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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 power of the bench
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)
judicial independence
Judicial Independence
  • Judicial independence = judges make decisions without interference from politicians.
  • Judicial independence is a hallmark of any true democracy.
judicial review applied
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).
interpretations of the constitution
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.”
interpretations of the constitution1
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).
u s courts of appeals circuit courts boundaries
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.

selecting judges
Selecting Judges
  • Federal judges are appointed by the President and confirmed by a majority vote of the senate.
the confirmation process
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.
partisanship of judges
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.
current scotus justices
Current SCOTUS Justices












the jurisdiction of the federal courts
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)
taking a case to the court
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).