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The Judiciary. Constitutional Underpinnings and Evolution. Basis of Power is Found in Article III Supreme Court Congress given power to create lower courts National Supremacy and Slavery Marbury (1803), McCulloch (1819), Dred Scot (1857) Government and the Economy

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constitutional underpinnings and evolution
Constitutional Underpinnings and Evolution
  • Basis of Power is Found in Article III
    • Supreme Court
    • Congress given power to create lower courts
  • National Supremacy and Slavery
    • Marbury (1803), McCulloch (1819), Dred Scot (1857)
  • Government and the Economy
  • Government and Political Liberty
  • The Revival of State Sovereignty
judicial overview
Judicial Overview
  • Judicial Review – the power of courts to declare laws unconstitutional
  • Judicial Restraint Approach – judges should decide cases strictly on the basis of the language of the Constitution
  • Activist Approach – judges should discern the general principles underlying the Constitution and apply them to modern circumstances
the dual court system
The Dual Court System
  • Judge made law:
    • Common law based initially on the prevailing custom and eventually on legal precedent.
      • stare decisis: to stand on decided cases.
  • Statutory law
    • Civil law
    • Criminal law
    • Public law
the federal court system1
The Federal Court System
  • Basic Judicial Requirements
    • The federal courts have jurisdiction in cases that meet one of the following criteria:
      • The case involves a federal question
      • The case involves diversity of citizenship
    • Standing to Sue
      • Must have suffered injury or threat of harm
      • Justiciable controversy
    • How cases reach the court
      • Writ of Certiorari
        • “rule of four”
        • Only 1 or 2 percent of cases taken
which cases reach the supreme court
Which Cases Reach the Supreme Court?
  • Original Jurisdiction
    • Dispute between the United States and a state
    • Dispute between two states
    • Disputes between foreign ambassadors and diplomats
    • A state and an individual from another state
  • Appellate Jurisdiction
    • When two lower courts are in disagreement, or a lower court’s ruling conflicts with an existing Supreme Court ruling
    • When a case has broad significance
    • When the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law
    • When a federal court holds an act of Congress unconstitutional
selecting judges
Selecting Judges
  • Appointment by the president with advice and consent of senate
    • Lifetime appointments on good behavior
  • Senatorial Courtesy
    • Gives heavy weight to preferences of senators from state in which judge will serve
  • The “Litmus Test”
    • test of ideological purity
    • sharp drop in the percentage of nominees confirmed
the supreme court in action
The Supreme Court in Action
  • Solicitor General
  • Petitioner vs. Respondent
  • Brief
  • Amicus curiae
  • Per curiam opinion
  • Opinion of the court
  • Concurring opinion
  • Dissenting opinion
what checks our courts
What Checks Our Courts?
  • Executive Checks
    • Appointments
    • Execution of law
  • Legislative Checks
    • Constitutional amendments
    • Revision of laws
  • Public Opinion