Introduction to American Politics Week 8 Reading and Class Notes
Introduction to American Politics Week 8 Reading and Class Notes PSC 1002
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WEEK 8 NOTES Introduction to American Politics Professor JPSC 1002 Caroline E. Jok The George Washington University Study Guide ~ Judiciary • What is judicial review? How did the case of Marbury v. Madison (1803) help create the principle of judicial review? • How has the use of judicial review evolved over the course of American history? How has it given the court a role in the policy making process? • You should be familiar with the structure of the judicial system (pp. 405 -412). • How does the Supreme Court decide whether to take a case? Does the Supreme Court have to take cases that are appealed to it? • What are the main factors that shape Supreme Court decisions? • Supreme Court decisions change over time. How does this happen? What is the role of presidential appointments to the Supreme Court? • What are some limitations on judicial power? Think about the Supreme Court in the context of separation of powers. • Why does Alexander Hamilton argue in favor of life appointments for federal judges? • Why does Hamilton des cribe the courts as the "least dangerous" branch? • According to Carp and Manning, how does politics influence a president's selection of federal judges? • According to Carp and Manning, how have President Obama's appointments affected the federal judiciary? Reading Notes ~ Logic chapter 9: The Federal Judiciary Key Terms Activism: When judges deliberately shape judicial doctrine to conform to their personal view of the Constitution and social policy Amicus curia: "friend of the court" brief filed in a lawsuit by an individual or group that is not party to the lawsuit but that has an interest in the outcome. Attorney general: head of Justice Department. Nation's chief legal officer, represents the federal government's interests in law courts throughout the nation. Also the chief law enforcement officer. Concurring opinion: written opinion by a Supreme Court Justice who agrees with the decision of the Court but disagrees with the rationale for reaching the decision. Constitutional courts: Category of federal courts vested with the general judicial authority outline d in Article III of the Constitution. The most important are the Supreme Court ], the Court of appeals, and the ninety-four district courts. Their authority derives from that of the Supreme Court and they are supposed to conform to its decisions. Court of appeals: The second tier of courts in the federal judicial system. One court of appeals serves each of eleven regions, or circuits, plus one for the District of Columbia. Court-packing plan: attempt by FDR to remodel the federal judiciary. Purpose: allev iate the overcrowding of federal court dockets by allowing the president to appoint an additional Supreme Court justice for every sitting justice over the age of seventy. Dissenting opinion: The written opinion of one or more Supreme Court justices who di sagree with the ruling of the Court's majority. The opinion outlines the rationale for their disagreement. District courts: trial courts of original jurisdiction in the federal judicial system. The ninety -four district courts are the third tier of the fede ral judicial system, below the Supreme Court and the courts of appeals. Judicial doctrine: The practice of prescribing in a decision a set of rules that are to guide future decisions on similar cases. Used by the Supreme Court to guide the lower courts in making decisions. Judicial review: authority of a court to declare legislative and executive acts unconstitutional and therefore invalid. Procedural doctrine: Principle of law that governs how the lower courts do their work. Restraint: judicial action of deferring to the policies emanating from the elected branches in the absence of a clear violation of the constitution or established doctrine. Rule of four: rule employed by the Supreme Court's stating that when four justices support hearing a case the certiorari petition is granted. Senatorial courtesy: informal practice in which senators are given veto power over federal judicial appointments in their home states. Solicitor general: official responsible for representing the U.S. government before the Supreme Court. The solicitor general is a ranking member of the U.S. Department of justice. Standing: right to bring legal action Stare decisis: "let the decision stand" Substantive doctrine: Principle that guides judges on which party in a case shou ld prevail - akin to policymaking. Writ of certiorari: An order that is given by a superior court to an appellate court and that directs the lower court to send up a case the superior court has chosen to review. This is the central means by which the Supreme Court determines what cases it will hear. Writ of mandamus: "We Command" court issued writ commanding a public official to carryout a specific act or duty. ---- Federalist Party (John Adams and Alexander Hamilton) Vigorous national government Democratic Republican opposition (Thomas Jefferson and James Madison) Less federal activity Setting the Stage for Judicial Review • Judiciary act of 1891: law designed to