Part I: the ap united states government course examination



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REFORMING THE BUREAUCRACY


Throughout American history, presidents and Congress have attempted to reform the bureaucracy to make it work better and cost less. The Intelligence Reform and Terrorism Prevention Act of 2004 is a recent example. Many other reforms have been suggested for the future.

THE MERIT SYSTEM AND THE HATCH ACT

The merit system tries to ensure that the best-qualified people get government jobs and that party politics (patronage) has nothing to do with the hiring process. In 1939 Congress passed the Hatch Act, which required employees, once they were hired, to have as little to do with political parties as possible. The Hatch Act forbids employees from engaging in many party activities. For example, they could not run for public office or raise funds for a party or candidate, nor could they become officers in a political organization or a delegate to a party convention.

In the early 1970s some bureaucrats complained that their 1st amendment rights were being violated. The issue made its way to the Supreme Court, where the justices ruled that the Hatch Act did not put unreasonable restrictions on employees’ rights. However, in 1993 Congress softened the Hatch Act by making many forms of participation in politics permissible. Federal bureaucrats still cannot run as candidates in elections, but they may be active in party politics.

CRITICISMS OF THE BUREAUCRACY

Americans criticize their political bureaucracies in many ways, but some frequently mentioned ones are:

        red tape- the maze of government rules, regulations, and paperwork ö makes government so overwhelming to citizens that many people try to avoid any contact.

        conflict- agencies that often work at cross purposes with one another

        duplication- a situation in which two agencies appear to be doing the same thing

        unchecked growth- the tendency of agencies to grow unnecessarily and for costs to escalate proportionately.

        waste- spending more on products and/or services than is necessary.

        lack of accountability- the difficulty in firing or demoting an incompetent bureaucrat



SUGGESTIONS FOR REFORM

Some suggestions for reforming the bureaucracy are:

        Limiting appointments to 6-12 years. After the appointment expires, the bureaucrat would then have to go through reexamination and their performance would be reviewed for possible rehire.

        Making it easier to fire a bureaucrat. Civil service rules that are meant to protect workers from partisan politics have made it difficult to fire anyone for poor performance. Reformers want to remove those rules.

        Rotating professionals between agencies and from outside. Reformers believe that this practice would bring new blood to agencies and encourage workers to get a broader view of government service.

        Rewarding employee initiatives and fewer rules. The bureaucracy is criticized for having rigid rules that restrict new ideas and individual initiatives. Reformers suggests that rules be streamlined and modernized, and that suggestions from employees should be encouraged and rewarded.

        Emphasizing customer satisfaction. Government bureaucrats are often criticized for not caring about their customers. Unlike private businesses, government agencies do not have to compete for customers, so their clients are not given the attention they deserve.

Finding the practical solutions that everyone can agree on is a difficult process in our government, largely because our system of checks and balances is not particularly efficient. But that doesn’t stop presidents and many others from suggesting and implementing reform of the bureaucracy.



IMPORTANT DEFINITIONS AND IDENTIFICATIONS

accountability

appropriations

authorizations

Bureaucracy

Discretionary authority

Duplication

Government corporations

GS Rating

Hatch Act

Independent executive agencies

Independent regulatory agencies

Iron triangle

Issue network

Max Weber

Merit principle

Munn v. Ohio

patronage

Pendleton Act

red tape


spoils system

 

CHAPTER 13

THE JUDICIARY


In most modern democracies the executive and legislative branches hold considerable power, but most grant little policymaking power to the judicial branch. A most important exception to this general rule is the United States, whose judiciary is truly a coequal branch with as much power as the other two. And yet our government did not begin with this almost equal balance of power; the founders almost certainly saw the judiciary as an important check on the legislative and executive branches, but not as a policymaking body.

The court system is a cornerstone of our democracy. According to our ideals, judges make impartial and wise decisions that elected officials find difficult to make. Members of Congress, state governors, and the President must always worry about elections and popular opinion. As a result, they may lose sight of the need to preserve our values, and they sometimes set hasty or unjust policies. Under the guidance of Constitutional principles, the courts serve as watchdogs of the other branches of government.



