Week 5 - The Judiciary

Question 1

What are the three levels of the Federal Court within the US?

Answer 1

Federal District Courts, Federal Appeals Court and Supreme Court

Question 2

Outline the Federal District Court

Answer 2

• 677 district judges in 94 courts
• Trail courts and this is the first place of call
• There is usually one judge who hears a particular case and then rules on it
• About 360,000 federal cases per year that go through the 94 courts; around 80% of these are civil and 20% are criminal

Question 3

Outline the Federal Appeals Courts (Circuit Court)

Answer 3

• There are 179 circuit court judges, and there are 11 geographical circuits and federal circuits
• It is a panel of three and works on majority rule
• They see around 55,000 annually
• The Washington DC Court covers the higher cases
• People can take cases that they don’t agree with on the Federal District to the Middle Level and then have them rule on it

Question 4

Outline the Supreme Court

Answer 4

• There are 9 Justices on the Court; there does not have to be a particular number
• Once the justices are elected they have a lifetime tenure
• Each Justice gets around 3 -4 clerks and have around 200 staff each
• The Supreme Court is the only Court that can choose their cases; there are around 10,000 cases put in and they normally choose around 85 per year which they believe are the most important and will bring resolution to some undecided constitutional question
• At least 4 judges need to choose to hear a case

Question 5

What is Judicial Review?

Answer 5

The ability of the judicial branch to ensure that legislation and executive action is consistent with established law - constitution, statute, common law principles and precedent

Question 6

What is Judicial Supremacy and how does it link to Judicial Review?

Answer 6

Judicial Supremacy highlights the supremacy of the Constitution over all other law. Therefore, it emphasises the idea that the sole principle of the Court is to say which is and is not conceptional and the concept that the court can nullify laws which are deemed to be inconsistent with the Constitution.

Question 7

Where did the implicit meaning of Judicial review come from? (Two elements)

Answer 7

1) Alexander Hamilton in Federalist 78 said that ‘the Constitution must be regarded by the judges, as a fundamental law’.
2) Marbury vs Madison was a supreme Court cases where Chief Justice John Marshall said that it “is emphatically the province and duty of the Judicial department to say what the law is”

Question 8

What cases have lead to rhetorics on a tyrannical judiciary?

Answer 8

I) The Civil Rights Cases in 1883 ruled that the Civil Rights Act of 1875 was unconstitutional and said that racial discrimination could not be banned i.e. Congress cannot force states to guarantee black civil rights and a consequence of this was Jim Crow laws

II) Lochner vs New York (1905) ruled that Labour protections are unconstitutional as they violate ‘freedom of contract’ and therefore for the next 30 years, the SC regularly struck down cases on workers rights

Question 9

In what circumstances can a Supreme Court Ruling be overturned?

Answer 9

I) If the decision is based on a law that Congress has passed, Congress can simply change the law. The Court sometimes has to rule on how they think laws made by Congress apply to certain cases - if congress thinks the Court has got it wrong, they can change the law to make things clear

II) If the decision is based on the Constitution, then the Constitution can be amended

III) The most common is a later Supreme Court overturning a previous decision that they now regard as unconstitutional i.e. the Courts decisions in Brown vs Board of Education overruled the decision it made 58 years before in Plessy vs Ferguson

Question 10

How does the will of the public affect the Courts?

Answer 10

If the courts want their decision to have a stand, they are more likely to rule in favour with what the public want so it is more regularly enforced i.e. in the Obamacare decision, John Roberts personally disagreed with the healthcare plan, but sided with the liberal judges to uphold the basic constitutional foundations of Obamacare, in an attempt to uphold the institutional reputation of the Supreme Court

Question 11

What do Presidents look for when nominating Judicial Candidates?

Answer 11

Experience - previous experience on lower Courts or working as staff to Supreme Court Justices is crucial as it shows the President they are familiar with the Judicial environment

Political Ideology - Presidents will usually appoint judges who seem to have similar political ideology to their own - make rulings in line with the President’s views

Party and Personal Loyalties - A high percentage of a President’s appointees belong to the President’s political party

Ethnicity and Gender - it is seen as important to elect appoint judges of minority groups as it is seen as increasingly ‘representative’ of the country that they are making decisions on behalf on

Question 12

What elements can secure Judicial Independence?