protect the Constitution against perceived Democratic Republican Schemes. • Increased the number of district and appeals courts and conveniently created new judgeships for aspiring federalists • Shrank the size of the Supreme Court • Judicial Review: rule acts of Congress unconstitutional • Implicitly provided in Article III • Constitution's supremacy Cl ause: Article VI • Stuart v. Laird : Congress has authority to reorganize Judiciary • Marbury v. Madison : established the Court's Coequal status among the branches of the government o Writ of mandamus: judicial instruction to a government officer o Three questions: • Does Marbury have a right to the commission? § yes • Do the laws of the united States afford him a remedy § yes • Is the appropriate remedy a writ of mandamus issued by the supreme court § No o Supreme Court does not have the jurisdiction to hear the case o Judiciary Act of 1789 attempted to add a writ of mandamus to the court's original jurisdiction, the act conflicts with the Constitution o Marbury: provided a precedent and rational for the court's broad authority to declaracts of congress and the president unconstitutional Three Eras of the Court's Judicial Review • Era 1: 1790 - 1860: only 2 federal laws were declared unconstitutional • 1920's - 30s: Court strikes down many rulings • 1960s: Court strikes down lots of laws Nation Versus State • Court generally favored national authority when conflicted with states rights • 19c. Court's major policy decisions questioned the federal government's authority via the authority of the state. • Mcculloch v. Maryland and National Supremacy o Rooted in party conflict o The power to tax involves the power to destroy o State taxation of federal property or its activities was unconstitutional o Enumerated powers: levy and collect taxes, borrow money, regulate commerce o Reversed by the Dred Scott decision. • Dred Scott v. Sanford and States' Rights o Brought the nation to the brink of a civil war: claimed African American's were not citizens under the constitution o Ruling escaped slaves had to be returned to their owners o Federal laws outlawing slavery were uncons titutional o Civil war o 14 and 15 amendments Regulating the National Economy • Issue: government's regulation of the economy • Civil war settled the supremacy issue in favor of the national government • The Primacy of property Rights o 14 amendment was adopted in 186 8 to protect newly freed slaves from the repressive actions of the former confederate states. o Lochner v. New York- struck down a new York law restricting the work hours of bakers to a maximum of 10 a day. o Great Depression, government intervenes more subs tantially in the economy o Emergency relief programs o Controlling production of coal and agricultural commodities, regulating child labor, providing mortgage relief, especially to farmers. • A National Consensus and the Court's About -Face o Court packing plan: R oosevelt's plan for revamping the judiciary o Allowed the president to appoint an additional Supreme Court justice for every sitting justice over seventy o Purpose: give Roosevelt a court majority sympathetic to his position o Plan failed o Court's rulings post ne w deal era shift power from the states to the federal government The Rise of Civil Rights and Civil Liberties • Third era: 1940s • Courts concern was the relationship between the individual and government • Free speech rights etc. A Fourth Era? Reasserting Judicial Review and a Return to States' Rights • Common factor in the previous two eras: court's broad interpretation of congress's power to regulate activity under commerce clause • Civil Rights act of 1964: barred segregation and di scrimination in all forms of public accommodations • United States v. Lopes: Court struck down legislations exceeding Congress's powers under the commerce clause • United States v. Morrison: Court struck down part of the violence against moment act as beyonhet scope of congress's commerce clause power on the ground that gender motivated crimes of violence were not in any sense economic activity. • Supreme court enlists its judicial review prerogative broadly • Court must determine whether the agency conformed to guidelines The Structure of the Federal Judiciary • US has several hundred federal courts constitutional courts: vested with general judicial authority outlined in article III • Exercise the same power of judicial review available to the Supreme Court • Lower federal courts weigh the merits of a case against prescribed Supreme Court doctrine and arrive at thee same decision the supreme Court would have Jurisdiction of the Federal Courts • Federal courts are courts of limited jurisdiction • Authorized to hear 2 type s of cases: o Federal questions • Questions of U.S. Constitutional law o those involving citizens of different states. • Criminal and civil cases The Supreme Court's Delegation • District court (base of federal judiciary) o Every state has t least 1 o Trial level courts • Court of appeals (level two) o Thirteen o 158 active judges • Supreme Court is the court of final appeal o Few administrative controls o Implementation of the supreme court's policies are not guaranteed and depends greatly on the degree to which the justices concur