THE COMMON LAW TRADITION

Although the U.S. judiciary differs in many ways from the British system, the tradition of English common law is still very important to both. Common law is a collection of judge-made laws that developed over centuries and is based on decisions made by previous judges. The practice of deciding new cases with reference to former decisions is called precedence. The doctrine of stare decisis (let the decision stand) is based on [precedent, and is a cornerstone of English and American judicial systems. So, when a Court overturns a previous court’s decision, it is a major event, because to do so breaks the strong tradition of state decisis.



THE JUDICIARY IN THE CONSTITUTION

The Constitution painstakingly defines the structure and functions of the legislative branch of the government. It clearly, although less thoroughly, addresses the responsibilities and powers of the President. However, it treats the judicial branch almost as an afterthought. Article III specifically creates only one court (the Supreme Court), allows judges to serve for life and to receive a compensation, broadly outlines original and appellate jurisdiction, and outlines the procedure and limitations for those accused of treason. Article III consists of three section:

        Section 1: The only court mentioned in the Constitution is the Supreme Court, and Congress is given the right to create all other federal courts. Judgeships are to be held "during good Behavior" (in other words, there are no terms of office), and judges' compensations are not allowed to be diminished while they hold office.

        Section 2: The jurisdiction of the courts is defined, with all cases affecting ambassadors, ministers, and consuls going automatically to federal courts. Also, federal jurisdiction is held in cases of admiralty and maritime jurisdiction, cases involving the U.S. as a party, controversies between two or more states or between citizens of different states, and cases of states or their citizens against foreign countries. Original jurisdiction (The court has the first hearing) is given to the Supreme Court in cases involving ambassadors, ministers, and consuls and in cases in which a state is a party. Appellate jurisdiction is given in all other cases. In other words, they can only be appealed to the Supreme Court after first being heard in a lower court. Section 2 also provides for trial by jury for all criminal (not civil) cases.

        Section 3: Treason is defined as not only waging war against the United States, but as "adhering to their enemies" and "giving them aid and comfort." A person may be convicted for treason only if he or she confesses in court or on the testimony of two witnesses. Punishment for treason is declared by Congress, but "corruption of blood" (paying for the treason of a relative) and forfeiture of property after the individual is dead are forbidden.

Surprisingly, nothing else is said. Article III clearly reflects the traditional 18th century view of courts: they judge disputes between people and decide which of the two parties is right, usually awarding the wronged party "damages," or money. The role of judges, then, is simply to find and apply existing law. Under this scenario, judges cannot make laws, but they are required to interpret them in order to apply them. This power of interpretation implies a limited judiciary role in "checking and balancing" the other two branches: laws passed by Congress and actions by the president and other executives.



JUDICIAL REVIEW

The early Supreme Court gave few indications that the judicial branch would someday be coequal to the legislative and executive branches. Their first session began in 1790, and lasted only ten days. No cases were heard, and their time was spent admitting lawyers to practice before the Court. Not until the early 1800s did the fourth Chief Justice, John Marshall, claim the power for the court in the famous Marbury v. Madison case. The power he claimed was judicial review, a concept implied by but not mentioned in Article III of the Constitution. Judicial review allows the courts to rule on the constitutionality of laws and actions, giving them the power to strike down or reinforce policy, not just to apply and interpret it. Judicial review is the key to understanding the unusual power of the United States judiciary.



MARBURY V. MADISON (1803)

When President John Adams failed to win reelection in 1800, he was forced to cede the office to his political rival Thomas Jefferson. For the first time in U.S. history, a president from one political party (the Federalists) had to step down for one from the opposite party (the Democratic Republicans). Fearing that Jefferson would undo Federalist policies, Adams worked hard to "pack the courts" with 57 Federalist judges before he had to leave office. All but seventeen letters of appointment were delivered before the change of office, but these letters were left for the incoming secretary of state - James Madison - to send out. Madison never delivered the letters. Four of the seventeen men (one was named Marbury) who never received their letters sued Jefferson and Madison, calling on the Supreme Court to issue a writ of mandamus ordering Madison to make the appointments.

The Chief Justice of the Court, Federalist John Marshall, was put in a bind by the lawsuit. The Court had been given the power to issue writs of mandamus (from the Latin "I command") by the Judiciary Act of 1789, but its influence was largely untested. What if the Court issued the order to Madison and he refused to comply, what could the Court do? It had no troops to enforce its orders. Even if Madison cooperated, the Democratic Republican Congress almost certainly would impeach him. On the other hand, if he allowed Madison to get away with it, the power of the Supreme Court would be seriously compromised.

