the judiciary gov rdg check

409

164Th Supreme Casrt in Action

statement by

brief A written statem

an dt

arizes a

ha lws and rulings

that eunoort it

amicus curiae A brief sub-

mitted by a trenc

and of the court

against the company on behalf of

ns of dollars might

vou bring

everybo

be a

cs

E

lawyers wousld

erly to take the

etheir share of the settlement, if th

beca

The opportunity to win profitable cas-action suits,

combined with the possibility of having he loser pay the

e toser Pay the

attorneys fees, led to a proliferarion

In response to the increase in its workload, the

Supreme Court decided in 1974 to drastically riehten

the rules governing these suits. It held that it would no

longer hear (except in certain cases defined by Congress,

s civil rights matters) clas-action suits secking mon-

ctary damages unless cach and every ascertainable member

afthe class was individually notificd of the case. To do this

often is prohibitively expensive (imagine trying to find and

send a leter to cvery customer who may have been over-

charge t incd and the number of lawyers secking

clined and the number of lawers secking

such

of such

them

opped.45

ut it remains casy to bring a dass-action suit in

most state courts. State Farm automobile insurance com-

vas told by a state judge in a small Illinois town

it must pay over S1 billion in damages on bchalf of a

"national" class, even though no one in this class had been

notificd. Big class-action suits powerfully afect how courts

make public policy. Such suits have forced into bankruptcy

companies making asbestos and silicone breast implants

and have thrcatened to put out of business tobacco com-

panies and gun manufacturers. (Ironically, in some of these

cases, such as the one involving breast implants, there was

no scientific evidence showing that the product was harm-

ful.) Some class-action suits, such as the one ending school

segregation, arc good, but others are frivolous efforts to

get companies to pay large fees to the lawyers who file

Pay

the suits.

In sum, getting into court depends on having stand-

ing and having resources. The rules governing standing

are complex and changing, but generally they have been

broadencd to make it casier to enter the federal courts,

especially for the purpose of challenging the actions of the

2overnment. Obtaining the resources is not casy, but it has

: casier because in some cases laws now provide for

ups are willing to finance

fee shifting private interest grot

suit that lawyers find lucrative.

cases, and it is sometimes possible to bring a class-action

16-4 The Supreme Court

in Action

If your case should find its way to the Supreme Court

and of course the odds are that it will not-you will

be able to participate in one of the more impressive,

sometimes dramatic

ceremonies of Ameri

..hlic life. The

Caurt is in scssion in

its white marble build-

ing for 36

ing for 36 weeks of

cach year, from early

October until the end

of lune. The nine justices read bricfs in their i individual

offices, hear oral arguments in the nother in a confer-

courtroom,

and discuss their decisions with on

ever allowed.

ence room where no outsider 1s

ve seen, come to the Court on

The lawvers for each side may then

cir briefs, A brief is a document that sets forth

Most cascs, as we

a writ of certi

the facts of the case, summarizes the lower-court decision,

ives the arguments for the side represented by the lawyer

ne

who wrote the brief, and discusses the other cases that

Caet has decided bear on the

the Court has decided bear on the issue. Then the law-

yers are allowed to present their oral arguments in opcn

court. They usually summarize their briefs or emphasize

particular points in them, and they are strictly limited in

time-usually to no more than a half hour. (The lawyer

speaks from a lectern that has two lights on it. When the

white light goes on, the attorney has five minutes remain-

ing: when the red flashes, he or she must stop-instantly)

The oral arguments give the justices a chance to question

the lawyers, sometimes searchingly.

Since the federal government is a party-as either

plaintiff or defendant-to about half the cases that the

Supreme Court hcars, the government's top trial law-

yer, the solicitor general of the United States, appears

frequently before the Court. The solicitor general is the

third-ranking officer of the Dcpartment of Justice, right

after the attorney general and deputy attorney general.

The solicitor general decides what cases the government

will appcal from lower courts and personally approves

every case the government presents to the Supreme

Court. In recent years, the solicitor general often has

been selected from the ranks of distinguished law school

professors.

