Judicial branch

Common law

Judges decide how to apply existing law to resolve nuanced disputes

• Till early 20th century, abortion is legal in 1st trimester in most states by judge’s decision

Statutory law

Legislatures create new legislation, overriding existing common law

Constitutional law

Legal meaning found by judges in the constitution, overrides other laws at state/federal level

• Roe v. Wade

Us supreme court system

District court then Court of appeals to supreme court

Or state trial courts, intermediate appellate courts, then state supreme courts to US supreme court

Judges judicial powers

• Legal interpretation

• Judicial review

• Lifetime appointment, under good behavior

How many justices

9

Process for nominating and confirmation of justices

Appointment: Executive branch determines who becomes a justice, congress then confirms it

Counter majoritarian difficulty

Founders distrusted justices as they weren’t elected, served for life, and might make decisions against public

How is judiciary the least dangerous branch (said by Hamilton)

• It doesn’t have power of the sword (enforcement) or purse (funding)

• Courts cant raise armies, control budgets, or make laws on their own

  • Only interpret and apply laws passed by others

Depends on other branches to enforce its ruling, influence comes from judgement and legitimacy, NOT direct power

Marbury v. Madison

Madison refused to deliver his commission

• The start of all court judicial cases

History of judicial review

• Power of courts to determine whether laws/government actions are constitutional

• NOT directly in constitution, was established through marbury v. madison

• Justice Marshall said its the duty of the judiciary to say what the law is

• Election of 1800, Jefferson beats Adams then Adams packs the courts

• Order is signed and sealed but Jefferson refuses to deliver letters, so Marbury doesnt get the job and sues for writ of mandamus

• Marshall rules in Jeffersons favor by claiming the right to judicial review

Partisan control of the supreme court today

• 6-3 control by conservative justices (court)

• Cant act proactively, only hear cases presented to them by others

• Refusing to hear a case affirms or stays lower court decision

• Reasoning of decisions usually is more important than ruling

Writ of certiorari

• Rarely given, 4/9 justices required

• Decisions to hear case

Stare decisis

• Rarely given

• SCOTUS sets precedent all other courts must follow

• Only future SCOTUS may reserve

Conservative decision making

Textualism, fixed in written content

Literalism, meaning of words

Originalism, original understanding

Liberal decision making

Organicism: Meaning can be re interpreted in context of times

Active liberty decision making

Interpret in a way that maximizes liberty and minimizes encroachment by others

3 models for how judges make decisions

1. Legal

2. Attitudinal

3. Strategic

Legal model

Judges only decide cases based on legal merits of the case

• Ex: Ruling on discrimination

Attitudinal model

Decide based on their personal beliefs

Strategic model

Decide based on grander strategic needs

• Avoid defects, protect court reputation, and personal legacy