CHAPTER 12 THE JUDICIARY Alexander Hamilton penned in the Federalist 78 that the judiciary would be the least dangerous branch of government It lacked the teeth of both the other branches of government it had neither the power of the sword nor the power of the purse Today the federal courts are very powerful Nevertheless the courts still have two basic limitations they have neither The court cannot fund programs or their implementation nor can it force Nonetheless it has gone from almost an afterthought in the Constitution to the power of the sword nor the power of the purse compliance with its rulings determining the outcome of the election of 2000 The most powerful man in Washington is a Kennedy Anthony Kennedy Associate Justice Has been involved in some of the most controversial topics in American Is the Supreme Court Political history Slavery abortion civil rights etc Isn t it the law above politics It seems so quiet there Justice Oliver Wendell Holmes we are very quiet here but it is the quiet of a storm center Article 3 of the Constitution establishes vested the only court mentioned in the Constitution The Constitution and the Creation of the National Judiciary A Supreme Court in which the judicial power of the United States is Life tenure or good behavior for judges Judges receive compensation that cannot be diminished during their Such inferior courts as Congress may choose to establish The original jurisdiction of the Supreme Court Confederation which left judicial matters to the states The intent of the article was to remedy the failings of the Articles of service How many are on the Supreme Court The Constitution says it doesn t but there are 9 In 1789 there were 6 It has gone from 10 It has been 9 since 1869 FDR and Court packing The switch in time that saved nine Checks and Balances The Judiciary Judicial power is checked by Congress through impeachment altering the makeup of SCOTUS or federal courts passing a constitutional amendment to reverse a decision It is checked by the president through nominating power And the Judiciary checks through What makes SCOTUS Powerful Judicial Review Constitutional and thereby affirm or overturn it Judicial review is the power of a court to decide if a law or other legal issue is This power is not mentioned in the Constitution Judicial review was established by the Marshall Court for itself and posterity Good book The Great Decision 2009 by Sloan and McKean Marshall it is emphatically the province and duty of the judicial department in Marbury v Madison to say what the law is Chief Justice John Marshall The Marshall Court John Marshall father of the Supreme Court Longest serving 34 years Generally considered the most influential of all Set tone of seriousness black robes And unity ended British practice of seriatim opinions justices of SCOTUS Judicial Review Congress Marbury v Madison 1803 set precedent for judicial review of acts of The later Martin v Hunter s Lessee 1816 extended review to state law These decisions have had a long term effect in allowing the Court to have It established the judiciary as an independent co equal branch of federal the final say in what the Constitution means government Justices have used this power sparingly Judicial Review The power has only been used about times to strike down acts of It has been used more frequently over times to invalidate acts of state Congress legislatures Landmark Decisions of the Supreme Court Marbury v Madison judicial review McCullough v Maryland federalism Dred Scott v Sandford civil rights Brown v Board of Education equal rights Miranda v Arizona limits on police Roe v Wade abortion Bush v Gore deciding election of president Citizens United v FEC campaign finance System The Judiciary Act of 1789 and the Creation of the Federal Judicial The American legal system is a dual system Both systems have three tiers established by the Judiciary Act of 1789 state courts actually 50 different systems federal courts trial courts litigation begins and courts hear the facts of the case at appellate courts decide questions of law not fact appellate high or supreme courts hand original jurisdiction jurisdiction How Federal Court Judges Are Selected The selection of judges is a very political process Judges are nominated by the President and confirmed by the Senate Provides the President opportunity to put a philosophical stamp on federal There are frequent filibusters in the Senate courts Federal Selection Process Nomination Criteria Federal and SCOTUS Justices No constitutional qualifications Competence Ideology Policy Preferences Rewards Pursuit of Political Support Race and Gender Religion Roman Catholic Jewish Protestant Atheist Conservative Liberal Swing Religion and the Supreme Court Political Breakdown of the US Supreme Court This is a possible political breakdown but does it correspond to judicial philosophy Associate Justices Antonin Scalia and Stephen Breyer One major division on the Supreme Court is that of judicial philosophy Originalists founding document is the constitution and the federalists papers v Living constitutionalists we should all consider the constitution but times change Legal Factors Judicial Philosophy How the Justices Vote Judicial restraint advocates minimalist roles for judges Judicial activism feels that judges should use the law to promote justice equality and personal liberty Prior judicial decisions serve as a rule for settling subsequent cases of Precedent stare decisis a similar nature Cases Before the Supreme Court This Term Affirmative action Abortion Union dues free association Recent Terms Affordable health care tax subsidy Fourth amendment and marijuana search Fourteenth amendment same sex marriage Who can petition the Supreme Court Anyone That is democracy in action But It must involve a federal question Ypour case must go through the lower courts This is certiorari process petitioning through a writ of certiorari The justices review the cert pool then vote on whether to hear the case or not Judicial Policy Making and Implementation All judges make policy This was particularly noticeable following But SCOTUS does not have the power to implement its decisions So how do the Court ordered desegregation in the 1954 Brown ruling and Rulings on 2nd Amendment rights in 2007 and 2010 decisions get implemented The executive branch Implementing SCOTUS Decisions enforcement and Congress must support a decision by passing necessary laws and funding the