In addition to the arguments made by lawyers for the

two sides in a case, written briefs and even oral arguments

may also be ofered by a "friend of the court," or amicus

curiae. An amicus bricf is from an interested party not

directly involved in the suit. For example, when Allan

Bakke complained that he had been the victim of"reverse

discrimination" when he was denied admission to a Uni-

versity of California medical school, 58 amicus briefs were

fled supporting or opposing his position. Before such briefs

can be filed, both parties must agrec or the Court must

grant permission. Though these briefs sometimes offer

new arguments, they are really a kind of polite lobbying

410 Chapter 16 The Judiciary

TABLE 16.2 | Supreme Court Justices in Order of Senionty

Name (Birth Date)

John G. Roberts, Jr, Chief Justice (1955)

Anthony Kennedy (1936)

Clarence Thomas (1948)

Ruth Bader Ginsburg (1933)

Stephen Breyer (1938)

Samuel Alito, Jr. (1950)

Sonia Sotomayor (1954)

Elena Kagan (1960)

Neil Gorsuch (1967)

per curiam opinion A brief,

unsigned court opinion

opinion of the Court A

signed opinion ofa majonity of

the Suprerme Court

concurring opinion A

signed opinion in which one or

more members agroe with the

majority view but for dlifferernt

reasons.

dissenting opinion A signed

opinion in which one or more

justices disagree with the

majonity view.

Home State

Maryland

California

Georgia

New

v York

Massach chusetts

New Jersey

New York

New York

Colorado

of the Court that declare

which interest groups

are on which side. The

ACIU. the NAACP the

AFL-CIO, and the U.S.

govern ment itself have

been among the leading

sources of such briets.

These briefs are not

the only source of influ-

ence on the justices

views. Lcgal periodicals

such as the Harvand Law

Review and the Yale Law

lournal are frequently

consulted, and citations

to them often appear in the Court's decisions. Thus the out-

side world of lawyers and law profesors can help shape, or

at least supply arguments for, the conclusions of the justices.

The iustices retire every Friday to their conference room

where in complete secrecy they debate the cases they have

heard. Thc chief justice speaks first, followed by the other

justices in order of seniority. After the arguments they vote,

traditionally in reverse order of seniority: the newest justice

votes first, the chief justice last. By this process an able chief

justice can exercise considerable influencein guiding or

limiting debate, in setting forth the issues, and in handling

sometimes temperamental personalities. In deciding a case,

a majority of the justices must be in agreement: If there is a

tie, the lower-court decision is left standing. (There can be

a tie among nine justices if one is ill or disqualifies himn- or

herself because of prior involvement in the case.)

Though the vote is what counts, by tradition the

Court usually issues a written opinion explaining its deci-

Sometimes the opinion is briet and unsigned (called

a per curiam opinion); sometimes it is quite long and

etimes it is o cd (called

signed by the justices agreeing with it. If the chief justice

the justices aer

Prior Experience

Federal judge

Federal judge

Federal judge

Federal judge

Federal iudge

Federal judge

Federal judge

Law school dean

Federal judge

Appointed by (Year)

G.W. Bush (2005)

G.H. W. Bush (1991)

Obama (2009)

Obama (2010)

Reagan (1988)

Clinton (1993)

Clinton (1994)

G.W. Bush (2006)

Trump (2017)

is in the majority, he will either write the opinion ot as

the task to a justice who agrees with him. If he ie t

minority, the senior justice on the winning side wil

who writes the Court's opinion. There are three inds of

opinions-an opinion of the Court (reflecting the main,

ity's view), a concurring opinion (an opinion by

more justices who agree with the majority's

conclusion

but for different reasons that they wish to expres), and

a dissenting opinion (the opinion of the justices on the

losing side). Justices cach have three or four law clerks to

help them review thc many petitions the Court receive

study cases, and write opinions.

Many Supreme Court decisions, perhaps two-fifths of

them, are decided unanimously. In these cases, the law is

clear and no difficult questions of interpretation cxist. But

for the remaining ones, there seem to be two main blocs

and one swing vote on today's Court (Justice Gorsuch is

not included because he joincd the Court late in is 2016-

2017 term; where he will be listed remains to be seen):

A conservative bloc of SamuelAlito, John Roberts, and

Clarence Thomas.

