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Judiciary. POSC 121 Braunwarth. Displacement of Political Conflict. “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” (Alexis de Tocqueville, 1835) This is a primary source of judicial power

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POSC 121


displacement of political conflict
Displacement of Political Conflict

“Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” (Alexis de Tocqueville, 1835)

  • This is a primary source of judicial power
  • This is particularly true for controversial issues and when a minority suffers at the hands of the majority
  • Abortion, Civil Rights, Criminal Rights, etc.
  • Founders wanted to make sure that no leader took on too much power
  • Created a fundamental law that can’t be transgressed
  • Constitution protects our popular sovereignty
  • But there is no mechanism in the Constitution to ensure that it is followed
  • This was determined through the decision of Marbury v. Madison
marbury v madison the roots of judicial review
Marbury v. Madison, the roots of Judicial Review
  • A minor Federalist judicial appointee, William Marbury (right)
  • Sued the Jefferson’s Anti-Federalist Secretary of State James Madison for his appointment
  • Chief Justice of the Supreme Court, Federalist James Marshall, is in a tough position.
  • If he rules for Marbury he looks partisan and weak, especially if Jefferson ignores the ruling.
  • If he rules for Madison, the court looks subservient to the executive branch.
  • In a brilliant legal maneuver, Marshall declared the entire case to be “Unconstitutional” because Sect. 13 of the Judiciary Act of 1789 unconstitutionally expanded the Court’s scope of Original Jurisdiction
  • Thus expanding the Court’s power of Judicial Review
power of judicial review saffell article
Power of Judicial Review (Saffell article)
  • Judicial Activism: When the courts use the power of Judicial Review to reshape laws
  • Judicial Restraint: Interpreting the Constitution strictly and deferring to the elected branches when possible
  • Some arguing for restraint, contend that justices should follow the “original intent” of the framers of the Constitution
  • What’s the argument against original intent?
  • That times have changed and those arguing for original intent want to turn back the clock
  • Why does the Court occasionally need to act in an activist manner?
  • They may be protecting unpopular groups
  • Legislators may be beholden to the tyranny of the local majority
justifying countermajoritarian power
Justifying Countermajoritarian Power
  • Shortly after the Supreme Court has made a controversial and widely unpopular decision on the rights of criminal suspects, a justice agrees to a television interview. The justice sets out to justify to the public the Court’s enormous power and lack of accountability.
  • Write a script for the justice. How will the justice explain the Court’s countermajoritarian role? How will the justice justify the Court’s secrecy and lack of direct accountability?
countermajoritarian power
Countermajoritarian Power
  • The system is designed to ensure that justices do NOT answer to the majority, why?
  • Job is to defend the Constitution, which protects all of us
  • Should not be swayed by the passions and prejudices of the majority
  • They have the expertise
  • Were appointed and approved by elected officials
  • Only way to protect the minority
judicial mechanics
Judicial Mechanics
  • Many more cases are appealed to the Supreme Court than the court can possibly hear
  • Decide to hear cases by “the rule of four”
  • The federal Solicitor General can request that the court hear cases important to the executive branch
  • Typically only hear cases that deal with fundamental constitutional principles and affect large numbers of people
  • Supreme Court decisions establish “precedent” (stare decisis) for all future cases
judicial selection
Judicial Selection
  • How are Federal Judges selected?
  • By the President and approved by the Senate
  • Important power because gives the President a chance to have an impact beyond his term of office
  • They thus choose someone of similar ideology
  • But judicial ideology may evolve later
  • Appointments have become increasingly political
california court system
California Court System
  • Similarly organized as the U.S. system
  • Operates independently of the national system
  • First level of trial courts are known as Superior Courts
  • Vast majority of cases are decided by plea bargain.
    • Only way to deal with the massive caseload
    • Some concerned people get off too easy
    • Others concerned innocent may admit guilt to lesser charge rather than chance a trial