Marshall's solution not only avoided a constitutional crisis, a standoff among the three branches, but it changed the nature of judicial power completely. The court refused to issue the writ of mandamus, but in his majority opinion, Marshall claimed that the Judicial Act of 1789 was unconstitutional. According to Article III, original jurisdiction is given to the Supreme Court only in certain cases; the Judicial Act gave original jurisdiction for the Court to issue writs not mentioned in the Constitution; therefore, the law was unconstitutional. As a result, a showdown was avoided, Jefferson and Madison were happy, and Marshall awarded the Court an unprecedented power: judicial review. From then on, no one seriously questioned the Court's right to declare laws unconstitutional, and Marshall's 34 years as Chief Justice were spent building on that power.



THE STRUCTURE OF THE FEDERAL COURT SYSTEM

The only federal court required by the Constitution is the Supreme Court. Article III left it up to Congress to establish lower federal courts, which they began to do in the Judiciary Act of 1789. The Constitution also does not specify how many justices shall be on the Supreme Court (originally there were six; now there are nine). Congress created two general types of lower federal courts: constitutional and legislative.



Constitutional Courts

Constitutional courts exercise the judicial powers found in Article III, so their judges are given the constitutional protection of lifetime terms. There are 94 district courts, with at least one in each state, the District of Columbia, and Puerto Rico; and 13 courts of appeals, one of which is assigned to each of 12 judicial circuits, or region. A special appeals court called the U.S. Court of Appeals for the Federal Circuit hears cases regarding patents, copyrights, and trademarks, claims against the United States, and international trade.

        District courts are trial courts of original jurisdiction, the starting point for most litigation in the federal courts. They hear no appeals, and they are the only federal courts in which trials are held and juries may sit. Each district court has between two and twenty-seven judges, depending on their caseloads. Their jurisdiction includes federal crimes, civil suits under federal law, and civil suits between citizens of different states where the amount exceeds fifty thousand dollars.

        Courts of appeal have appellate jurisdiction only; no cases go to them first. They review any final decisions of district courts, and they may review and enforce orders of many federal regulatory agencies, such as the Securities and Exchange Commission. Most cases come from the district courts. Each court of appeals normally hears cases in panels of three judges, but important cases may include more. Decisions are made by majority vote of the participating judges.



Legislative Courts

Congress also has set up legislative courts for specialized purposes. These courts include the Court of Claims, the Court of International Trade, the Tax Court, and the Court of Military Appeals. Legislative courts are sometimes called Article I courts because they help carry out the legislative powers the Constitution has granted to Congress. Because they do not carry out Article III judicial powers, their judges are not protected for life; they serve fixed terms of office, can be removed without impeachment, and may have their salaries reduced.



PARTICIPANTS IN THE JUDICIAL SYSTEM

The major participants in the courtroom are the judge, the litigants, the lawyers, sometimes a jury, and the audience, such as the press, interest groups, and the general public.



LITIGANTS

The litigants include the plaintiff, or the person bringing the charges, and the defendant, or the person charged. In criminal law cases an individual is charged with violating a specific law; in civil law cases no charge of criminality is made, but one person accuses another of violating his or her rights. Civil law defines the relations between individuals and defines their legal rights. Litigants wind up in court for many reasons. Plaintiffs may be seeking justice and/or compensation; defendants may be brought to court reluctantly, particularly if they are accused of a crime, or they may see themselves as defending their rights against a lawsuit.

The United State government is involved in about two-thirds of the cases brought to federal court, either as a plaintiff or defendant. In criminal cases the government is the plaintiff, but in a large number of civil cases, the government defends itself against lawsuits.

Litigants must always have standing to sue, or a serious interest in the case, usually determined by whether or not they have personally suffered injury or are in danger of being injured directly. Just being opposed to a law does not generally provide standing; the individual must be directly affected by it. The concept of standing to sue has been broadened in recent years by class action suits, which permit a small number of people to represent all other people similarly situated. For example, Brown v. Board of Education of Topeka was a class action suit in 1954, when Linda Brown of Topeka, Kansas, represented black students from several school districts around the country suing for discrimination in public education.