• A liberal bloc of Stephen Brever, Ruth Bader Ginsburg

Elena Kagan, and Sonia Sotomayor.

A swing vote of Anthony Kennedy. He often votes wi

the conservatives on criminal law but on some other

cases (abortion, gay rights, and reign cot bels

etained at Guantanamo Bay) votes with the libera

The

The great maiority of the cases heard in thet

Power of the Federal Courts

grcat majority of thec cases heard in the federal co

changes in public pol

the cour

have little or nothing to do with ch

re tried, dispuie

icy: people accused of bank robbery

cused of banl.

sare heard

OVer cont

ontracts are settled, personal-injury ase

ces.

s

and patent law is applied. In most instancelaw to

re simply applying a relatively settled bodyo

are

specific cor

411

164 The Supremme Court in Action

IMAGE 16-5 The nine members

of the U.S. Supreme Court are:

Front row-Justices Ruth Bader

Ginsberg and Anthony Kennedy.

Chiet Jus Thomas and

Stenhen Rrever: second row-

Justices Elena Kagan, Samuel

Alito Jr. Sonia Sotomayo, and

Neil Gorsuch.

stare decisis "Let the dec-

sion stand allowing pr

ings to control a current case.

political question An issue

the Suprerme Court will allow

the executive and legislative

branches to decide.

remedy A judicial order

enforcing a right or redressing

a wrong

The Power to Make Policy

ourts make policy whenever they reinterpret the

law or the Constitution in significant ways, extend the

reach of existing laws to cover matters not previously

oueht to be covered by them, or design remnedies for

problems that involve the judges acting in administra-

tive or legislative ways. By any of these tests the courts

have become exceptionally powerful.

One measure of that power is the fact that more than

160 federal laws have been declared unconstitutional. And

s we shall see, on matters where Congress feels strongly.

it can often get its way by passing slightly reviscd versions

of a voided law.

Another measure, and perhaps a more revealing one,

is the frequency with which the Supreme Court changes

is mind. An informal rule of judicial decision making

has been stare decisis, meaning "let the decision stand."

Itis the principle of precedent: A court case today should

be settled in accordance with prior decisions on similar

ces. (What constitutes a similar case is not always clear;

lawyers are especially gifted at finding ways of showing

that rwo cases are different in some relevant way.) Prec-

cdent is important for two reasons. The practical reason

should be obvious: If the meaning of the law cont

aly changes, if the decisions of judges become wholly

unpredictable, then human affairs affected by those laws

and decisions become chaotic. A contract signed today

might be invalid tomorrow. The other reason is at least

important: If the principle of cqual justice means

decided

anything, it means that similar cases should be decide

In a similar manner. On the other hand, times change,

and the Court can

make mistakes. As Jus-

tice Felix Frankturter

once said, "Wisdom

too often never comes,

and so one ought not to

reject it merely because

it comes late."

However compel-

ling the arguments for

flexibility, the pace of

change can become diz-

zying. By onc count, the Court has overruled its own pre-

vious decisions in more than 260 cases since 1810. In

fact, it may have done it more often, because sometimes

he Court does not say that ir is abandoning a precedent,

claiming instead that it is merely distinguishing the present

case from a previous one.

A third measure of judicial power is the degree to

which courts are willing to handle matters once left to the

legislature. For example, the Court refused for a long time

to hear a case about the size of congressional districts, no

matter how unequal their populations. The determina-

tion of congressional district boundaries was regarded as

a political question-that is, as a matter that the Consti-

tution left entirely to another branch of government (in

this case, Congress) to decide for itself. Then, in 1962, the

Court decided that it was competent after all to handle this

matter, and the notion of a "political question" became a

much less important (but by no means absent) barrier to

judicial power.

