The+Judiciary+-+Judicial+Review+and+the+Current+Supreme+Court


 * The Judiciary - Judicial Review and the Evolution of the Supreme Court**



This sections covers the evolution of the federal courts and does so by looking at three aspects of its evolution. The first is the acquisition of the power of judicial review (which had been argued should be a power of the court by Alexander Hamilton in Federalist #78) by the courts in the case of Marbury v. Madison in 1803. This is the principle power the court has over the actions of the legislative and executive branches and is a critical component of the overall system of checks and balances. It is also the most effective means of ensuring that the constitutional order is maintained -- which was one of Hamilton's arguments in favor of the giving the power to the court. Note the irony that the power that maintains the integrity of the Constitution was not written in the Constitution. Sometimes practicality trumps principle.

The fact that Congress can strike federal laws down because they find them unconstitutional leads to related questions: (1) how do they come to that decision, and (2) should they do so. The former question touches on how the members of the court choose to interpret the U.S. Constitution, or any other law. At its simplest, this boils down to whether the Constitution (constitutional language) should be interpreted narrowly -- where the words have limited meaning -- or whether it should be interpeted broadly -- where the words are to be assumed to be flexible and thus subject to reinterpretation. The second question concerns whether the courts should have an activist or restrained approach to this power. Should they see themselves as vigilant watchdogs of the Constitutional order and not hesitate to strike down any law or executive action that violates their understanding of that vision, or should they restrain themselves when there might be a close call and defer to the judgement of the electorate and/or their representatives? Both of these questions are highly disputed currently and are fit subjects for discussion.

A related point is worth injecting here. Judicial review allows an additional way that policy proponents can impact that policy, especially if they believe that there is a constitutional argument to make about an existing public policy. A lawsuit, or some strategically designed violation of the law can be engineered with the intent that a case questioning whether the law violates the Constitution reaches the Supreme Court, where it can be potential (//potentially// that is) struck down. This is called a test case, and some of the more famous cases in Supreme Court history have been test cases. This includes Brown v. Board of Education (which tested the constitutinality of school segregation) and Griswold v Connecticut (which tested the constitutionality of stat laws prohibiting birth control). The recent case involving the 2nd Amendment, DC v Heller, was also such a case. A second aspect of the court's evolution is its growth and periodic reorganization. Recall that Congress designs the courts in order to limit the posibility that the executive might unduly control teh courts. Below you will notice links to pages which discuss several of the bills introduced and passed by Congress over time which have led to the current design of the court system. These include the failed attempt by FDR to "pack" the court in 1937 by adding 6 new justices to a court that was actively striking down New Deal legislation. This section concludes with links to the current federal courts website, and a description of the current design of the courts.

The final evolutionary shift we will analyze is the nature of the personnel on the court. Though judges and justices are supposed to be neutral, the presidents who appoint them, and the senators who confirm them, are not. People are appointed to the court with the idea that they will decide cases in a particular way. For example, currently Republicans tend to support the appoint and confirm judges and justices who (they believe) will vote against federal regulations of business on the grounds that the rules passed by the executive agencies violated the separation of powers doctrine, while Democrats see these executive regulations as being justified under the commerce clause and support judges and justices who see things that way. Of course, as discussed in a previous section, once federal judges have lifetime tenure, they are free to decide as they choose without political pressure from the elected branches, so this is at best a guessing game, but more often than not the guesses are accurate. What this means is that over the course of American history, the courts have veered from side to side depending on which political forces have dominated the political branches. Since judges and justices hold their offices much longer than executive or legislative officers, the influence of these forces tends to be contained within the courts long after they have been dissipated in the elected branches. Generally the history of the courts is told in terms of which person happens to be the chief justice for a period of time. Since we have had 17 chief justices, we can break down the history of the courts in terms of those 17 individuals. Below you will see links to the three most recent Supreme Court chief justices (Warren, Burger, and Rehnquist) as well as the current chief justice, John Roberts. Over the course of the past 50 - 60 years, the Supreme Court has grown more conservative since each court was dominated more by Republican than Democratic presidents. We will come to terms with the nature of this gradual shift, what in fact it means for the specific decisions made by the courts.