LAWYERS

Lawyers have become virtually indispensable in the judicial system. In criminal cases federal lawyers are the prosecutors, or those who formally charge an individual of a crime. Prosecution falls to the Department of Justice: the attorney general, the solicitor general (who represents the government to the Supreme Court), other attorneys, and assistant attorneys, who must also serve as defense lawyers if the government is being sued.

The federal government also provides public defenders for people who cannot afford personal lawyers. The 1964 case Gideon v. Wainwright determined that all accused persons in state as well as federal criminal trials should be supplied with a lawyer, free if necessary. Prosecutors negotiate with the defense lawyers and often work out a plea bargain, in which a defendant agrees to plead guilty to avoid having to stand trial.

THE JURY

The right to a trial by jury is fundamental to our justice system, but most trials do not involve them. In many cases, but not all, a jury, a group of citizens (usually twelve), is responsible for determining the innocence or guilt of the accused. Trial by jury is used less often today than in the past. Defendants and their lawyers either make plea bargains or elect to have their cases decided by a judge alone. Even in criminal cases, only a small number are actually tried before a jury. Trials by jury take more time and money than do bench trials, which are heard before judges only.



THE AUDIENCE

Interest groups sometimes seek out litigants to represent a cause they support. One of the most successful groups is the National Association for the Advancement of Colored People, which has defended numerous civil rights cases, including Brown v. Topeka. The American Civil Liberties Union is another interest group that actively seeks litigants to protect principles of individual liberties. The press actively influences sensational cases, particularly if a celebrity or a highly publicized case is involved. The press corps is often instrumental in getting the public interested in a case.



THE JUDGES

The central figure in the court room is of course the judge, who must draw upon his or her background and beliefs to guide decision making. Whether a jury is involved in the trial or not, it is up to the judge to make the final decision of innocence or guilt and to pronounce the sentence if the individual is found guilty.



THE JURISDICTION OF THE FEDERAL COURTS

The United States has a dual court system - one federal, as outlined above, and one state. The Constitution gives certain kinds of cases to federal courts, and by implication leaves all the rest to state courts. Federal courts hear cases "arising under the Constitution, the law of the United States, and treaties" (federal-question cases) and cases involving citizens of different states (diversity cases).

Some kinds of cases may be heard in either federal or state courts. For example, if citizens of different states sue one another in a civil case where more than $50,000 is involved, their case may go to either federal or state court. If a state bank with federal insurance is robbed, the case may be tried in either type of court. Sometimes defendants may be tried in both state and federal courts for the same offense. Under the doctrine of dual sovereignty, state and federal authorities can prosecute the same person for the same conduct. Also, some cases that go to state courts can be appealed to the U.S. Supreme Court if they involved a significant constitutional question. For example, if the highest court in a state has held a law to be in violation of the Constitution or has upheld a state law that a plaintiff has claimed to be in violation of the Constitution, the matter may be appealed to the Supreme Court.

Most cases considered in federal courts begin in the district courts, where the volume of cases is huge and growing larger. Most cases involve straightforward application of law; very few are important in policymaking. Likewise, the vast majority of cases heard in state courts do not reach federal courts, with each state having its own Supreme Court that serves as the final judge for questions of state law.



THE SELECTION OF JUDGES

Legendary Justice Oliver Wendell Holmes once said that a Supreme Court justice should be a combination of Justinian, Jesus Christ, and John Marshall. Why do we look to venerable former justices for guidance in understanding necessary qualities for federal judges and justices? The main reason is that the Constitution is silent on their qualifications. The Constitution meticulously outlines qualifications for the House of Representatives, the Senate, and the Presidency, but it does not give us any help with judicial appointments, other than the fact that justices should exhibit good behavior. As a result, the question of who is chosen is governed primarily by tradition.



THE NOMINATION PROCESS

The Constitution provides broad parameters for the nomination process. It gives the responsibility for nominating federal judges and justices to the President. It also requires nominations to be confirmed by the Senate. But let’s do the numbers. Hundreds of judges sit on district courts and courts or appeals, and nine justices make up the Supreme Court. Since they all have life terms, no single President will make all of these appointments, but certainly many vacancies will occur during a President’s term of office.

