Judicial Independence from Money and Politics

• Haliton argued that judiciary should be independent, and appointments for life and salary protections should be implemented, still happens today

1. How do money, politics, and SCOTUS interact?

   1. Most federal judges appointed, but 90% of state ones elected, fear of Governors and legislators playing buddy buddy.

   2. More money in state judges, create crisis of confidence

      1. Most is dark money

   3. Caperton v. Massey Coal Co

      1. Caperton alleged a WV judge was not independent due to Capteron’s opponent funding the judge’s election, and creating a “debt of gratitude”, and SCOTUS said that violated the Due Process Clause, 14th amendment since the judge did not recuse himself

      2. Held up judicial independence, judge should have recused himself

   4. Proper judiciary above politics, esp. SCOTUS

      1. Can be viewed through political lens, and federal judges drawn in

2. Why did Sotomayor’s appointment matted

   1. Fed. judges appointed by president, confirmed by senate

   2. In 2009, Obama needed to fill vacancy, but chose Sotomayor

      1. Controversial due to her public statements on using personal experience when judging

      2. Conservatives wanted to discredit her to gain support, but risked alienating others

      3. Got appointed (liberal Senate, popular president)

The Constitution and the Federal Judiciary

• Delegates did not spend much time on Judiciary, but should be independent, hard to change salaries, etc.

1. What is Article III?

   1. Only SCOTUS in Constitution

      1. Establishes it as supreme, and over federal laws and jurisdiction

      2. Briefly describes federal court Jurisdiction, original and appellate jurisdiction (*see flashcards*)

2. What were the controversies around the judiciary in the Constitution?

   1. Antifederalist feared powerful judiciary could squash rights, imposing their view of constitution on people

      1. Brutus 11

   2. Hamilton responded in Federalist 78, saying that the Judiciary only had power of judgment, and due to tenure and salary protections, it would be above politics and impartial.

3. How did Congress Build the Judiciary?

   1. Passed Judiciary Act of 1789, established 6 associate judges, but has been 9 since reconstruction

   2. Established appellate courts, and belo them distric courts

4. How does appointment work in the federal judiciary?

   1. Appoint by president and senate confirms as long as good behavior, is a part of president’s legacy

   2. SCOUTS and appellate court appointmets more political, but districts better because of senatorial curtesy

   3. Senate appointments to SCOTUS recently involved intense scrutiny, but cloture vote down to simple majority in 2013, and confirmation to simple majority in 2017

5. How do politics affect SCOTUS nominations?

   1. Presidents must choose carefully (legacy on line), usually already federal judges, but no qualifications necessary.

   2. Must have Integrity, legal accomplismment, etc.

   3. Once appointed, free to act, so President must appoint someone who has same philosophies

6.3 - John Marshall and the Power of SCOTUS

• He helped define Judiciary, was SCOTUS chief justice

1. What was the election of 1800?

   1. Nasty election, tied number of electoral votes for Jefferson and Burr, went to House, each state 1 vote

   2. This led to 12th Amendment, which separated vote for VP and President, Jefferson won.

      1. Ties still decided by house

2. What were the Judicary Acts of 1801?

   1. To keep federalist hold in Govt., this act expanded # of federal Judges, allowe dfederalists to cement judges (lifetime appointment)

   2. Reduces SCOTUS size, reorganization left 16 vacancies, some appointments not delivered during Adams’ time due to Hasty nature

   3. Some not delivered, led to Marbury v. Madison, Marbury (apppointee) sues Sec. of State Madison, saying they had been appointed

3. How do politics and the power of SCOTUS interact?

   1. Marshall was Federalist and politician, longest serving chief justice, increased national govt. Power and judicial independence

   2. Had to deal with political implications, if bowed to jefferson it would seem like a weak judicary, if he sided with Marbury he might be ignored or impeached

4. What was Marbury v. Madison?

   1. Decided that they were properly confirmed, that they could go to court to dispute Madison, but could not attain writ of madamus ordering Madison to deliver confirmations

   2. Judiciary Act of 1789 had granted power ti issue this writ, but SCOTUS powers laid out in constitution, so the courts cannot issue writs of mandamus

   3. Marbury and others never got commissions

   4. In decision established Judical review, or power to see if law is constitutional

5. What were the implications of Marshall’s decision?

   1. Expanded court power, but made the branch coequal, drawing on constitutional underpinnings, similar to those in Hamilton’s Federalist 78.