 * Goals: You should be able to address the following after reading this section**


 * What is Judicial Review and how was it established in the case of Marbury v. Madison? What are the basic facts of the case?
 * What are the arguments for and against strictly and loosely interpreting the Constitution? Give examples.
 * What are the arguments for and against judicial restraint and judicial activism? Give examples.
 * Know the following terms: textualism, originalism, living constitution
 * What are the ideological conflicts associated with the above arguments.
 * What is a test case? Give examples.
 * How do cases get to the Supreme Court? What is the court's procedures? Why does the court tend to hear certain cases rather than others?
 * Have a general familiarity with the history of the Supreme Court.
 * What is the current design of the federal judiciary?
 * What was the court packing scheme?
 * What role does the Chief Justice play on the court?
 * Be familar with the courts of Earl Warren, Warren Burger and William Rehnquist.
 * What comments and observations have been made so far about the Roberts Court?
 * Who is on the current Supreme Court? What are they ideological leanings?


 * Blog Posts**


 * [|John Roberts].
 * [|John Paul Stevens].
 * [|Judicial Activism].
 * [|Judicial Minimalism].
 * [|Judicial Nominees].
 * [|Judicial Restraint].
 * [|Judicial Review].
 * [|Living Constitution].
 * [|Loose Construction].
 * [|Original Intent].
 * [|Sonia Sotomayor].
 * [|Strict Construction].


 * Judicial Review**

- Wikipedia: [|Federalist #78]. - [|Text of Federalist #78]. - [|The Judiciary Act of 1789]. - Exploring Constitutional Conflicts: [|Marbury v. Madison]. - Exploring Constitutional Conflicts: [|Judicial Review]. - Answers.com: [|Judicial Review].


 * How to Interpret the Constitution?**

- Strict Interpretation - Wikipedia: [|Strict Construction]. - Wikipedia:[|Textualism]. - Wikipedia: [|Originalism]. - [|Theories of Interpretation].

Loose Interpretation - Wikipedia: [|The Living Constitution].

Robert's Purported View: [|Judicial Minimalism].


 * What is the Court's Role?**

- Wikipedia: [|Judicial Activism]. - Wikipedia: [|Judicial Restraint].


 * Test Cases**

Definition: - Answers.com: [|Test Case]. Examples: - Wikipedia: [|Plessy v. Ferguson]. - Wikipedia: [|Brown v. Board of Education]. - Wikipedia: [|Griswold v. Connecticut]. - Wikipedia: [|DC v Heller].


 * How do cases get to the Supreme Court?**

[|Click here] to watch a three part video describing the process in the Oyez Project. Wikipedia: [|Procedures of the Supreme Court]. PBS: [|The Decision Process]. About.com: [|Supreme Court Procedures]. ussupremecourt.gov: [|About the Supreme Court].


 * Supreme Court History**

- [|The Supreme Court Historical Society]. - [|History of the Supreme Court]. - FindLaw: [|A History of the Supreme Court]. - Wikipedia: [|History of the Supreme Court]. - [|A Visual History of the Supreme Court].


 * The Organization of the Federal Courts**

- Wikipedia: [|The Judiciary Act of 1789]. - Wikipedia: [|Judiciary Act of 1793]. - Wikipedia: [|Judiciary Act of 1802] - Wikipedia: [|Judiciary Act of 1869] - Wikipedia: [|Judiciary Act of 1891] - Wikipedia: [|Judiciary Act of 1925] - Answers.com: [|Court Packing Scheme]. - [|Judiciary Reorganization Act of 1937]. - [|Court Packing].

The Inferior Federal Courts - [|The Federal Judiciary]. - [|The Federal Judicial Center].

Executive Institutions Involved in Judicial Matters: - Justice Department. - [|Office of Solicitor General].

Legislative Institutions Involved in Judicial Matters: - [|Senate Committee on the Judiciary]. - [|House Committee on the Judiciary].