in a course of action and clear communication The Limits of Internal Control • Only congress can remove a federal judge o Not for policy disagreement with the Supreme Court • Supreme Court can't redistribute case load • Supreme Court can reverse lower court decisions when it disagrees • Frequent reversals may damage their reputation • Supreme Court's ability to control the number of cases it hears on appeal Judicial Decision Making • Supreme Court decides fewer than 100 cases annually • As long as the appeals courts' judgments agree with the policies of the supreme Court, the latter is free to act as a "general staff or selective formulator of policies" Selecting Cases • Rules have been strengthened in favor of giving the Court greater disc retion to choose the cases it reviews • Writ of certiorari: requesting that the Court order a lower court to send it the records of the trial in question • Rule of four: when four justices support hearing a case, the certiorari petition is granted. • Small retinue of law clerks: each justice can have up to four • Justices want to weigh in on cases in which they think the lower courts have made error • Resolving Lower-Court Disagreements o Highly decentralized o Justice look for cases they can use to resolve ambiguities and conflicting lower court decisions • Taking Cues from Others o Justices economize by paying close attention to what others tell them o Allows interested groups not party to the litigation to submit amicus curia briefs arguing that a certiorari petition should be granted or denied o Solicitor general: administration lets the court know which cases it thinks are important o Amicus curiae briefs from prestigious sources increases a case's chances of being accepted by the court Doctrine: Policymaking by the Court • Public law typically assigns responsibilities and appropriates money to a federal agency • Judicial policy decision: states a role or doctrine - Judicial doctrine • Provides valuable information for estimating how far lower courts can diverge from the Supreme Court's preferences before being reviewed and overturned • Judicial doctrine: o Procedural doctrine: governs the specific ways in which the lower courts should do their work o Substantive doctrine: more akin to policy making, guides judges on which party in a case should prevail. • Procedural Doctrine o Stare decisis: let the decision stand o Follow established precedent in deciding current cases o Griswold v. Connecticut: case established the implicit right of privacy. o Stare decisis: lower courts find it easier to extend the Supreme Court's preferences • Can't strictly determine the outcome of many cases o Only those cases in the state courts that raise a constitutional question at the outset may be appealed to the federal judiciary after a loss in the state courts. • Substantive Doctrine o Identifying standards and general characteristics of cases that will a decision to be applied to government policy as well as to future cases. o How to define Obscenity? o Judge who in absence of a clear violation of the Constitution or established doctrine will defer to the policies from the elective branches = judicial restraint o Those who change doctrine to conform with their view of the constitution in a changing society = judicial activism Deciding Doctrine • Two elements o Vote that decides the case in favor of one of the parties o Opinion: statement or set of statements in which the majority explains the rationale for its decision in a way that creates doctrine • Unanimous court decision creates a more compelling precedent • Majority opinion is drafted and undergoes prolonged internal bargaining • Cost of successful persuasion: change the opinion's language and maybe blur the message • Closely divided decisions is a modern development • All justices wish to influence future decision s: each has an interest in opinion writing • Justice who disagrees with the majority of the court may explain why in a dissenting opinion • Concurring opinion: unique reasons for supporting the majority • Only majority opinion counts The Supreme Court's Place in The Separation of Powers Absence of Judicial Enforcement • Absence of enforcement authority has allowed Congress and the President to ignore supreme court rulings at times • Court's inability to enforce its decisions is apparent in the failure of Immigration and Naturalization Service v. Chadha • Bureaucrat is free to design a policy within broad guidelines - if it drifts too far away from the legislature's intent: Congress can rescind it by passing a resolution Constitutional and St atutory Control • Power to rein in the Supreme Court when they disagree with its decisions • Article II: congress sets the jurisdiction of the Court and may create lower courts • Constitution is silent on the size of the Supreme Court • Congress may move to amend the constitution • Legislative responses to disagreeable supreme Court interpretations to public laws are straightforward and routine • Congress can override the Supreme court Department of Justice • Department of Justice assumes primary law enforcement respons ibilities for the federal government • Attorney general = head of the department o Includes U.S. attorneys • US attorneys uncharacteristic