412 Chapter 16 The fudiciary

IMAGE 16-6 When the Supreme

Court heard arguments about

the constitutionality of same-sex

marriage in 2015, demonstrators

expressed their views outside the

building

discrimination on grounds of race, color, or national ori.

gin in any program receiving federal financial assistance

The Supreme Court interpreted that as meaning the San

Francisco school system was obliged to teach English to

Chinese students unable to speak it." Since a Supreme

Court decision is the law of the land, the impact of that

ng was not limited to San Francisco. Local courts and

ruling

teles elsewhere decided that that decision meant that

legislarures clsewhere decided that that decision meant that

classes must be taught in Spanish for Hispanic children.

What Congress meant by the Civil Rights Act is not cdear;

it may or may not have believed that teaching Hispanic

children in English rather than Spanish wasa form of dis

crimination. What is important is that it was the Court,

not Congress, that decided what Congress meant.

Views of Judicial Activism

Judicial activism has, of course, been controversial. Those

who support it argue that the federal courts must cot

injustices when the other branches of the federal govei

ment, or the states, refuse to do so. The courts are th

institution of last resort for those without the votes

influence to obtain new laws, and especially for the poor

s or the

and powerless. After all, Coneress and the state legs

tures tolerated segregated public schools tor decauin

Supreme Court had not declared segregation unco

C hac

tional in 1954, it might still be law today.

judges usually have no special expertise

Those who criticize judicial activist n rejoin that of

envitot

school

mental protection, and so on; they are ay

administration, prison manageme

espet

and

in defining rights and duties but not

designi

in

boeer

managing complex institutions. Furthern more may be

desirable court-declared rights and princ

ciples

power can be found in the kinds of remedies that the

courts will imposc. A remedy is a judicial order setting

forth what must be done to correct a situation that a judge

belicves to be wrong. In ordinary cases, such as when one

person sues another, the remedy is straightforward: The

By all odds the most powerful indicator of judicial

loser must pay the winner for some injury tnat e o

he or s

has caused, the loser must agree to abide by the terms of a

contract he or she has broken, or the loser must promise

not to do some unpleasant thing (such as dumping garbage

on a neighbor's lawn)

Today, howeve, judges design remedies that go fa

beyond what is required to do justice to the individual

parties who actually appear in court. The remedies now

imposed often apply to large groups and affect the circum-

stances under which thousands or even millions of people

work, study, or live. For example, when a federal district

judge in Alabama heard a case brought by a prison inmate

in that state, he issued an order not simply to improve the

lot of that prisoner but to revamp the administration of

the entire prison system. The result was an improvement

in the living conditions of many prisoners, at a cost to

the state of an estimated S40 million a year. Similarly, a

person who feels entitled to welfare payments that have

been denicd him or her may sue in court to get the money,

and the court order will in all likelihood affect all welfare

recipients. In one case certain court orders made an addi-

tional 100,000 people cligible for welfare,

The basis for sweeping court orders can sometimes be

found in the Constitution; the Alabama prison decision,

for example, was based on the judge's interpretation of the

Fichth Amendment, which prohibits"crucl and unusual

punishments." Others are based on court interpreta-

tions of federal laws. The Civil Rights Act of 1964 forbids

413

I64The Supreme Court in Action

Such phrases may have been clear to the

they have become

of citizens." Such phrases may have ec

citizens. he Supreme Cou

l or elastic. How the

in ways that can b

personal political beliets of the justices.

Framers, but to the Sup

cqu

hosen to inte

er the past two

d in part by the

nhrases has changed g

prets

passed laws that also con-

ncreasingly, Congre

Aing immeasurably

vacue language,

iening remedies. Various C

courts' opportunities for desE

rights acts outlaw

nation but do not say how one

cct it if it does occur. That is left

about how the public inter-

is to know whether discrimination has occurred or what

should be done to corre

to the courts and the bureaucracy

kination has occ

e bureaucracy. Various regulatory law:

empower administrative agencic to do what the publie

rle

interest requires but say littie

est is to be hoods speak of "citizen par

say

eend Iaws intended to alleviate poverty

lain

or how much

ihle narticipation" but do not exp

or "maximum feasiblc hor partic should participate, o

who the citizens

dirion to aws that require interpretation, other

power they should have.

n additi

laws induce litigation. Almost every agency that regulates

business will make decisions that cause the agency to be

challenged in court-by business firms if the regulations

go too far, by consumer or labor organizations if they do

not go far enough.

