Supreme Court • Holy temple with priests wearing black robes. Very strange in a democracy • Perception of Judges as non-political • What role should an unelected institution play in a democracy?
Constitutional Debate • Hamilton, Fed #78 • the least dangerous branch • holds neither the purse nor the sword • Lifetime appointment • Brutus, Anti-federalist • unelected judiciary • no room for appeal • all powerful expansive judiciary which will subvert state rights
Imperial Judiciary or Least Dangerous Branch? • What is judicial review? • Can the Appeal and Circuit courts exercise judicial review? • Are there any constitutional limits on judicial review? • Can congress or president overturn ruling with 2/3rds vote? 3/4ths votes? • Does it happen very often? Why?
How does a case get to the Supreme Court? • How many cases does the Supreme Court hear per year? • What procedure do judges use? • What happens if Supreme Court does not hear a case? • Why do the justices agree to hear one case and not another? • How much discretion do they have? • What are “political questions”?
How the Court Decides • Oral argument • Conference • Opinion writing • Forming a majority • Brown v. Board of Education • What are you doing for Lunch • Call me a second rate intellect will you • Dissents and concurring opinions • Remedies
How do Justices decide? • Leaning Left • David H. Souter, Stephen G. Breyer and Ruth Bader, Ginsburg voted together 62% • Leaning Right • Anthony M. Kennedy, Sandra Day O'Connor and William H. Rehnquist voted together 64 % • Left • John Paul Stevens dissents on ½ of cases • Right • Thomas and Scalia voted together 82%
Confirmation Mess • Original Intent/Judicial Restraint • Limits of Judicial Power
Nominating SC Justices • What is the constitutional process? • How and why has it changed in recent years? • The kabuki dance of “advice and consent” • Clarence Thomas- I have never thought about Roe v. Wade. If I did though, I wouldn’t tell you. • Start of the Retirement/Death Watch
SC’s Appointment Process • President nominates, Senate confirms based on “advice and consent” • Constitution is removed from political process • Not elected; Senate not house • Process has changed, become more political • Nixon southern strategy, Reagan Relig Right • Litmus tests for appointments • Campaigns for confirmation
Litmus test for SC Nominees • No • Judicial skills • Undermines constitutional system • No reason to treat court’s decisions as authoritative • Yes • Everyone else is doing it • Process has always been political • Independence comes after nomination
Consequences of Confirmation Mess • The kabuki dance of “advice and consent” • Clarence Thomas- I have never thought about Roe v. Wade. If I did though, I wouldn’t tell you. • Increased delays • Reduced activity • Robo or Techno Judges • Thurgood Marshall vs. Clarence Thomas
Political Checks on Judiciary • Presidents • Congress • The Tom Delay view • Judicial Vigilantes • How have judicial conservatives attempted to restrain the court?
Interpreting the Constitution • What does original intent mean? Judicial restraint? • How do you identify original intent? • Why should judges use original intent? • What are the arguments against original intent? • Do conservative justices practice what they preach?
Brown v. Board of Education • How did Justices take political considerations into account? • Why did they do it? • What were consequences?
Implementation • Courts have few tools to force compliance with rulings • Implementation through the Courts • Gideon v. Wainwright • Implementation through states • Engel v. Vitale • Brown v. Board
Limits on Judicial Review • Are Self Imposed • Judicious use of power • Refuses to get involved in “Political questions” • Delays rulings till controversy dies down • Roche-- “The court’s power has been maintained by a wise refusal to employ it in unequal combat”
Conclusion • the least dangerous branch or an imperial judiciary? • The Tom Delay view • But . . . • a government of limited powers • a written constitution • the court exercises a good deal of restraint • possible to impeach judges