine ruled unconstitutional in Loper Bright Enterprises v. Raimondo (2024).  Improperly transferred judicial interpretation power to executive agencies.  It should be the courts that define what can and cannot be done when the law is vague, not the bureaucracy.

Accessing the US Supreme Court

• Judicial power extends to “cases and controversies.”  Therefore, nothing hypothetical.

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• Parties asking for the court to rule must have “standing”.  They have to have a substantial stake in the outcome.

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• Someone who loses in a lower federal court or a state court and wants the USSC to review has 90 days to ask for a “writ of certiorari” – the court process to seek judicial review of a lower court or government agency.

7,000 to 8,000 cases each year petition the USSC annually. 

Justices discuss.  The Rule of Four is that at least 4 of the 9 justices must agree to “grant cert” for a case to be heard. 

About 70 – 80 cases chosen.

What factors make it more likely that a case is “granted cert”?

• Conflicting decisions by two or more circuit courts

• Conflicting decisions by circuit courts and a state’s highest court

• Circuit court decision that conflicts with previous US Supreme Court decision.

The process – Part 1

Case is accepted.  Usually about 1% of all cases that try to be heard by USSC are granted cert.  (70 – 80 each year)

Amicus curiae (“friend of the court) – Individuals or groups who are not parties to the case but who seek to assist the Supreme Court in reaching a decision by presenting their own brief.

Briefs – Written documents in which attorneys explain, using case precedents, why the court should find in favor of their client.

Oral arguments – When attorneys for both sides appear before the Court to present their positions and answer questions posed by the justices.  

Justices will often interrupt the attorney and pose questions about broader implications of a ruling one way or the other. 

The process – Part 2

Conference – Justices discuss by themselves and eventually take a vote.

Opinion writing – Chief justice assigns one justice to write the majority opinion.  He can pick himself, and it is sometime strategic to do so.    

If he’s in minority, the senior most justice takes on that role.

Concurring opinion – Agree with conclusion of majority but want to add another point.  

Dissenting opinion – When a justice disagrees with majority, that justice (or a group) can write an opinion.  Influential in future years.

Trump signs executive order requiring proof of citizenship in federal elections

Constitution says states, not federal government, has power to regulate “time, place and manner” of elections. 

This EO directs Election Assistance Commission – an agency governed by statute enacted by Congress – to:

1. Change federal voter registration form to require government-issued documentary proof of citizenship.  

2. Prohibit states from counting ballots that arrive by mail after election day.

3. Allow DOGE and Dept of Homeland Security ability to review state voter lists.

• Only citizens can vote in federal elections.  Usually, voters must sign statements swearing they are citizens when registering. Any         non-citizen who falsely signs can be charged and deported.

• 18 states count ballots that arrive after election day IF ballots are postmarked by election day.  (Lots of military ballots included.)

• In past, GOP and Dem state election officials have pushed back when feds wanted copies of state voter rolls.

Political party –

a group of citizens, united by a combination of ideology and policy positions, who seek control of government by running candidates who will promote their ideas and policies.

Swing voters –

the portion of the electorate that is undecided at the start of a campaign.

Party base –

members of a political party who consistently vote for the party’s candidates. 

Party primary –

an election in which party candidates are nominated by voters.

• Closed primary –

• a primary election in which only registered party members may vote.

• •Open primary –

• a primary election in which eligible voters don’t have to be registered party members.

Founders feared parties, but it was all theoretical. 
Once the nation started, parties became essential.

Parties:

• →Seek control of government by running candidates. Different from interest groups.

• →Are broad coalitions, so not everyone in the party agrees on all issues.

CRITICS of parties:

• Cause polarization and gridlock.  Party loyalty beats collective problem solving.

• Heavily influenced by special interest groups.

PROPONENTS of parties:

• Mobilize voters to participate in elections.

• Party brands help uninformed voter make informed vote.

• Help organize governmental bodies.

America’s Two-Party System

Plurality rules.  

Be the top vote-getter and you win.  

NOT proportional, like most other countries.

U.S. election law reinforces two-party system.

Parties change over time.