One study showed that the federal courts of appeals

heard more than 3,000 cases in which they had to

revicw the decision of a regulatory agency. In two-thirds

of them, the agency's position was supported; in the other

third, the

these cases arose out of agencies or programs that did not

even exist in 1960. The federal government today is much

ncy was overruled."9 Perhaps one-fifth of

more likely to be on the defensive in court than it was 20 or

30 years ago.

Finally, the attitudes of the judges powerfully affect

what they will do, especially when the law gives them

wide latitude. Their decisions and opinions have been

extensively analyzed-well enough, at least, to know

that different judges often decide the same case in dif-

ferent ways, Conservative Souchern federal judges in the

1950s, for example, often resisted plans to desegregate

public schools, while judges with a different background

authorized bold plans. Some of the greatest disparities

in judicial behavior can be found in the area of sentencing

criminals.

Ghecks on Judicial Power

No institution of government, including the courts,

operates without restraint, The fact that judges are not

clected does not make them immune to public opinion

or to thc views of the other branches of governmenr

implementing those principles means balancing the

conflicting needs of various interest groups, raising and

assessing the costs and benetits

spending gta

ofcompl

clected: t

d alternatives. Finally, federal judges are not

tahey are appointed and are thus immune to pop-

l ontrol. role of As making careful and cautious interpretations

ontrol. As a result, if they depart from their tradi-

tio

Jaw or the Constitution mcans and

a la

Leein formulating wholly new policies, they become

unclected legislators.

we have so many lawyers, The mo

oourts for resolution, the nm

will become powertul. It i

Some people think we have activist courts because

we take matters to

bre likcly it is that the courts

s true that we have more lawyers

in proportion to our population than most other nations.

evcry 325 Americans, but only one

220 Germans, and every 8,333

There is onc lay

for every 9O De

Japanese.

ese. But that may well be a symptom, not a cause,

of court activity. As we suggested in Chapter 4, we have an

Jrure based on an emphasis on individual rights

and an implicit antagonism between the people and the

cnt. In general, lawyers do not create cases; contend-

adversary c

governme

ing intere

Furthern

tion in

orerests do, thereby generatinga demand for awvers.

we had more lawyers in relation to our popula-

n 1970, yet the courts at the turn of the

far less active in public affairs. In fact, in

1932 there werc more court cases per 100,000 people than

n 1900 than in

cenury were

in

1972.

ther

A more plausible reason for activist courts is the devel

opments discussed carlier in this chapter that have made

t casicr for people to get standing in the courts, to pay for

the costs of litigation, and to bring class-action suits. The

s and Congress have gone a long way toward allow-

"private attorneys general."

casier to get into court increases the number of

ass being hcard. For example, in 1961, civil ights cases,

prisoners' rights cases, and cases under the Social Security

relatively uncommon in federal court. Between

1961 and 1990, the increase in the number of such mat-

ters was phenomenal: the number of civil rights cases rose

more than 60-fold and prisoners' petitions increased more

than 40-fold. Such matters are the fastest-growing portion

ing private citizens to become

Makine it

of the courts civil workload.

Legislation and the Courts

An increase in cases by itself will not lead to sweeping

temedies. For that to occur, the law must be sufticiently

Vague to permit judges wide latitude in interpreting it,

and the judges must want to exercise that opportunity

fully. The Constitution is filled with words of seem-

ingly ambiguous meaning-"duc process of law," "equal

protection of the laws," the "privileges or immunities

Chapter 16 The Judiciary

414

POLICY DYNAMICS:

INSIDE/OUTSIDE

THE BOX

Telecommunications and "Decen

Interest-Group Politics

ons and "Decency":

In the more than six decades that separated the Commu-

1s Act of 1934 from the Telecommunications Act of

1934 from the Teleco hecame everyday

1906. radio, television, and the Interme t the 1934 law

*of

features of American life. The 1996 overhaul of

was a clear-cut case of inte

pitched battles over the bills that pre

were fought out mainly amonga

The politic jcally

t case of interest-gcu

p politics.

