Unit 5: The President, the Bureaucracy and the Judiciary

1. Unit 5: The President, the Bureaucracy and the Judiciary Ppt. 11 – pages 519-530

2. Accepting Cases • At least once a week, the nine justices meet in conference. • Agenda – justices rely heavily on law clerks to help screen cases. If four justices agree to grant review of a case (“rule of four”) it can be scheduled for an oral argument or decided on the basis of the written record already on file with the Court. • Most common way – writ of certiorari (formal document that calls up a case from a lower federal or state court)

3. Solicitor General • Presidential appointee and 3rd ranking official in the Department of Justice, the solicitor general is in charge of the appellate court litigation of the federal government. • Staff has four key functions: • To decide whether to appeal cases the government has lost in the lower courts • To review and modify the briefs presented in government appeals • To represent the government before the Supreme Court • To submit a brief on behalf of a litigant in a case in which the government is not directly involved

4. Making Decisions • First Monday in October and lasting until June, the court hears oral arguments in two-week cycles (two weeks of hearing arguments and two weeks of reflection and writing opinions) • Amicus curiae briefs have an important role: the government under the solicitor general, may submit them in cases in which it has an interest. • For example, if a case between two parties may involve the question of the constitutionality of federal law.

5. Oral Arguments and Opinions • Lawyers may have 30 minutes to address the court. • Conference room – the chief justice raises a particular case and invites discussion, turning first to the senior associate justice. • If votes are not clear fro the individual discussions, the CJ may ask each justice to vote. • Once a vote has been reached, it is necessary to write an opinion, a statement of legal reasoning behind the decision. • Votes can be gained or lost by the content of the opinion.

6. Dissenting and Concurring Opinions • Dissenting Opinions – those written by justices opposed to all or part of the majority’s decision. • Concurring Opinions – those written not only to support a majority decision but also to stress a different constitutional or legal basis for the judgment. • When the opinions are written and the final vote is taken, the decision is announced.

7. Precedents and stare decisis • Stare decisis – “let the decision stand” – majority of cases that reach the courts are settled on this principle meaning that an earlier decision should hold for the case being considered. • Precedent – the way similar cases were handled in the past – as a guide to current decisions. Lower courts are of course expected to follow the precedents of higher courts in their decision-making.

8. What happens if precedents is unclear? • If there is a division in the court (meaning that the precedent is not clear), then you will also see the Conservative v. Liberal stand points of the justices. • Liberalism and Conservatism have several dimensions, including freedom, equality and economic regulation.

9. Judicial Implementation • Refers to whether court decisions are translated into actual policy. • Interpreting population – correctly understand and reflect the intent of the original decision (lawyers and judges) • Implementing population – who the decision is going to affect (prayer in school – school boards and school administrators) • Consumer population – those who want something taken away and those that are glad it’s been taken away (abortion)

10. A Historical Review • Pre-Civil War – questions before the court concerned the strength and legitimacy of the federal government and slavery. Favor of supremacy of the national government. • Civil War to 1937 – questions of the relationship between the federal government and the economy predominated. Court restricted the power of the federal government to regulate the economy. • 1938-present – issues of the court have concerned personal liberty and social and political equality.

11. John Marshall • Judicial Review • Marbury v. Madison • Federalist Papers, Alexander Hamilton had expressly assumed the power of the federal courts to review legislation. • Marbury was not the first case to strike down an act of Congress – lower federal court in 1792 and the Supreme Court itselfhad approved a law after a constitutional review in 1796. • Marshal was neither inventing nor imagining his right to review laws for their constitutionality.

12. The “Nine Old Men” • New Deal • Supreme Court was dominated by Conservatives who viewed federal intervention in the economy as unconstitutional. • Roosevelt proposed that since Congress can determine the number of justices, they expand the size of the court. Congress objected and never passed the plan. • Two justices began switching their votes in favor of New Deal legislation…shortly after, a justice retired and Roosevelt was able to appoint the first of many justices during his presidency.

13. The Warren Court • 1953-1969 • School segregation • Expanded the rights of criminal defendants • Prohibited organized prayer in public schools

14. The Burger Court • Nixon appointed Burger after the retirement of Warren in 1969. • More Conservative views that Nixon was hoping for by narrowing defendants‘ rights. • Roe v. Wade • Required school busing in certain cases to eliminate historic segregation • Upheld affirmative action programs • Watergate – the Supreme Court was called upon to determine if Nixon needed to turn over the tapes

15. The Rehnquist Court • Clear Supreme Court majority – Conservative • Bush v. Gore (2000) – decided the election • The Rehnquist Court limited rather than reversed rights established by liberal decisions such as those regarding defendants’ rights and abortion.