The Judiciary

Pros of class-action suits

1. A lot of people can benefit from one case 2. It can meet concerns not being met by Congress or the president 3. It can provide an equal opportunity if the courts or president aren't 4. It can be profitable 5. It can powerfully affect public policy and it can be very punitive an popular (media)

What class-action suits will the Supreme Court no longer hear?

1. Class-action suits seeking monetary damages unless each and every ascertainable member of the class was individually notified of the case

Checks on judicial power from the legislative branch

1. Congress can gradually alter the composition of the judiciary by the kinds of appointments that the Senate is willing to confirm 2. Congress can impeach judges 3. Congress can changed the number of judges (if they increase the number, it will give the president a chance to pack the court) 4. Congress and the states can undo a Supreme Court decision by amending the Constitution or slightly altering the law and re-passing it 5. The authority of Congress to decide what the entire jurisdiction of the lower courts and the appellate jurisdiction of the Supreme Court shall be (can alter jurisdiction or the courts and restrict remedies). 6. Congress can use the media against the courts.

What two grounds has dual sovereignty been upheld on?

1. Each level of government has the right to enact laws serving its own purposes 2. Neither level of government wants the other to be able to block prosecution of an accused person who has the sympathy of the authorities of one level.

Checks on judicial power from public opinion

1. Judges read newspapers and are aware of public opinion, especially elite opinion. Changing political moods affect remedies 2. Justices can't use public opinion for their favor 3. Opinion restraints the courts, but it may also energize them... the Supreme Court has been the most activist at times when the political system was undergoing profound and lasting changes. 4. Public confidence in Court since 1966 has varied 5. The courts are insulated but sensitive to the on-goings of society, but this doesn't directly alter decisions in the short-term.

Arguments against judicial activism

1. Judges usually have no special expertise in matters of school administration, prison management, environmental protection, etc... 2. They are lawyers- expert in defining rights and duties but not in designing and managing complex institutions. 3. However desirable court-declared rights and principles may be, implementing those principles means balancing the conflicting needs of various interest groups, raising and spending tax dollars, and assessing the costs and benefits of complicated alternatives. 4. Federal judges are not elected... They are appointed and thus immune to popular control= they can become un-elected legislators

How have courts become more powerful?

1. More than 160 federal laws have been declared unconstitutional 2. The frequency with which the Supreme Court changes its mind 3. The degree to which courts are willing to handle matters once left to the legislature (political questions) 4. The kinds of remedies the courts will impose (MOST IMPORTANT because the remedies can go far beyond what is required to do justice; the remedies now often apply to large groups and affect the circumstance sunder which thousands or millions of people work, study, or live).

Checks on judicial power from the executive branch

1. Presidents can nominate activist/ strict constructionist judges or judges with the same ideology 2. Use bully pulpit against judges (media) 3. Issue directives 4. Use Justice Department... sidestep what the courts might request, differing methods of enforcement

Cons of class-action suits

1. Some can be frivolous 2. It is more difficult to gain standing in federal court 3. You need standing and resources (can be hard to gain)

Arguments in favor of judicial activism

1. The federal courts must correct injustices when the other branches of the federal government (or the states) refuse to do so 2. The courts are the institution of last resort

Checks the judicial power has on itself

1. The nature of courts... decisions can be resisted or ignored 2. The changes that have occurred int he Court have been caused by changes in its personnel 3. It's lack of authority to enforce decisions

The set of rules that govern standing (complex and changing)

1. There must be an actual controversy between real adversaries 2. You must show that you have been harmed by the law or practice about which you are complaining 3. Merely being a taxpayer does not ordinarily entitle you to challenge the constitutionality of a federal governmental action. 4. Sovereign Immunity

What cases are usually granted certiorari

1. Two or more federal circuit courts of appeals have decided the same issue in different ways 2. The highest court in a state has held a federal or state law to be in violation with the Constitution or has upheld a state law against the claim that it is in violation with the Constitution.

Why has activism increased?

1. We have more lawyers in proportion to our population 2. It is easier for people to get standing, pay the costs of litigation, and to bring class-action suits 3. The adversarial culture between the people and government causes the courts to act adversarily through legislation 4. Congress increasingly passed vague legislation and leaves a lot of interpretation up to the courts. 5. Almost every bureaucratic agency that deals with business and commerce will make decisions that get them litigated against, and these agencies are increasing 6. The growing number of activist judges 7. The sheer growth in the size and scope of government as a whole

What is a Legislative Court?

A court set up by Congress for a specialized purpose and a specified time and staffed with people who have fixed terms of office and can be removed or have their salaries reduced (they have less insulation) Examples: the Court of Military Appeals and the territorial courts.

What are federal-question cases?

All cases arising under the Constitution, the laws of the US, and treaties. These can be heard by federal courts

Where do all the non-Constitution required courts come from?

