We the People 5th edition by Benjamin Ginsberg, Theodore J. Lowi and Margaret Weir

1. We the People 5th edition by Benjamin Ginsberg, Theodore J. Lowi and Margaret Weir Chapter 15. The Federal Courts

2. The Founding and the Federal Judiciary When Anti-Federalists charged that the Constitution gave the judiciary too much power, Federalists countered that the judiciary was, in fact, the �least dangerous branch� of the national government.

3. Alexander Hamilton �the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them � The judiciary � has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.� --Alexander Hamilton, Federalist #78

4. Different Character The judiciary was constructed to have a wholly different character from the Congress and the Presidency. In terms of judicial selection, judges and justices were to be insulated from political considerations. Judges and justices have life terms (�during good behavior�) conducive of judicial independence. And, as non-elected officials, judges and justices have more leeway to protect minority rights and interests.

5. Limitations Courts also have structural limitations that legislatures and executives do not. Traditionally, courts cannot provide general relief to constituencies; they can only provide specific relief to litigants.

6. Limitations, cont. A second structural limitation is that Courts lack initiative; they must wait for actual cases and controversies to be brought to them by litigants with standing before they can act.

7. Limitations, cont. Despite these traditional limitations, the American judiciary has become very influential in American politics and society. The proper role of the American judiciary is a subject of continuing controversy in American politics as, during the 20th century, liberals have generally defended judicial activism while conservatives have decried it.

8. WHAT DO YOU THINK? Are there too many lawsuits in contemporary America? What purpose does litigation serve? What are its costs? Do you think contemporary courts are too powerful in American politics? In what ways can courts be considered �above politics�? In what ways is it better to think of judges as legislators in robes?

9. The Legal System: Cases and the Law criminal law defined: The branch of law that deals with disputes or actions involving criminal penalties; it regulates individual conduct, defines crimes, and provides punishment for criminal acts. (e.g. U.S. v. Jones) civil law defined: A system of jurisprudence, including private law and governmental actions, to settle disputes that do not involve criminal penalties. (e.g., Smith v. Jones)

10. Public Law A third category of law, public law, involves cases where one party seeks to argue that the issues involved concern the extent of governmental powers and/or the rights of citizens.

11. Stare Decisis Following the principle of stare decisis, judges� and justices� goals are constrained to a degree by previous court rulings. Still, the other side of this is that when judges make precedent, they exert influence over other cases and courts.

12. The Legal System:Types of Courts Trial courts are generally the first courts to hear criminal and civil cases. Appellate courts hear the appeals of trial court decisions. Supreme courts (both the United States Supreme Court and state supreme courts) are the highest courts in a system and they usually serve appellate functions.

14. Federal Jurisdiction Most cases in the federal court system are handled by district courts which have original jurisdiction over most federal matters. original jurisdiction defined: the authority to initially consider a case (as distinguished from appellate jurisdiction to hear appeals)

15. Appellate Courts About 10 percent of cases in district court and federal agencies are accepted by higher courts for appeals. The Courts of Appeals are divided into 12 judicial circuits. Court of Appeals decisions can be appealed to the Supreme Court.

18. Article III Article III of the Constitution vests the �judicial power of the United States� in the United States Supreme Court. Although the Constitution does not stipulate as such, there are 9 Supreme Courts justices; 8 associate justices and the chief justice.

19. Selection of Judges According to the Constitution, federal justices and judges are nominated by the President and must be confirmed by the United States Senate. Though politics dominates both the President�s decision and that of the Senate, both have important Constitutional roles to perform.

20. The Power of the Supreme Court: Judicial Review If the Constitution bequeathed the Supreme Court �merely judgment,� in Marbury v. Madison (1803) the Court interpreted for itself the power of judicial review .

22. Judicial Review Judicial review is the Court�s power to determine the constitutionality of laws passed by state legislatures and the Congress. Although judicial review was used sparingly in the 19th century, the Supreme Court�s ability to effectively �veto� acts of Congress and the states is the basis for Court power in the American separation of powers system.

23. Judicial Power and Politics Although the federal judiciary was reputed to be the �least dangerous branch,� in the 20th century, the U.S. judiciary overcame several traditional limitations to become what some have complained is an imperial judiciary.

24. Historic Perspective �the judiciary is beyond comparison the weakest of the three departments of power.� --Alexander Hamilton, Federalist #78 Judicial Power was comparatively weak: 1. The judiciary lacks the �force� to enforce its decisions. 2. Insulated from political forces, the judiciary lacks �will.�

25. Structural Changes Structural changes in the judiciary alleviated some of the traditional limitations on court power. By liberalizing standing � the right to sue � the federal courts have expanded the range of potential cases that can be decided. The Court achieved greater control over its agenda in 1925 when the �Judges Bill� passed by Congress gave justices more discretion about what cases they would and would not take.

26. Class Action Lawsuits The increased use of class action lawsuits has allowed the judiciary to provide generalized relief to groups enhancing, in some respects, its ties to key groups and constituencies. Finally, justices and judges themselves have felt freer to pursue their own political agendas and, as such, they are less constrained by the prior belief that the Court should be apolitical.

27. WHAT DO YOU THINK? Did the Supreme Court seize too much power by interpreting for itself the power of judicial review? What is the value of stare decisis? How does it benefit American law? How does it legitimate courts as decision-making institutions? In what ways has the contemporary judiciary become �imperial�?

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