ded the 199o d

econo

were fought out mainly among and between eco

selt-interested groups. For insta

ision broadcast-

eend what kinds

None

tcable companies ove

of signals to which homes. Telephone companies fought

mpanies fought

Reno v ACLU (1997), the Supreme Court declar

that the

provisions were unconstitutional,

provisio

he Federal Communications Commiseio

In 2000etigations into the pricing policies of cable

launched inveies. The effort resulted in few chan

television companies

to industry practices. In 2012, an interfaith coalition of irel

ious leadet P

blicly petitioned five leading national

dng on-demand "aduit" cable service

hains to stop offering on-demand "adult" cahle

ed, During the 2011-2012 national elec

complied

evcle, telecoendidates of both parties; they also

cycle, telecommunications companies c

e of dollars to cand

fims in other industries as well as eornup politics, the

ch other.

As is often the case with interest-group politics, the

telecommunications policy debates involved issues that skirmished with each other over proposed

most average citizens did not understand (in this case,

"spectrum allotment," "intramodal competition," and oth-

ers) but which interest-group members lived and br

When the interest-group politics dust settled, the complex

law deregulated theit industry and fostered competition, but

it also made possible cross-media mega-corporations like

those that nc

munications services in many regions.

d breathed.

at now dominate cable broadcasting and telecom-

Crnun Pal

In the

focused less on how an overhaul of the 1934 law might

affect most people as consumers and more on Tme

V of the 1996 bill, which sought to restrict Internet and

cable television pornography. The bil's "communications

decency provisions made it into law; but, a year later, in

mid-1990s, the general ublic and the media

How important these restraints are varies from casc to

case, but in the broad course of history they have been

significant.

One restraint cxists because of the very natrure of

courts. A judge has no police force or army; decisions that

he or she makes can sometimes be resisted or ignored, ifthe

person or organization resisting is not highly visible and is

willing to run the risk of being caught and charged with

contempt of court. For example, long after the Supreme

Court's controversial decisions that school-organized prayer

and Bible reading could not take place in public educa-

tion, schools all over the country still allowed prayers and

Bible reading" Years after the Court declared segregated

schools to be unconstitutional, scores of school systems

remained segregated. On the other hand, when a failure

to comply is casily detected and punished, the courts

DOwer is usually unchallenged. When the Supreme Court

decared the income tax to be unconstitutional in l895,

collections promply ceascd. When the Court

in 1952 declared illegal President Harry Iruman's ettort to

institutions have interacted to affect policymaking in the regula-

groups aligned with the diferent sides of this debate.

PRACTICE POLITICAL SCIENCE Explain how political

nmunications. Describe the most recent issues being

hated in telecommunications policy and identify the interest

tion of

seize steel mills in order to stop a strike, the management ot

the mills was immediately returned to their owners.

Congress and the Courts

Congress has a number of ways of checking the judiciar

It can gradually alter the composition of the judiciary by

the kinds of appointments the Senate is willing to co

firm, or it can impeach judges it does not like.

federal judges have been the object of impeachm

Fifteen

hment pro-

ceedings in our history, and nine othes have resigned s who

when such proceedings seemed likely. Of the

were impeached, 8 were convicted by the e

acquitted, and 3 resigned before trial.

151

4 were

, Sam-

Senate,

uel Kent resigned from the U.S. District Court for the

Southern District ofTexas, and in 2010,

teous was convicted by the Senate and ret

office.In practice, however, contirmato

Texas, and in 2010, Thomas Por

A frott

nch

and im

ment proceedings do not make much

the federal courts because simple polly

ion

impact o

of a

disagreemen

election

maintained a huge lobbying presence on Capitol l ane

witl

or that provision of the 1996 law.

PERCEIVED COSTS

Concentrated

Entrepreneurial Polities

Distribute

Majoritarian Politics

tweaks to this

ues into

tan oct a spolers by d

mo

ng votes hom me

415

164 The Supreme Court in Action

which McCardle was in jail) unconsti

thar from happening., it passed a bill withdrawing rom the

Supreme Court appellate jurisdiction in cases of this sort.

ng from t

The Court conceded that Congress could do this and thus

dismissed the case because it no longer had jurisdiction.