of other government agencies • US attorneys depend on the attorney general and the white house for their job security Judicial Recruitment • All federal judges are nominated by the president • Traditionally deferred on district court nominations to the senators • Quality appointees will more effectively represent the president's view on the high bench • Presidential Appointments o Senatorial courtesy: letting the senators appoint district attorneys o Presidents rely on the department of Justice to screen candidates for the courts of appeals. o President's impact on the composition of the court depends on frequency with which vacancies arise. o Predicting a future justice's votes is hard o Reduce uncertainty: selected nominees form the presidents party o Vacancies may also reward a political ally or personal associate. • Senate Confirmation o Once president has named someone, Senate Judiciary Co mmittee schedules confirmation hearings so that it can make a recommendation to the full chamber o When the same party controls the presidency and the senate, the nominations are smooth o Toward the end of a president's first term opposition controlled senate becomes so deliberative that nothing happens until the senators know the identity of the next president. o Confirmation veto: offers an opposition controlled senate more influence than the generally small number of rejected nominees would indicate • Turnover as the Source of shifting judicial Ideology o When one party dominates the presidency, the cumulative impact of new appointments on the ideological complexion of judicial policy can be great o The impact may be indirect at first, and take time to settle in. o The effect of presidential appointment and Senate confirmation in the steering the judicial branch on the same ideological course as elections move the executive and legislative branch is easy to follow in the turnover of the Small supreme court o Judges are appointed for life: any given moment, the collective preferences of the judiciary may be significantly different from those politicians who occupy congress in the white house. Who Guards the Guardians? • Limitations on the absoluteness of judicial review s • Enforcement depends on compliance of other institution • Congress can nullify and adverse judicial decision by writing new public law that addresses the court's concern or achieves the same goal in a different way • Close inspection: o Limited veto authority o Large case load o Lack of enforcement authority o Life tenure o Ill designed to formulate and implement public policy • Doctrine of judicial review has worked because it does not foreclose effective responses from the other branches. Class 14 Notes ~ Organization of the Judi ciary • The role of the Judiciary is not equal in all democracies Every functioning community needs a judicial community of some kind • • Courts come up with answers to help us coordinate our understanding of what the law means. • What is controversial about the supreme court? o They aren't elected o They are Federal judges/justices for life o Judicial Activism o Provisional Review o More Privatized - "Deliberate in secret" • Is there value to giving the court independence? • What limits the courts power? • Are there ways that the court remains it's accountability? • Federal Judiciary: o Federal courts are dealing with violations of federal law o Statutory Interpretation: what does the law mean?; Can rise to the level of the Supreme Court o Civil Cases: (mostly state and local) o Law suits at the Federal level tend to involve citizens of more than one state and involve claims of $50,000 or more • State Court v. Federal Court o Federal Court levels • Trial Court (Federal District Court) § Case load is large Appellate Court: Courts of appeal s • § Supposed to review cases to decide whether there were improper procedures used at the Trial court level. • Supreme Court § Not a large number relative to the other courts and early American history How a law becomes a case • Federal Court Level o US attorney is the prosecutor (93 of them, appointed by Pres) o 13 Appellate court (Geographically organized) o If need be, can be brought to the Supreme Court • Some cases come through the state system. • Getting to the Supreme Court o Original Jurisdiction: Supreme Court is the first to hear a case • EX: over all controversies involving 2 or more states? • EX: Cases involving ambassadors and other foreign emissaries. Process by which course gets to the supreme court • How does the Supreme Court decide to hear a ca se? o How many Justices need to agree? 