Lesson Five—The Courts

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Lesson Five—The Courts
California Content Standards


Describe the principles of federalism, dual sovereignty, separation of powers, checks and balances, the nature and purpose of majority rule, and the ways in which the American idea of constitutionalism preserves individual rights.


Analyze the rise of capitalism and the economic problems and conflicts that accompanied it (e.g. Jackson’s opposition to the National Bank; early decisions of the U.S. Supreme Court that reinforced the sanctity of contracts and a capitalist economic system of law.


Compare the conflicting interpretations of state and federal authority as emphasized in the speeches and writings of statesmen such as Daniel Webster and John C. Calhoun.

These days, when we talk about the courts and the question of “democratic institutions,” we can hardly avoid bringing to mind the current brouhaha over “activist judges.” So I want to begin here. [Put up quotation—read it or, better yet, have it read.]

Wednesday, August 18, 2004 SeattlePI.com (Seattle Post-Intelligencer)

Activist judges? What's in a name?



“There is probably nothing I can do or say to convince you that the words "activist judge" have no more meaning than the words "hectic smurlbats." You've heard "activist judges" so many times -- from the president, from Congress, from the angry guys on the radio -- that you can define it right along with me. Together then: Liberal activist judges make law, as opposed to interpreting it. They ignore the plain meaning of texts to invent new rights. Superimposing their moral views onto their legal reasoning, they brazenly advance the cause of the fringe liberal elites in the culture wars.”

Do what with this?

The debate over “activist judges” hinges in part on questions not only of what the courts—particularly the Supreme Court—are supposed to do but what they actually do. The criticism of judges through sound bytes assumes that we don’t really know how the courts work and what their role is in shaping laws and the Constitution. Historically of course, this question has been much debated too.

What I’d like to do today [reference a couple of books for more information] is to look at one aspect of the courts’ work, how it came about, and how it operated around on particular issue.
A. Judicial Review
What is “judicial review”? [The responsibility of the court (U.S. Supreme Court) to be the arbiter of constitutional questions. Is a law constitutional? If so, the Court upholds it. If not, it strikes it down. In fact, state courts do this with state constitutions, and lower federal courts also make constitutional rulings. But constitutional questions may be appealed all the way to the U.S. Supreme Court, which is the final arbiter (unless and until a change is made to the Constitution itself).
Where does it come from?

-U.S. Constitution: Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. [Defines what courts there will be and how judges will hold office. Does not define “judicial power.”

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. [Defines judicial power. But does not specify whether “all cases arising under this Constitution” means that the Court has the authority to strike down laws.]

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. [Defines jurisdiction.]

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. [Procedures]

-In fact, “judicial review” is not clearly part of the court’s purview in this language. So whence does it arise? Let’s look at the language of some key cases that helped establish “judicial review.” [NOTE: Usually we cover this as Marbury v. Madison, but it did not stand alone. Part of a debate over this issue.]

Lessee v. Dorrance

Marbury v. Madison

Eakin v. Raub [argument AGAINST judicial review]

Cohen v. Virginia [argument for federal review of state laws]
-Make a chart: What kind of questions are at stake?

How does the “pro” position answer them?

How does the “anti” position differ?

What is the basis of the argument in each case?

-In sum: The outcome of these cases is that the authors of the opinions argued (in all the cases except E v. R) with the full power of the court behind them, that the Constitution implied the right of judicial review though it does not state it explicitly. The dissenting justice whose opinion we read in E v. R believes that the power to challenge the constitutionality of a law rests with the legislature itself.
B. How the Supreme Court operates today.

  • 5000 cases per year appealed to the court

  • 90% rejected

  • Only about 150 accepted for full argument

  • 4 out of 9 justices must want to review the case

  • Oral arguments

  • Briefs

  • Amicus Curiae Briefs

  • Conference (Fridays)

  • 5 out of 9 must agree for the court to have reached a decision

  • Write opinion(s) and dissent(s)—Any justice may change sides until the final decision is announced.

  • The decision is then used as precedent by the lower courts.

C. But how does the court decide if a case is unconstitutional or not? Once you accept the principle of judicial review, the question of “activist judges” rests on this. What tests do the judges apply to make their decisions? Are there rules? Are decisions purely political? What happens if the judges are “wrong”—is there any recourse?

To answer some of these questions, let’s look at a series of cases in the 19th century in which the court assessed the constitutionality of state or federal laws pertaining to slavery and freedom.
-Give each group a case (translated/excerpted)—7 in all

-What are the facts of the case?

-What constitutional issue is at stake?

-What criteria did the justice who wrote the opinion use to support his point?

-To what extent does the judge’s personal or political opinion come through in this decision?

-What is your assessment of the judge’s argument?
-Report out [how???]

What if (someone thinks) the judges are wrong? Part of the argument now being made against “judicial activism” is that there is no recourse. [Discuss]

-executive just ignored it (Jackson)

-Constitutional Amendment (Gay Marriage)

-Change the court (FDR) or laws governing its jurisdiction (habeas corpus in CW)

-Court narrow or overturn decision (Brown)

-NOTE: This system relies on respect for the law and the courts on all sides. The court has no power to enforce its decisions. But what happens if people stop respecting the courts?

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