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The Judiciary

The Judiciary. The Power of the Bench. In the United States judges play a large role in making public policy. An independent judiciary must exist for courts to play a significant role.

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The Judiciary

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  1. The Judiciary

  2. The Power of the Bench • In the United States judges play a large role in making public policy. • An independent judiciary must exist for courts to play a significant role. • Judicial review allows federal courts to declare acts of Congress and acts of the executive branch illegal. (Marbury v. Madison)

  3. Judicial Independence • Judicial independence = judges make decisions without interference from politicians. • Judicial independence is a hallmark of any true democracy.

  4. Judicial Review Applied • The right of federal courts to practice judicial review is no longer controversial. • HOW the federal courts conduct judicial review is extremely controversial. • Loose (activist) v. strict constructionist approaches to the Constitution – not necessarily the same as liberal and conservative judges (but there is a link).

  5. Interpretations of the Constitution • Strict-constructionists: believe “judges should judge” not make policy – narrow interpretation of government powers beyond the expressed powers (limited use of Elastic Clause). • Also called “originalists.”

  6. Interpretations of the Constitution • Loose-constructionists believe judges should rule based on the Constitution’s underlying principles – broad interpretations of government powers beyond expressed powers (also called an activist approach).

  7. Structure of the Federal Courts

  8. U.S. Courts of Appeals (Circuit Courts) Boundaries A judgeship on the D.C. Circuit court is thought of as a stepping-stone to the U.S. Supreme Court.

  9. Selecting Judges • Federal judges are appointed by the President and confirmed by a majority vote of the senate.

  10. The Confirmation Process • Of late, Presidents have attempted to select judicial nominees who match their political philosophy. • The hot issues are (SURPRISE!) abortion, affirmative action, and vouchers. • Studies show ideology does impact a judge’s behavior, but other factors also play a role.

  11. Partisanship of Judges • Political “litmus tests” are used to select/support/oppose nominees. • Political litmus test = a question asked of a judicial nominee to determine his or attitude about particular issues. Often the question is about the “right to privacy.” This can be code for abortion rights.

  12. Currently 5 White males, 1 Black male, 2 White women and 1 Hispanic woman

  13. Current SCOTUS Justices BACK Sotomayer Breyer Alito Kagan FRONT Thomas Scalia Roberts Kennedy Ginsburg

  14. The Jurisdiction of the Federal Courts • Our dual court system (state and federal) causes us to consider jurisdiction. • Federal court jurisdiction is described in Article III and the 11th Amendment. • Federal courts hear all cases that are: • Federal question cases (treaty, Constitution, federal law) • Diversity cases (citizens of different states)

  15. Taking a Case to the Court • Taking a case to the Supreme Court is costly in terms of attorneys’ fees. etc. Indigent (poor) claimants may file in forma pauperis (as a pauper). • Fee shifting helps some individuals cover court costs. (Loser pays the costs.) • If the matter is civil in nature, interest groups may cover the costs. • Law firms may take on a case pro bono (for free).

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