   2. SCOTUS struck down a lot of state laws, but not a federal one until Dred Scott decision, widely viewed as terrible decision

   3. Controverial today

6.4 - Organization of the Federal Judiciary

• Single federal Judiciary, 50 state Judiciaries

1. What are criminal and civil cases?

   1. Criminal law is when laws re made o protect cumminity (no theft, etc.), govt. Acts as prosecutor, state laws vary (federalism issues), both federal and state courts cover this

   2. In this case, constitutional protections

      1. Double jeopardy, right to speedy trial, impartial jury, attorney, etc.

   3. Invloves punishment (fine, prison, death)

   4. Civil cases involve a group or person violating another’s rights, plaintiff argues they have been wronged, decided by judge or jury

2. How do state courts work?

   1. States handle majority of cases, most have original jurisdiction, and are structured differently by state, and may have specialty courts (like small claims courts)

   2. More than half have appellate system, and some have state SC, but some go to federal appellate courts, esp. If constitution gets involved

3. What are Federal District Courts?

   1. 94 district courts, but districts do not cross state lines. They have original jurisdiction, and handle most work. All criminal and some civil garunteed jury

4. What are the Appellae Courts?

   1. Only has appellate juristiction, 13 circut courts, middle level

      1. 12 is for DC and federal agencies

      2. 13 is for patent law and international trade

5. What is SCOTUS?

   1. Constitutionally highest court. Mostly has appellate juristiction, unless dealing with

      1. A state

      2. Ambassadors

      3. Public officials

   2. 9 judges, of which 1 is chief justice, and all have support staff

6. How are cases decided to be heard?

   1. First they diecide if to hear it (they only hear about 1% of 7k 8k petitions for appeal), and then they decide on case merits and law.

   2. Declining case load since 80s

   3. Will hear if 4 or more justices vote for it, little constitutional guidance, issues writ of certiorari.

   4. Usually hear cases if difference in interpretation on lower courts, or if constitution, treaties, or federal law.

   5. SCOTUS decisions set precedent, decisions based on them, but if principal of stare decisis, can allow decision to stand

7. How does SCOTUS hear and decide on cases?

   1. If court grants cert, briefs requested laying out full arguments from both sides, 3rd parties may file amicus curiae, try to sway the precedential effect.

   2. Oral arguments then heard, no Camera’s allowed, then justices meet and vote in secret, can take a while.

   3. Majority opinion carries precedent, can affirm, deny, or remand to lower court. If chief justice part of majority, they appoint writer of majority opinion, if not most senior member writes it

   4. Concurring opinion expresses different logic but same conclusion

   5. Dissenting opinion is that of those who voted in minority, can serve to show why Court could be wrong.

6.5 - Judicial Review, Constitutional interpretation, and Judicial Descision making

• SCOTUS judges not elected, so can go against majority of public, potentially despotic

  • By apporiving laws, can get legitimacy, but could trample minority rights

  • Different philosophies in interpretation

1. What is Judicial Restraint and Judical Activism?

   1. Judicial Restraint says that SCOTUS shoudl avoid using judicial review. This would help to:

      1. Maintain popularity

      2. Make their decisions more potent

      3. Prevent constitutional specialists from acting as policy specialits

   2. Judicial activism is the view that court should take action when other branches don’t to protect minority rights

      1. Not conservative or liberal

      2. Some cases like NFIB v Sebilius can be viewed from both, decision that part of ACA upheld, people must have health insurance or pay fine.

         1. Activism because it broadens tax power

         2. Restraint because it deferrs to congress

2. Checks on SCOTUS power

   1. President appoints, Senate confirms

   2. Congress sets # of SOCTUS judges

   3. Congress and States can amend constitution

   4. Congress can modify impact of rulings

   5. Must rely on other 2 branches to enforce rulings

      1. See Worster v. Georgia