All other federal courts and their jurisdictions are creations of Congress.

What matters are left for the states to decide? What is significant about this?

All other matters that aren't federal-question cases or diversity cases. This gives state governments more powers and more types of cases to hear (doesn't make state governments more powerful necessarily).

How do governmental linkage groups have an effect on governmental policy involving the Courts?

Any action of the government alters public policy, which is controlled by the courts and what the people are talking about; appointments and confirmations put biased people as judges; the president appoints judges with a certain ideology in mind; changing of jurisdictions (Congress alters the court's policy cases); and the creation or dissolution of courts.

Over what cases does the Supreme Court have original jurisdiction?

Cases affecting ambassadors, other public ministers and consuls, those involving two or more states, those involving the United States and a states, and those involving a state and a citizen of a different state (if begun by the state).

What are diversity cases?

Cases involving citizens of different states. Federal courts can also hear these.

What has recently happened with standing?

Congress and the courts have made it easier to acquire standing.

How can Congress get around judicial review?

Congress can change a law that was declared unconstitutional as a new bill to fit the Constitution.

What are the two types of lower federal courts Congress created to handle cases that do not need to be decided by the Supreme Court?

Constitutional Courts and Legislative Courts

What do Constitutional Courts deal with?

Constitutional Matters (federal laws)

What is the lowest for of Constitutional Court?

District Court

What are the most important types of Constitutional Courts?

District Courts and Courts of Appeals

What are the vast majority of cases heard by? What do most of the cases heard in federal courts involve?

District courts. Most of the cases heard in federal courts involve straightforward applications of law and few lead to the making of new public policy. The Supreme Court does not hear the majority of these cases because there are way to many.

What is the justification for why some cases can be heard in either federal or state courts?

Each government has the right to enact laws, and neither can block prosecution out of sympathy for the accused.

What does the Constitution not indicate with regard to the Supreme Court?

How many justices will be on the Supreme Court and when it has appellate jurisdiction.

What dilemma does the Court have in deciding how many cases it should hear?

If it grants certiorari frequently, it will be overwhelmed with cases, but if it grants it rarely, then the federal courts of appeals have the last word on the interpretation of the Constitution and federal laws.

How does Congress have judicial powers?

It can abolish courts and approve judges.

How does the Supreme Court decide which cases it will hear?

It can issue a writ of certiorari

What types of judges tended to be liberals? What types of judges tended to be conservatives?

It used to be where strict-constructionist judges were liberal and activist judges were conservatives, but today it is the other way around.

What is the federal courts' chief weapon in the system of checks and balances?

Judicial review

What impacts the selection of Supreme Court Justices the most? What doesn't?

Litmus Tests impact the selection of Supreme Court Justices the most. Senatorial Courtesy and blue slips do not.

Which case established the right of the courts to use judicial review?

Marbury v. Madison

Where is it easy to bring a class-action suit to?

Most state courts... they are more common in state courts.

What is significant about nominations of district court judges with regard to senatorial courtesy?

Nominations of district court judges are rarely defeated because typically no nomination is made unless the key senators approve in advance.

How many federal laws has the Supreme Court declared to be unconstitutional since 1789?

Over 160

In a year, about how many petitions asking for review of decisions by lower courts will the Supreme Court get? How many does the Court accept?

Over 7,000 petitions. About 100 are accepted (1% or 2%)

Why might the Courts be called "the great equalizer?"

Parties before the courts are legally equal.

What is significant with regard to judicial behavior?

Party background has some effect on judicial behavior but ideology does not determine behavior. Many other things affect a justice's decision.

What is a Litmus Test based on?

Someone's previous decisions

What are your options when you break a state law?

State courts (you can still later apply to the Supreme Court- meaning federal judges can overturn state court rulings even when they had no jurisdiction over the original matter). States don't have exclusive jurisdiction over anything.

When was the activist approach born?

The 1880s and 1890s.

What is the only federal court the Constitution requires?

The Supreme Court

What is the basis for sweeping orders?

The constitution or the interpretation of federal laws

What happens if a Supreme Court vote ends in a tie?

The lower court's decision is left standing.

What has happened to Litmus Tests?

They have grown in importance and it is much more important with divided government.

What cases do district courts have original jurisdiction over?

cases involving: federal crimes, civil suits under federal law, civil suits between citizens of different states where the amount is over $50,000, admiralty and maritime disputes, bankruptcy, review of actions of certain federal administrative agencies, and other matters assigned to them by Congress.

How do non-governmental linkage groups have an effect on governmental policy involving the Courts?

media support, litigation, class-action suits, gather people together for litigation, protests, work with Congress to change polices. An interest group might take up a case, organize the case, find the plaintiffs, chose the legal strategy, and mobilize legal allies.