Objectives:

1. Explain the concept of judicial review

   1. Judicial review is the right for federal courts to declare any acts of the government unconstitutional. This is not in the Constitution, however the Supreme Court has asserted this multiple times - most notably in the case Marbury v. Madison. This concept plays a role in our system of checks and balances, as judicial review is a check the judicial branch has on the other branches of government.

2. Summarize the development of the federal courts.

   1. Overtime, the federal courts have focused on a variety of issues. During the era of the Founding Fathers, the focus of the courts was in nation-building and the legitimacy of the federal government, as our country was just recently born. At the end of the Civil War, the courts focused on how the government was involved in the economy. Since the 1930s, the courts have concentrated on a variety of issues surrounding social equality and personal liberties.

3. Discuss the structure, jurisdiction, and operation of the federal courts.

   1. The Constitution only requires a Supreme Court - so all other federal courts are creations of Congress. The lowest federal court is the district courts, which there are 94 of. The Court of Appeals is higher than them, and they hear appeals from district courts. In our dual court system, the federal court deals with federal question and diversity cases, and all others are left to state courts. However, exclusive federal jurisdiction over federal criminal laws, appeals from federal regulatory agencies, bankruptcy, and controversies between two states

4. Explain how the federal courts exercise power and the checks on judicial power.

   1. One of the greatest powers of the federal courts is judicial review, the right of the federal courts to declare any acts of government unconstitutional. This is a key component of our constitutional system because it serves as a check on the other branches of government by allowing courts to decide if laws and actions are unconstitutional. Congress has checks on the judicial branch, because Congress has to approve judges, and they can impeach them as well. Congress can also revise legislation that is deemed unconstitutional, and alter the number of justices on the Court.

Judicial Review:

• Judicial review is a check that the judicial branch can impose on other branches of government.

• Two competing views - judicial restraint approach and activist approach.

  • Judicial restraint is more strict, whereas activist is more loose.

  • The difference between the two is not the same as the difference between liberals and conservatives.

Constitutional Origins of The Judicial Branch:

• Article III

  • Section 1 establishes the Supreme Court and gives Congress the power to establish other courts. Judges serve during “good behavior.”

  • Section 2 outlines the jurisdiction of the judiciary - concerns laws, the Constitution, and treaties. Trial of all crimes is by Jury.

• Federalist 78 by Hamilton

  • Founding Fathers defense of an independent judicial branch.

• Judiciary Act of 1789

  • Established lower courts, number of justices on the Supreme Court, original jurisdiction, etc.

• Marbury v. Madison

  • Marbury was going to be appointed as a judge at the end of Adams presidency. The paperwork was completed, but not yet delivered. Marbury filed a lawsuit against Madison, asking for the paperwork to be delivered. Lower court ruled against Marbury, and he appealed to the Supreme Court.

  • The Supreme Court declared the “writ of mandamus” unconstitutional. Judicial review was established.

Development of the Federal Courts

• National Supremacy:

  • From 1789 until the Civil War, the dominant interest of the Supreme Court was the nation-state relationship.

  • In Marbury v. Madison and McCulloch v. Maryland, the Court decided that they could declare acts of Congress unconstitutional, and that federal law is supreme over state law.

  • Power of the federal government to regulate commerce was established in Gibbons v. Ogden

  • At the time, the Jeffersonian Republicans were in power and were devoted to states’ rights, so they didn’t like the Marshall Court's decisions.

• Government and the Economy:

  • From the end of the Civil War to the early years of the New Deal, the dominant issue the Court was facing was deciding when the economy would be regulated by states and when by the nation.

  • The Founders believed political and property rights were linked, and this became an issue with the rise of a national economy.

  • The Court developed the view that the Fourteenth Amendment protects private property, and soon the Court was ruling on government regulation in business and labor.

• Government and political liberty:

  • After 1936, the Court stopped imposing serious restrictions on state or federal power to regulate the economy.

  • President FDR was frustrated since he could not fill any Court vacancies, therefore he wanted to pack the Court.

  • Many justices stepped down, and FDR filled the vacancies. The Court started to focus on activism and protecting rights and liberties of the people.

• The Revival of State Sovereignty:

  • Around 1992, the Supreme Court had many cases that hinted at the limits to the supremacy of the federal government

Structure of the Federal Courts:

• The Constitution only requires a Supreme Court - so all other federal courts are creations of Congress.

• The lowest federal court is a district court, which there are 94 of.

• The court of appeals hears appeals from district courts. There are 13 appellate courts.

• Party background makes a difference in judicial behavior and decision making.

• Senatorial courtesy: judges for US district courts must be approved by that state’s senator

• Litmus test is done to examine the political ideology of a judge.

  • Common because the courts are so deeply involved in political issues now.

  • Concern this emphasis might downplay the importance of professional qualifications

Jurisdiction of the Federal Courts:

• We have a dual court system - one state, one federal

  • The federal court deals with federal question and diversity cases, all others are left to state courts

  • Some cases can be tried in either court system if both state and federal laws have been broken

  • State cases can be appealed to the Supreme Court

  • Exclusive federal jurisdiction over federal criminal laws, appeals from federal regulatory agencies, bankruptcy, and controversies between two states

• Most federal cases begin in US district courts

• The Supreme Court picks the cases it wants to hear on appeal

  • Writ of certiorari requires four justices to hear a case

  • Usually deals with significant federal or constitutional questions

    • Conflicting decisions by federal circuit courts

    • State court decisions involving the Constitution

Getting to the Court:

• The Court rejects 96% of applications for certiorari

• Cost of appealing is very high, but can be lowered by

  • In forma pauperis: plaintiff has costs paid by the government and is supplied a lawyer

  • Payment by interest groups which have something to gain

• Standing guidelines:

  • Must be an actual controversy between two adversaries

  • Must show that you have been harmed by the law or practice you are complaining about

  • Being a taxpayer does not entitle you to challenge

• Class action suits:

  • Brought on behalf of all similarly situated

  • Financial incentives to bring suit

  • Need to notify all members of the class since 1974 to limit such suits

The Supreme Court in Action:

• Oral arguments by lawyers are presented after the briefs

• Many sources of influence, such as law journals

• Justice conference procedures include the chief justice speaking first, voting last, and guiding the debate.

Checks on Judicial Power:

• Congress confirms members of the Court and can impeach them

• Congress can alter the number of judges

• Congress can revise legislation that is deemed unconstitutional