Module 3 - Chapter Thirteen

The Courts: Judicial Politics

• In the Online Lecture section, explore the instructor's discussion of the points raised in the first chapter.
• Ask yourself: how do these points compare to those found in the text?
• Make a note of the major concepts as listed in the text and as highlighted below.
• You may want to follow some of the current events hyperlinks to find examples of issues mention at the end of the online lecture.
• Go to the Dye textbook publisher site to look at the chapter overview and to test yourself as required (see below).

 

Dye Textbook: Overview

• Look at the Dye overview to assure yourself that you have absorbed the main points.  Only look at the overview after you have read the chapter!

Chapter 13 reviews the evolution, structure and functioning of the federal courts. The idea of "making a federal case" out of something relates to the notion that it may be possible to raise the visibility of an issue by taking it to the federal courts.

What exactly does that expression imply?

First, that many cases do not originate in the federal court system. Rather, most cases are handled at the state and local level. Around 90% of all criminal cases are based on state law. Much property law is state law. Many regulations are state regulations.

Thus when Dye states that "almost any issue can become a federal case," we should be cautious in not leaping to the conclusion that most cases ARE federal ones; they are NOT. (Dye comes back to this issue later in the chapter…).

Look carefully at the list of types of cases likely to fall to the federal courts. "Any case arising under the Constitution" is one. What does this mean? It might be concluded that since the Constitution is broad worded and based on general principles, a very large net has been cast. However, when thinking, for example, of the Supreme Court, which decides Constitutional matters as they rise from lower courts, it must be remembered that relatively few cases ever make it that far. Most cases are settled in the lower courts, typically again state courts, and that settles the matter.

Federal courts have jurisdiction over cases that involve "federal laws and treaties" so when some situation involving a federal law arises (like violation of federal tax laws, or interstate commerce), a federal court is likely to claim jurisdiction.

Federal courts also have jurisdiction in cases in which "officials of the federal government or of foreign governments are a party" as well as those "between states or between citizens of different states." Most cases do NOT involve officials of federal or foreign governments, nor citizens of different states, nor  qstates themselves. Most cases are based on state criminal and civil codes (and violations thereof), involving citizens or entities of the state itself. Corporations whose reach is often across states may raise issues that are federal in scope. But for most people, cases are local.

American government texts almost always focus on the Supreme Court as the main object of attention when dealing with the Judiciary as a branch of government. This is clearly based on an implicit understanding that the Supreme Court is where the power is, not on a concern with the site where most cases are heard, even within the federal court system.

Thus, we see that Dye almost immediately proceeds to a discussion of the Supreme Court in chapter 13, launching into a discussion of judicial review and arguments about the reach of the federal courts over states.

What exactly is judicial review and how did it arise? Read that section of the chapter carefully as it involves some understanding of a court case (Marbury v. Madison) and inferences about judicial authority made by Supreme Court justices such as Marshall.

What is the reach of judicial review? Does it relate to both laws passed by Congress AND those passed by the states, or only one?

Clearly, the concept of the supremacy of federal law over state laws is part of the philosophical underpinnings of the role of judicial review. As Dye points out, the main focus of the Supreme Court has been to strike down state laws, not laws passed by Congress.

Look at the examples presented by Dye on page 469. He mentions several cases in which the Supreme Court has struck down laws passed by Congress. Which ones do you tend to agree with the Supreme Court? Are there others where you think the Court went too far?

Perhaps two of the most famous state laws ever invalidated by the Supreme Court were its 1954 decision in Brown v. Board of Education of Topeka and its 1973 decision in Roe v. Wade. You should be able to identify the main issues in each of these cases for test purposes! Again, evaluate whether the Court made the right decisions on these matters…

Statutory Laws

Federal courts also have to interpret the meaning of laws passed by Congress whose wording is vague. Since one of the basic functions of any court system is adjudication, which means making a judgment about whether a law has been violated, it is vital that the Courts know what the law allows and disallows. When laws aren’t clear, it has to interpret whether certain actions were or were not permitted before deciding the specifics of an individual case.

The Supreme Court’s docket is predominately focused on issues dealing with three subject areas: civil rights and the treatment of women and minorities; the procedural rights of criminal defendants, and the freedom of speech, press and religion. These may involve interpretations of statutory law such as the Voting Rights Act of 1965, or of the Constitution itself.

Given the ambiguity of the Constitution and statutory laws, the issue of just how much should federal courts interpret things has been a constant issue. What are the main arguments for and against judicial self-restraint? What are the "rules" of judicial self-restraint? What, for example, does stare decisis mean?

You should look carefully at the diagrams presented by Dye on pp. 474 and 475. He shows the complex pattern found in the federal courts, starting from the Supreme Court and then moving down through the Court of Appeals and finally the district courts. What is the difference between original jurisdiction and appellate jurisdiction? What are most Supreme Court cases?

District courts are the workhorses of the federal system. How many are there? They make use of grand juries as well as petit juries. What is the difference?

As appellate courts, the Federal circuit courts only consider the records of the trial courts and oral or written arguments submitted by attorneys. Are most appeals based on good reasons, or just frivolous according to the appellate judges?

The Supreme Court cases emerge from a state’s "court of last resort" or from a lower federal court. You should keep in mind that the Supreme Court does NOT have to accept every case, only those with "substantial federal questions" or "special and important reasons."

Review the section on pp. 478-479 which discusses the idea that our country is awash in all kinds of frivolous lawsuits that are hurting business. Do you agree with the general point? How about the specific examples of types of cases mentioned in that section? Do they seem oriented to e.g., protecting consumers and punishing negligence or just plundering deep pockets for a free ride?

(1) the difference between criminal and civil cases

(2) the nature of an "adversarial proceeding"

(3) what it means to having "standing" to bring a case to court

(4) differences between plaintiffs and defendants

(5) Class action suits

(6) contingency fee

(7) remedies and reliefs

Question: who appoints ALL federal judges? Who appoints ALL state court judges?

Answers: President, Governor.

What are factors which shape who a President might pick to be a Supreme Court justice? How important are ideology, rewarding loyalists, picking minorities, agreement on a specific issue? Should there be a specific litmus test for prospective nominees – so that agreement on one issue (say, abortion) either includes or excludes an individual from consideration?

Naturally, the President cannot appoint justices without Senate confirmation. What is senatorial courtesy?

Does the Senate generally accept or reject the President’s nominees? Can you give examples of individuals who were rejected?

What qualifications would YOU look for in a nominee? Would you consider only people of a specific racial/ethnic/gender background? Would they have to have been lawyers, or otherwise have judicial experience? Is there a minimum age?

Some of the issues raised by Dye in this section have already been covered. However, there are a couple of important terms you should have reviewed:

(1) writ of certiorari

(2) amicus curiae

(3) solicitor general

(4) justices "in conference"

(5) "writing opinions"

(6) "majority opinion"

(7) "concurring opinion"

(8) "dissenting opinion"

Note the role of ideology in shaping the Court. Dye presents an interesting chart of the evolution of the ideological composition of the Supreme Court on page. 495. Note the pattern of increasing representation of Conservatives on the court. Who are the two core Conservative members of the current Court?

Checking Court Power

Dye wraps up his chapter by discussing some of the ways in which Court authority is limited or dependent upon the executive branch for implementation. What are some of the ways in which other branches of government can limit the judiciary?

Try going to the http://cnn.com/ALLPOLITICS/ site for some national coverage which may have a focus on judicial events.  Local events are covered in several newspapers such as the Annapolis Capital, the Baltimore Sun or the Washington Post.