Congress has threatened to withdraw jurisdiction

on other occasions, and the mere existence of the threat

may have influenced the nature of Court decisions. In the

1950s, for example, congressional opinion was hostile to

Court decisions in the field of civil liberties and civil rights,

and legislation was proposed that would have curtailed

the Court's jurisdiction in these arcas. It did not pass, but

the Court may have allowed the threat to temper its deci-

sions, On the other hand, as congressional resistance to

the Roosevelt Court-packing plan shows, the Supreme

Court enjoys a good deal of prestige in the nation, even

among people who disagree with some ofits decisions, and

so passing laws that would frontally attack it would not be

casy except perhaps in times of national crisis.

Furthermore, laws narrowing jurisdiction or restrict-

ing the kinds of remedies that a court can impose ofren

are blunt instruments that might not achieve the purposes

of their proponents. Suppose that you, as a menmber

Congress, would like to prevent the federal courts from

ordering schoolchildren to be bused for the purpose of

achieving racial balance in the schools. If you denied the

Supreme Court appellate jurisdiction in this matter. you

would leave the lower federal courts and all state courts

fiee to do as they wished, and many of them would go on

ordering busing. If you wanted to attack that problem, you

could propose a law that would deny to all federal courts

the right to order busing as a remedy for racial imbalance.

But the courts would still be free to order busing (and of

course a lot of busing goes on even without court orders),

Provided that they did not say that it was for the purpose

of achieving racial balance. (It could be for the purpose of

"facilitating desegregation" or making possible "redistrict-

ing. ) Naturally, you could always make it illegal for chil-

dren to enter a school bus for any reason, but then many

children would not be able to get to school at all. Finally,

the Supreme Court might well decide that if busing were

essential to achieve a constitutional right, then any congres-

sional lavw prohibiting such busing would itself be uncon-

stitutional. TIrying to think through how that dilemma

would be resolved is like trying to visualize two kangaroos

simultancously jumping into each other's pouches.

member of

Public Opinion and the Courts

Though they are not elected, judges read the same news-

papers as members of Congress, and thus they, too,

are aware of pub

are aware of public opinion, especially elite opinion

are not generally regarded as adequate grounds for voting

against a judicial nominee or for starting an impeach-

effort.

ment

Congress can alter the number of judges, though, and

by increasing the number sharply, it can give a president a

chance to appoint judges to his liking, As described above,

"Court-packing" plan was proposed (unsuccessfully) by

Franklin Roosevelt in 1937 specifically to change the polit-

ical persuasion of the Supreme Court. In 1978, Congress

passed a bill creating 152 new federal district and appellate

judges to help case the workload of the federal judiciary.

This bill gave President Carter a chance to appoint over

40 percent of the federal bench. In 1984, an additional

84 judgeships were created; by 1988, President Reagan

had appointed about half of all federal judges, In 1990,

an additional 72 judges were authorized. During and after

the Civil War, Congress may have been trying to influence

Supreme Court decisions when it changed the size of the

Court thrce times in six years (raising it from 9 to 10 in

1863, lowering it again fromn 10 to 7 in 1866, and raising

it again from 7 to 9 in 1869).

Congress and the states can also undo a Supreme

Court decision interpreting the Constitution by amend-

ing that document. This happens, but rarely: The Elev-

enth Amendment was ratificd to prevent a citizen from

suing a state in federal court; the Thirteenth, Fourteenth,

and Fiftcenth were ratificd to undo the Dred Scot deci-

sion regarding slavery; the Sixteenth was added to make it

constirutional for Congress to pass an income tax; and he

Twenty-sixth was added to give the vote to 18-year-olds

in state clections.

On more than 30 occasions, Congress has merely

repassed a law that the Court has declared unconstitu-

tional. In one case, a bill to aid farmers, voided in 1936,

was accepted by the Court in slightly revised form three

years later.! (In the meantime, of course, the Court had

changed its collective mind about the New Deal.)