4 • Grant a writ of Certiorari: granting cert. § Not granted? Lower courts decisions stand o May have different appeals courts arriving at different decisions o Solicitor General: argues the Federal Governments case before the Supreme Court • Can signal Federal governments' interest in a particular case. • Part of the Executive branch • Case accepted • Briefs filed by parties in the case and interested parties (amicus briefs) • Oral Arguments (1 hr per case) • Drafts/edits/comments circ ulated o Majority decision/minority decision o Dissenting opinion (minority) o Concurring Opinion • Remanded: Sent back to the lower courts • If they want to send a clear signal they have an incentive to create as clean of a statement as possible Factors that affect how the supreme court makes decisions • Precedent: Basing decisions off of past decisions • Stability in the legal system which gives credibility • Values/Beliefs and Ideology of the Court at the time (Judges) • Imposition of costs - what are the stakes? Who is affected? • The president's viewpoints (who they put on the court) Main Challenge of the court? • Compliance Reading Notes ~ Hamilton (9 -3) 9 - 3 Federalist No. 78 Alexander Hamilton: • Judiciary is the least democratic: least responsive to the expressed preferences of the citizenry • Supreme Court: unelected judges enjoy lifetime appointments • Alexander Hamilton says it is the Least dangerous branch o Doesn't control military o Can't confiscate citizens' property through taxation • Judiciary is a critical role in safeguarding the constitution against congressional and presidential encroachments - he assumed tat the Supreme Court has the authority of "judicial review" even though there was no provision for it in the Constitution The mode of appointing judges The tenure by which they hold their places • Duration in office o Good behavior o Steady, upright, impartial administration of the laws • Provisions for their support • Precautions for their responsibility The partition of the judiciary authority between different cou rts and their relations to each other • In a government where the judiciary is separated from each other, by the nature of its functions, it will always be the least dangerous to the political rights of the constitution • Judiciary is merely judgment and must ultimately depend on the aid of the executive arm • Consequences: o Judiciary is the weakest of the three departments of power o Can never attack with success either of the other branches o Defend itself against attacks o Individual oppression may now and then pro ceed from the courts of justice o General liberty of the people can never be endangered from the judiciary as long as it remains distinct from the other branches Liberty would have everything to fear from its union with the other branches • • It is in continual jeopardy of being over powered • Nothing can contribute so much to its firmness and independence as permanency in office Limited Constitution: • Expectations to legislative authority: o Shall pass no bills of attainder o No ex post facto laws • Limitations can be reserved in practice no other way than through the medium of courts of justice • Superiority of the judiciary to the legislative power o Authority which can declare the acts of another void • Every act of a delegated authority is void • No legislative act contrary to the constitution can be valid • The Courts were designed to be an intermediate body between the people and the legislature to keep the legislature within the limits assigned to their authority • The judges regard the constitution as a fu ndamental law • The constitution is preferred to the statute • The power of the people is superior to both • Where the will of the legislature declares statues • The judges are governed by the constitution rather than the people • Judicial discretion: determining between two contradictory laws • Rule of construction: o If two rules conflict it is up to the courts to determine their validity and which shall be preferred • However if the rules interfering are of a superior and a subordinate authority, the superior takes precedence. • The independence of the judges is to guard the constitution and the rights of individuals from the effects of ill intent or the influence of individual groups • The independence of the judges is an essential safeguard • Judicial magistracy mitigates the severity and confines the operation of unjust and partial laws. It operates as a check upon the legislative body passing the laws. • Permanency of judicial position: the nature of the qualifications they require • The voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. • There are few people who have the sufficient skill to serve as judges on the supreme court. Reading Notes ~ Manning (9 -4) 9-4 Selecting Justice: The Ideology of Federal Judges Appointed by P resident Barack Obama Robert A. Carp and Kenneth L. Manning • Authority to appoint federal judges gives presidents an opportunity to continue the influence national policy long after they have left office • Other considerations: ethnicity and gender, sponsors hip, political deals with senators Obama's Nomination of Michael P. Boggs: upset many because his views were not aligned with Obama's party. • Part of a bipartisan deal brokered between the White House and Republican Senators • Debate: Is Obama packing the courts or is Obama working in a bipartisan fashion to nominate qualified, mainstream/liberal judges? • 2 questions: o What should we anticipate of the Obama administration's motivation and potential to make an ideological imprint on the federal courts? o What do the empirical data tell us about the way the Obama judges have been deciding cases during their time on the bench? • 4 factors determine whether chief executives can obtain a judiciary that is sympathetic to their political values and attitudes: o Degree of the president's commitment to making