Appointing judges, then, could be a President’s full time job. Logically, a President relies on many sources to recommend appropriate nominees for judicial posts. Recommendations often come from the Department of Justice, the Federal Bureau of Investigations, members of Congress, sitting judges and justices, and the American Bar Association. Some judicial hopefuls even nominate themselves.

The Lower Courts

The selection of federal judges for district courts and sometimes for courts of appeal is heavily influenced by a tradition that began under George Washington: senatorial courtesy. Usually the Senate will not confirm a district court judge if the senior senator from the state where the court is located objects, nor a court of appeals judge not approved by the senators from the judge's home state. As a result, presidents usually check carefully with senators ahead of time, so the Senate holds a great deal of power in the appointment of federal judges.



The Supreme Court

The president is usually very interested in opportunities to appoint justices to the Supreme Court, and a great deal of time and effort go into the nominations. Because justices retire at their own discretion, some presidents are able to appoint more than others. For example, Richard Nixon was able to nominate four justices in his first three years in office, but Jimmy Carter wasn't able to appoint any.



SENATE CONFIRMATION

Because senators suggest most nominees for federal district courts, the Senate confirmation required by the Constitution is only a formality for most. However, for appointments to appeals courts and especially to the Supreme Court, the confirmation process may be less routine. The Senate Judiciary Committee interviews the nominee before he or she goes before the entire Senate. If the Judiciary Committee does not recommend the candidate, the Senate usually rejects the nomination. Through 2001, 28 of the 146 individuals nominated to be Supreme Court justices have not been confirmed by the Senate.



SELECTION CRITERIA

Presidents use a number of criteria in selecting their nominations:

        Political ideology ö Presidents usually appoint judges that seem to have a similar political ideology to their own. In other words, a president with a liberal ideology will usually appoint liberals to the courts. The same goes for conservative presidents. However, Presidents have no real way of predicting how justices will rule on particular issues. Behavior doesn’t always reflect ideology, and political views also change. For example, President Dwight Eisenhower ö a Republican - appointed Earl Warren and William Brennan, who surprised him by becoming two of the most liberal justices in recent history.

        Party and personal loyalties ö A remarkably high percentage of a President’s appointees belong to his political party. Overall, about 90 percent of judicial appointments since the time of Franklin Roosevelt have gone to members of the President’s party. Although it isn’t as common today as it once was, Presidents still appoint friends and loyal supporters to federal judgeships.

        Acceptability to the Senate -Because the Senate must confirm judicial nominations, the President must consider candidates that are acceptable to the Senate. Even if he does informally consult with the Senate, he may still run into problems with the Senate Judiciary Committee, who first interrogates nominees and recommends them to the full Senate. If a nominees runs into trouble in the confirmation process, they often withdraw their names from consideration. If this happens, the President must start all over again, as happened to Ronald Reagan in 1988 when he nominated Douglas Ginsburg, who was criticized for using marijuana while a law professor at Harvard.

        Judicial experience - Typically justices have held important judicial positions before being nominated to the Supreme Court. Many have served on courts of appeals, and others have worked for the Department of Justice. Some have held elective office, and a few have had no government service but have been distinguished attorneys. The work of the Supreme Court is so unique that direct judicial experience is often less important than it is for the other courts of appeals.

        Race and gender - The first black American, Thurgood Marshall, was appointed to the Supreme Court by Lyndon Johnson in 1967, and the first woman, Sandra Day O'Connor, was appointed in 1981 by Ronald Reagan. Since then one other black, Clarence Thomas, and one woman, Ruth Ginsburg, have been appointed as well. Before 1967 all justices were white and male. The percentage of women and minority federal judges appointed has increased significantly in recent years.

        The "Litmus Test" - Although most senators and presidents deny it, some observers believe that candidates must pass a "litmus test," or a test of ideological purity, before they may be nominated and/or confirmed to the Supreme Court. One recent litmus test supposedly has been the individual's attitude toward abortion rights. Nominees David Souter and Clarence Thomas both were grilled by the Senate Judiciary Committee about their opinions on prominent abortion cases.