Ideology… Issues… and Members 

• From the Civil War to the Great Depression, a majority of Black Americans were Republicans (because of Lincoln and GOP abolitionists)

• Roosevelt’s New Deal coalition broke that.  Black Americans became largely Democrats, along with working class.  Republicans were party of the wealthy.

• Reagan coalition helped turn southern Democrats into southern Republicans. 

• Trump coalition emerging – making further inroads with working class and others traditional Democratic populations.  Democrats becoming wealthier and more educated.

Here’s what the exit polls tell us…

Parties changing (potentially for long term)
in 2024

Today, parties defined by…
Rising Political Polarization Why did this happen?

Self-sorting – where we live and how we consume news/social media  

Age of Algorithms:  “if you liked this…”

Election districts – Gerrymandering means elected officials represent areas that strongly favor their party.  

Toughest competition is in PRIMARY.  So, they cater to the extremes.

Less willing to compromise.

Parties & Elections

All starts with 1. RECRUITING.  The politics of ambition – People run when they think they will win, and get out when they think  they’re going to lose.  (Look for retirement announcements in early 2026)

Then, the 3 M’s

 

2. MONEY - Hard money – directly to candidates

Soft money – independent of campaigns (SuperPacs)

     “Money in politics is like water on pavement.  

       It always finds the cracks.”

 

3. MESSAGE – What is this campaign all about?  

MAGA (2016, 2020, 2024).  Hope & Change (2008).  

4. MOBILIZATION – GOTV (Get Out the Vote)

Voting – Single most important political act

Elections generate different levels of voter enthusiasm

Presidential election  About 70% turnout in NJ

Midterm Election About 45% turnout in NJ

Gubernatorial election About 40% turnout in NJ

Legal Expansion of Who Can Vote

1920 – 19^th amendment – Suffrage for women.

1965 – Legal protection for Black Americans.

1971 – 26^th amendment – Lowered voting age to 18 from 21.

Transformational Social Media & Elections

2004 – Howard Dean – MeetUp.com – Finding like-minded people even in areas where you were the minority

2008 – Barack Obama – Emailing everyone and asking for $10… every month by giving your credit card number.

2016 – Donald Trump – Get your message out to millions of followers instantly/

2024 – Elon Musk – Change the algorithms and your message gets targeted and amplified.

Understanding elections in the US
means understanding the rules of elections

When to Vote – No longer election day.  Now, it’s election season.

• Vote By Mail (VBMs) – In NJ, mailed 7 weeks out.

• Early in-person voting – In NJ, 10 days out.

• Election Day  6 am to 8 pm

When to Register – In NJ, 3 weeks out.

• Same-day voter registration (21 states)

• Automatic voter registration (22 states)

Understanding Elections in the US
means understanding the rules of elections

“The Line” is gone from the NJ primary.  

NJ now has bubble ballot in a primary, like everyone else.

Electoral College 

Each state votes for their electors.  

Electors then vote for the president/vice president.

Electoral votes = State’s member of the House + Senate (NJ is 14)

You need 270 to win.

Preview – Pros & Cons of the Electoral College

Pros:

• Protects interests of smaller states

• Encourages broad-based campaigning

• Provides stability and clarity in close elections

cons:

• Potential misalignment of popular will

• Unequal voter influence

• Ignores large portions of electorate, esp. in non-competitive states

Voting – Single most important political act

Elections generate different levels of voter enthusiasm

Presidential election  About 70% turnout in NJ

Midterm Election About 45% turnout in NJ

Gubernatorial election About 40% turnout in NJ

Legal Expansion of Who Can Vote

1920 – 19^th amendment – Suffrage for women.

1965 – Legal protection for Black Americans.

1971 – 26^th amendment – Lowered voting age to 18 from 21.

Cory Booker breaks modern record for longest speech from Senate Floor

Booker’s speech surpasses Sen. Strom Thurmond’s 1957 remarks opposing the passage of the Civil Rights Act that lasted 24 hours

Trump Imposes Vast Global Tariffs

A 10% tariff will apply to all countries, but trading partners like China, Japan, and Europe will face rates two and three times as high

Senate Votes to Rescind Some Trump Tariffs, with GOP support

A measure to cancel Canadian tariffs is all but certain to stall in the House. But with a handful of Republicans in favor, the vote sent a signal of opposition to the levies.