One of the most powerful potential sources of con-

trol over the federal courts, however, is the authority of

Congress, given by the Constitution, to decide what the

entire jurisdiction of the lower courts and the appellate

jurisdiction of the Supreme Court shall be. In theory,

Congress could prevent matters on which it did not want

federal courts to act from ever coming before the courts.

This happened in 1868. A Mississippi newspaper editor

named McCardle was jailed by federal military authori-

ties who occupicd the defeated South. McCardle asked

the federal district court for a writ of habeas corpus to

get him out of custody; when the district court rejected

his nles be aeled o the Supeme Court. Congress at

eCorr micht ind the laws

P

that time was fearful that the a ed (and under

on which its Reconstruction policy was based (and under

416 Chapter 16 The Judiciary

Though it may be going too far to say the Supreme

Court follows the clection returns, it is nonetheless true

that the Court is sensitive to certain bodies of opinion,

especially of those clitesiberal or conservarive-to

Whom its members happen to be attuned. The iustices

will keep in mind historical cases in which their pred

cessors, by blatantly disregarding public opinion, very

nearly destroyed the legitimacy of the Court itselt. T his

was the case with the Dred Scott decision, which infuri-

ated the North and was widely disobeved, No such crisis

exists today, but it is altogether possible that changing

political moods affect the kinds of remedies that judges

the kinds of remedies that judges

will think appropriate.

Opinion not only restrains the courts: it may also

cnergize them. The most activist periods in Supreme

Court history have coincided with times when the politi-

cal system was undergoing profound and lasting changes.

The assertion by the Supreme Court, under John Mar-

shall's leadership, of the principles of national supremacy

and judicial review occurred at the time when the Jef-

fersonian Republicans were coming to power and their

opponents, the Federalists, were collapsing as an orga-

nized party. The pro-slavery decisions of the Tancy Court

came when the nation was so divided along sectional

and ideological lines as to make almost any Court deci-

sion on this matter unpopular. Supreme Court review of

cconomic regulation in the 1890s and 1900s came at a

time when the political parties were realigning and the

Republicans were acquiring dominance that would last

for several decades. The Court decisions of the 1930s

corresponded to another period of partisan realignment.

(The meaning of a realignment period was discussed in

Chapter 10.)

FIGURE 16.6

70

60

50

40

30

20

10

pollsters have m

of how well the Supreme Court is handl

lsters have measured changes in public erception

e Court is handling its job. The

e shown in Figure 16.6. The percentage

of p

results are snt

handline

its job has fluctuated in recent years. In the 2

public approval of the Court's performanc

who say that they approve of how the Court ie L ople

21st century,

e has be

Deen as

low as 42 percent (in 2005) and as high

t

(in 2009). These movements do not reflect any

swings in how the public perceives the Court's i

the public thought the Court was neither too li

ous

ological

tilt. Gallup polls and other opinion surveys indie.

ur-tifths of

liberal nor

Pcervative, about a third thought the Court was to:

for most of the past decade, about half to fouur ect,

liberal, and about a fifth thought it was to co to0

reaction not only to what the Court docs but also to w

the government as a whole is doing. An upturn ir

approval of the Supreme Court in the carly 1970s

probably caused by the Watergate scandal, an episode that

simultaneously discredited the presidency and boosted

the stock of those institutions (such as the courts) thr.

too conservat

conservative

public

Rarher, the shifts in opinion seem to reflect the

in public

seemed to be checking the abuses of the White Hoe

And a gradual upturn in the 1980s may have reflected a

eneral restoration of public confidence in government

during that decade.64

declines, these drops have so far not resulted in any

legal checks placed on it. As explained in this chapters

Constitutional Connections feature (see page 398), ach

Congress witnesses many proposals that restrict the juris-

diction of federal courts and prohibit them from exercis-

ing judicial review in relation to given issues, but these

Though popular support for the Court sometimes

proposals almost never become bills that make their way

Public Approval of the Supreme Court's Performance, 2000-2017

% Approve

Disapprove

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Years

2010 2011 2012 2013 2014 2015 201b

2014

Source: Gallup, "Job Approval: Supreme Court," Gallup website, www.gallup.com/pol/4732/supreme-court.aspx.