ideologically based appointments o Number of vacancies o Level of the Chief executive's political clout o Ideological climate into which the new judicial appointees enter. Presidential Support for Ideologically Based Appointments • Depth of commitment: o Pay attention to specific ideologies • Important for not only the supreme court but also trial and appellate judges o Harry Truman: strong political views - but when selecting judges, he placed a candidate's loyalty to the president ahead of the candidate's overall political orientation. o Regan, Johnson, Bush: selected judges w/ ideological beliefs. o Obama's nominees: have not all aligned with his views (tightly) Sotomayor: first Hispanic woman • • Elena Kagan: "boring" (disappointed many liberals) • "lethargy on judicial nominees" • Obama has avoided political battles and by selecting a number of nominees who have not had especially controversial pasts The Number of Vacancies to be Fil led • More judges = greater potential for the White House to put its stamp on the judicial branch o How many judicial vacancies are inherited from the previous administration o How many die/resign during the president's term o How long the president serves o Whether congress passes legislation to increase the number of judgeships • Most important • Tend to be created during period when one political party has more control • Obama tends to leave spots vacant for a long time • Republicans in the Senate have slowed the nomination process The President's Political Clout • Scope and degree of the presidential skill in overcoming political obstacles - aka the senate o Obama • Have taken more time • Have been more successful • Most notable shift in the power struggle over judges between the Senate and the White House in November 2013: Democrats changed the Senate rules and eliminated the possibility of a filibuster for lower court nominations • Blue-slip process: when a judge is nominated by the president, the chair of t he Senate Judiciary Committee sends a form to home -state senators seeking their approval of a judicial nominee if they approve, the committee may move forward, if they do not, the nomination stalls. (institutional norm) Judicial Climate the New Judges E nter • Philosophical orientations of the current sitting district and appellate court judges • Federal judges serve lifetime appointments during good behavior, presidents must accept the composition and value structure of the judiciary as it exists when they t ake office. • If it already reflects the president's political and legal orientations, the impact of the new judicial appointees will be immediate and substantial • Radically different: impact will be weaker and slower to materialize • New judges must respect t he controlling legal precedents and the constitutional interpretations • Regan: Large impact on the judicial branch • Clinton: slower manifesting impact Sources and Definitions • Conservative o Prefer to limit civil rights/liberties [ok this is obviously written by a liberal] • Liberal o Broadening positions to extend freedoms: civil rights and civil liberties Traditional Versus Nontraditional • Non traditional: women/minorities • Women and minorities might be somewhat more liberal in their voting patterns than their white male counterparts • Recent presidents have appointed nontraditional judges in record numbers • Obama has made non traditional selection a high priority Conclusion: • Despite the delays and slowdow ns in the appointment process itself, the president is having a significant impact on the ideological orientation of the federal judiciary (realm of economic and labor) Class 15 Notes ~ Supreme Court Justices: Have other ways of thinking about how they make their decisions • Their Job is to interpret the Constitution /evaluate the constitution Can overturn Congress or the President - pays deference to the political view of the current court What evidence do you use? • Conservative Justices - originalism, textualism o Job of judges is to interpret the text in front of them o Intent of the founders and history is irrelevant • Liberal Approach - o Not just the text that matters o Consequences of applying the text in contemporary society o Underlying history etc. o If you focus solely on the text, you may misconstrue what congress meant when they wrote the law. o May be called to interpret laws in ways that the plain text can't help you Sincere Vs. Strategic • Is strategic behavior always necessary? No • Strategic behavior may involve co mpromise and negotiation • Public Opinion o Decisions of what people are willing to accept pose risks • Will people obey? • Court's legitimacy may suffer o Abortion, same sex marriage etc. • Court is conscious of the climate that it is operating in. What facilitate s power and what limits power? • Facilitates o Legitimacy o independence • Limits o Constitution: • Lays out a set of rights and language to enforce those rights Not easy/possible to invent rights (except the right to privacy) • o Checks and balances (ways in which judicial independence is affected) Court is (to some extent) an agent of elected officials The Judiciary is in the least of capacity to affect the government via bureaucracy Has no influence over sword or purse.