Answer 12

I) Appointment over Election - this means that the Justices will not feel as though they ‘owe’ the public anything. Being elected proposes the idea of accountability to particular groups

II) Life - long tenure - means that they cannot be sacked unless it is through the impeachment process. It guarantees a spot on the court and ensures that they will not be removed by the President if they make decisions that oppose their supposed ideological standpoint

Fixed Salary - ultimately proposes the idea that salary will not fluctuate depending on the decisions that are made. Justices are free from influence

Question 13

Give an example where a President has regretted appointing a particular Judicial nomination?

Answer 13

Dwight Eisenhower appointed Earl Warren who turned out to rule in line ideologically with the Republicans - whilst Eisenhower himself was a Democrat. He noted that it was “the biggest damn mistake” that he had ever made.

Question 14

What is the difference between a thick and a thin Constitution?

Answer 14

The thick Constitution include the bits that are obvious and ultimately mean that it is easy for a reasonably informed person to apply the rules where in the thin constitution, interpretation prevails.

Question 15

What is Judicial Restraint?

Answer 15

It is a theory that encourages judges to limit the exercise of their opinions and power and places emphasis in making decisions based on precedent - or Stare Decisis - which is previous rulings

Question 16

What is Judicial Activism?

Answer 16

It is an approach to judicial review where decisions are almost entirely made on personal opinion. It usually means that the willingness of a judge to strike down the action of another branch of government or to overturn a judicial precedent, with no implied judgement as to whether the decision is constitutional or not.

Question 17

What is loose - constructionism?

Answer 17

Loose - constructionism is a form of judicial activism and is regarded to be a form of interpretation which perceives the Constitution as ‘living’ and furthermore, how the values within it should be applied to the context and values of today. Applies the same rules but to circumstances in different contexts.

Question 18

What is strict - constructionism?

Answer 18

This is a judicial philosophy whereby the Constitution is interpreted in a literal or strict manner - when practicing this, Justices will take an issue and look for the original intent of the Fathers who wrote the Constitution

Question 19

Outline ‘Originalism’

Answer 19

It understands legal text to retain the meaning it had at the moment it was ratified until duly amended or repealed. Primarily, it mean that the Constitution can only be interpreted based on what the writers meant - but there is historical contextualisation

Question 20

Outline ‘Textualism’

Answer 20

The bottom line is that the enacted text of a law is to be given supreme deference as the ultimate repository of the law’s meaning. Because the object of textualist interpretation is enacted text, many mainstream textualists reject the use of legislative history - that history has never been enacted into law.

Question 21

What element of the Supreme Court consolidates public acceptance?

Answer 21

Because it is identified as a legalistic, relatively non partisan institution - it is independent and does not act on behalf of other institutions.

Question 22

Why is disregarding the Supreme Court considered an evil?

Answer 22

This is because it is inconsistent with a powerful national tradition of deference to the Supreme Court - which in its strongest various takes the form of general theory of Judicial Supremacy

Question 23

What does the rule of law require?

Answer 23

It requires that people refrain from making independent judgements about what the Constitution requires, accepting without examination, the interpretations provided by what is known as a single authoritative decision - maker.

Question 24

What is one of the drawbacks and weaknesses of the Supreme Court

Answer 24

This is because they do not have the capacity to enforce decisions. They have to rely on the goodwill on the other institutions of government to impose its decisions - will never go too far away from the views of the public because then there will be less willing to follow through with their rulings

Question 25

In what circumstances will advocates turn to the Courts?

Answer 25

• Advocates turn to litigation when faced with newly enacted, rights-restricting policies that they have been unable to block in the electoral and legislative arenas. When Bush - era Republican Congress enacted a federal ban on partial birth abortion, abortion rights advocates immediately challenged that provision in federal court.
• Advocates litigate because they think the courts might be willing to dismantle rights - restricting policies that are already on the books. When gay rights advocates challenged Texas’s criminal prohibition of consensual sodomy, the policy had been in place for decades, but they nonetheless persuaded the Supreme Court that it was time for it to go. From this perspective, the advocates call on courts to disrupt the policy status quo rather than preserve it.
• Advocates litigate not to reverse a democratically enacted policy directly, but to buttress their own efforts to change policy via democratic channels. Even when relying on more convention forms of democratic politics, rights advocates often find themselves drawn into court in an effort to facilitate the success of these democratic campaigns. In these circumstances, advocates seek to change policy the normal way - via electoral and legislative politics - but nonetheless find it necessary to call on judges for assistance.