The Judicial Branch

1. The Judicial Branch

2. Federalism= 51+ court systems Federal courts deal with federal law and the US Constitution State courts deal with state laws and state Constitutions

3. Federalism= 51+ court systems Federal courts deal with federal law and the US Constitution State courts deal with state laws and state Constitutions

4. Difference between trial and appeals courts Trial courts • Have juries • See evidence • Decide facts Appeals courts • Review how law was interpreted and applied at trial • Can overturn verdict of lower court if law was incorrectly applied

5. Federalism= 51+ court systems Federal courts deal with federal law and the US Constitution State courts deal with state laws and state Constitutions

6. Federalism= 51+ court systems + Separate federal courts to deal with bankruptcy, military law, and tax law Federal courts deal with federal law and the US Constitution State courts deal with state laws and state Constitutions

7. How do judges get their jobs? • All federal judges appointed by the president and confirmed by the Senate • Serve for life • Can be removed for high crimes & misdemeanors

8. How do cases get to the Supreme Court? • Rules of access: • Controversy • Standing • Mootness • Writ of Certiorari • Original jurisdiction • Discretion

9. What cases is the Supreme Court more likely to take? • Cases appealed by the Solicitor General • Cases in which two Appeals courts have ruled differently in two different circuits • Cases in which major actors in society are parties to the case • Cases dealing with the Bill of Rights

10. How do judges make decisions? • Stare decisis: let the precedent stand

11. Powers of the judicial branch • Constitution

12. What does the Constitution say? • The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” • “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Article III: Sections 1 and 2

13. Powers of the judicial branch • Constitution • Judicial Review: Marbury vs. Madison • Checks and balances

14. Checks and balances The judiciary’s powers • Can declare laws and executive actions unconstitutional Checks on the judiciary • Rules that limit standing in federal courts • No enforcement powers • Shaped by Congress and the president • Congress affects size and jurisdiction

15. The ‘Least Dangerous Branch’ • “The interpretation of the laws is the proper and peculiar province of the courts…If there should happen to be an irreconcileable variance between [a law and the Constitution], that which has the superior obligation and validity ought of course to be preferred, or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents…This conclusion [does not imply] a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both…” Hamilton, Federalist 78

16. The ‘Least Dangerous Branch’ • “The courts on the pretense of a repugnancy may [not] substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of the two contradictory statutes…The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body…” Hamilton, Federalist 78

17. The ‘Least Dangerous Branch’? • Judicial activism: Willingness to overturn precedent and laws • Judicial restraint: Deference to elected representatives and precedent

18. In pairs: Do you think that judges should be guided by judicial activism or judicial restraint? What are the dangers of an unelected judiciary that is happy to overturn laws and precedents? What are the dangers of interpretation that always defers to precedent?