HOW THE SUPREME COURT WORKS

The power of the Supreme Court is reflected in the work that they do, and their decisions often shape policy as profoundly as any law passed by Congress or any action taken by the president. The Court does much more than decide specific cases. It resolves conflicts among the states and maintains national supremacy. It also ensures uniformity in the interpretation of national laws, and many of the most important cases that determine the constitutionality of laws and government actions are decided in the Supreme Court.

There are nine justices on the Supreme Court: eight associates and one chief justice. The number is set by law and has varied from six to ten over the course of history, but it has remained at nine since the 1870s. All the justices sit together to hear cases and make decisions.

Supreme Court justices are in session from the first Monday in October through the end of June. They listen to oral arguments for two weeks and then adjourn for two weeks to consider the cases and write their opinions. In the event of a tie (if one or more justices is not present), the decision of the lower court remains, although on rare occasions a case may be reargued.



SELECTION OF CASES

Most cases come to the Supreme Court by means of a writ of certiorari, a Latin phrase that means "made more certain." The court considers all petitions it receives to review lower court decisions. If four justices agree to hear a case, cert (a shortened reference) is issued and the case is scheduled for a hearing. This practice is known as the rule of four. Only a tiny fraction of cases appealed to the Supreme Court are actually accepted. The Court also hears the few cases in which it has original jurisdiction according to Article III of the Constitution, but for the vast number of cases, the Court has control of its agenda and decides which cases it wants to consider.



BRIEFS AND ORAL ARGUMENTS

Before a case is heard in court, the justices receive printed briefs in which each side presents legal arguments and relevant precedents (previous court decisions). Additionally, the Supreme Court may receive briefs from amici curiae ("friends of the court") individuals, organizations, or government agencies that have an interest in the case and a point of view to express. When oral arguments are presented to the court counsel for each side generally is limited to 30 minutes, a policy that often aggravates the lawyers, since justices often interrupt them to ask questions.



THE CONFERENCE

Wednesday afternoons and all day Friday the justices meet in conference. Before every conference, each justice receives a list of the cases to be discussed, and the discussions are informal and often spirited, with the chief justice presiding. No formal vote is taken, but at the end of discussion, each justice is asked to give his or her views and conclusions.



OPINIONS

Once decisions have been made in conference an opinion, or statement of the legal reasoning behind the decision, must be formally stated. The most senior justice in the majority assigns the task of writing the majority opinion, the official opinion of the court. Unless the decision is unanimous, the most senior justice on the losing side decides who will write the dissenting opinion of those justices who do not agree with the Court’s majority decision. A justice may write a concurring opinion if he or agrees with the majority decision but does so for different reasons than stated in the majority opinion

The content of an opinion may be as important as the decision itself. For example, John Marshall established judicial review in his majority opinion in the Marbury v. Madison case. Opinions also instruct the judges of all other state and federal courts on how to decide similar cases in the future

IMPLEMENTING COURT DECISIONS

Court decisions carry legal authority, but courts have no police officers to enforce them. They must rely on the other branches, or state officials, to enforce their decisions. Judicial implementation, then, refers to the translation of court decisions into actual policy that affects the behavior of others.

Although Congress or a President may ignore or side-step a Supreme Court ruling, decisions whose enforcement requires only the action of a central governmental agency usually become effective immediately. Implementation is more difficult if a decision requires the cooperation of a large number of officials. For example, when the Court ruled required prayers in public schools unconstitutional, some school boards continued their previous practices. Also, despite the fact that the Court ruled segregated schools unconstitutional in 1954, public schools remained largely segregated for more than ten years after the first ruling.

THE COURTS AND DEMOCRACY

Of the three branches of government, the courts are the least democratic. Justices are not elected (except for some positions on the local level), they may not be removed from office except by the drastic means of impeachment, and the decisions of the courts may only be reversed by higher courts.



POPULAR INFLUENCE

The courts are not entirely independent of popular influence for two reasons.

1)      The justices are appointed by the President, at least partly because they agree with his political points of view and ideologies. Therefore, even though they do not have the pressure to seek reelection, they are chosen at least partly because of their political biases.

2)      Justices follow election returns, read newspapers, get mail supporting both sides of the issues they must decide, and understand that their decisions either support or refute popular opinion. Justices are aware that court orders that flagrantly go against public opinion are likely to be ignored. Such a case was the Dred Scott decision, which infuriated the North because it supported slaveholders outside the South.



CONSERVATISM AND LIBERALISM

Although justices are theoretically above politics, they do have personal ideologies, and their points of view often influence their decisions. For example, the Supreme Court under Earl Warren (1953-1969) and Warren Burger (1969-1986) made decisions that were notably liberal, most famously is Brown v. Board of Education of Topeka (1954) and Roe v. Wade (1973). Since William Rehnquist became Chief Justice in 1989, the court has taken a rightward shift. Currently, three justices are consistently conservative (Rehnquist, Antonin Scalia, and Clarence Thomas); four are liberal to moderate (Ruth Ginsberg, Steven Breyer, and John Paul Stevens); and two are moderate to conservative (Sandra Day O’Connor and Anthony Kennedy). As a result, the two in the middle often serve as swing votes, and decisions rest on their points of view.



CONSTRAINTS ON THE POWER OF THE FEDERAL COURTS

Judicial review gives the federal courts a power unmatched in any other modern democracy, but the courts operate under a number of constraints.

1)      Policy must be made within the setting of an adversarial system, a neutral arena in which two parties present opposing points of view before an impartial arbiter (a judge.) The system is based on the assumption that justice will emerge from the struggle. Judicial power, then, is passive - the case must come to the court, and not vice versa.

2)      The case must represent a justiciable dispute - an actual situation rather than a hypothetical one, and one that may be settled by legal methods.

3)      Courts have developed a doctrine of political questions, which provides grounds to avoid settling disputes between Congress and the president, or requires knowledge of a non legal character. A political question is a matter that the Constitution leaves to another branch of government, like deciding which group of officials of a foreign nation should be recognized as the legitimate government.

The other two branches of government provide some important checks on the power of the courts.

        The president controls the nature of the courts with his power to appoint all federal judges.

        Congress must confirm presidential appointments

        Congress may alter the very structure of the court system, determining the numbers of courts and justices that serve on them.

        Congress has the power to impeach justices, with two federal justices being removed from office most recently in 1989.

       Congress may also amend the Constitution if the Courts find a law unconstitutional, though this happens only rarely. For example the Sixteenth Amendment was added to make it constitutional for Congress to pass an income tax.

THE POLICYMAKING POWER

Although the vast majority of cases decided by the federal courts only apply existing law to specific cases, courts do make policy on both large and small issues. Opinions differ widely on the question of how strong the policymaking role of the judicial branch should be.

Many favor a policy of judicial restraint, in which judges play minimal policy-making roles, leaving policy decisions to the other two branches. Supporters of judicial restraint believe that because the judicial branch is the least democratic, judges are not qualified to make policy decisions. According to judicial restraint, the other branches should take the lead because they are more closely connected to the people. According to Justice Antonin Scalia, The Constitution is not an empty bottle it is like a statute, and the meaning doesn’t change.

On the other side are supporters of judicial activism, in which judges make policy decisions and interpret the Constitution in new ways. Judicial activists believe that the federal courts must correct injustices that the other branches do not. For example, minority rights have often been ignored, partly because majorities impose their will on legislators. Prayers in public schools support the beliefs of the majority, but ignore the rights of the minority. The Constitution, then must be loosely interpreted to meet the issues of the present. In the words of former Justice Charles Evans Hughes: We are under a Constitution, but the Constitution is what the judges say it is.

Despite the debate over what constitutes the appropriate amount of judicial power, the United States federal courts remain the most powerful judicial system in world history. Their power is enhanced by life terms for judges and justices, and they play a major role in promoting the core American values of freedom, equality, and justice.

IMPORTANT DEFINITIONS AND IDENTIFICATIONS:


Adversarial system

Appellate jurisdiction

Civil law

Class action suits

Common law

Constitutional question

Criminal law

defendant

District Courts

Diversity cases

Dual court system

Dual sovereignty

Federal question cases

Gideon v. Wainwright

Justiciable dispute

Judicial activism vs. judicial restraint

Judicial implementation

Judicial review

Legislative courts

litmus test

Marbury v. Madison

Opinions: majority, dissenting, concurring

Original jurisdiction

Political question

Precedence

Public defenders

Rule of four

Senatorial courtesy

Solicitor general

Standing to sue

Stare decisis


Writ of certiorari

Writ of mandamus


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