- [|American Bar Association].


 * The Chief Justice**

- Wikipedia: [|Chief Justice of the United States]. - Answers.com: [|Duties of the Chief Justice of the United States].


 * Recent Eras of the Supreme Court**

- Wikipedia: [|The Warren Court]. (1953 - 1969) - Wikipedia: [|The Burger Court]. (1969 - 1986) - Wikipedia: [|The Rehnquist Court]. (1986 - 2005)


 * The Current Supreme Court.**

- Wikipedia: [|The Roberts Court] (2005 - present) - Wikipedia: [|John Roberts].

The Associate Justices: - Wikipedia: [|List of Justice to the U.S. Supreme Court]. - Wikipedia: [|Antonin Scalia] - Wikipedia: [|Anthony Kennedy] - Wikipedia: [|Clarence Thomas] - Wikipedia: [|Ruth Bader Ginsburg] - Wikipedia: [|Stephen Breyer] - Wikipedia: [|Samuel Alito] - Wikipedia: [|Sonia Sotomayor] - Wikipedia: [|Elena Kagan]


 * Ideological Disputes**

Ideology on the court The nature of recent decisions. Influence of recent presidential selections

Design of the Judiciary

The Supreme Court: - [|The United States Supreme Court]. - Wikipedia: [|Chief Justice of the United States.] - NYT Topics: [|The Supreme Court]. - Wikipedia: [|The Supreme Court].

Notable Supreme Court Justices: - Wikipedia: [|List of Justices of the Supreme Court.] - [|John Jay]. - [|John Marshall]. - [|Joseph Story]. - [|Oliver Wendel Holmes]. - [|William Howard Taft]. - [|Earl Warren]. - [|William Rehnquist].

The Texas Judiciary - [|The Supreme Court of Texas]. - [|The Texas Court of Criminal Appeals]. - [|Texas Court Structure].

- Texas Solicitor General. - [|Texas House Committee on the Judiciary and Civil Jurisprudence]. - [|Texas Jurisprudence Committee]. - [|Texas Center for the Judiciary]. - [|The State Bar of Texas]. - [|William Wayne Justice].

[|Supreme Court] [|Supreme Court] [|The Supreme Court Historical Society] [|Oyez Project] [|Landmark Supreme Court Cases] [|Exploring Constitutional Law] [|Principles of Constitutional Construction] [|Theories of Constitutional Interpretation] [|The Right to Privacy] [|The Original Meaning of the Commerce Clause]
 * Sources**


 * Past written questions:**

1 - Thoroughly define judicial review and the problems associated with it. Discuss how the power evolved and what argument Marshall used to justify it when he claimed the power in Marbury v. Madison. - [|The Judiciary Act of 1789]. - Exploring Constitutional Conflicts: [|Marbury v. Madison]. - Exploring Constitutional Conflicts: [|Judicial Review]. 2 - Outline the controversies associated with how the Constitution ought to be interpreted. What are are the arguments and disputes associated with strict and loose interpretations of the document? The following links should be useful to you: - [|Principles of Constitutional Construction]. - [|Theories of Constitutional Interpretation]. - [|strict constructionism.] - [|originalism.] - [|textualism.] - [|Living Constitution.] 3. An additional dispute involves the degree to which the justices on the Supreme Court should interject their own opinions and theories about public policy and governance when they decide to apply judicial review to a particular case. I want you to outline the disputes associated with active and restrained decisions. What are the pros and cons of each? Use your searching skills to find examples of a restrained decision and an active decision. - [|Judicial activism.] - [|Judicial restraint.] 4 - One of the more noteworthy cases of recent years was [|DC v. Heller], which helped clarify the meaning of the [|Second Amendment]. I want you to describe the case and explain how it got the Supreme Court. More importantly, I want you to outline the arguments made on each side. Summarize the [|majority] decision as well as the two dissenting opinions ([|here] and [|here]). What was the major dispute between the two sides, and between the two dissenters? 5 - We've been discussing in class the recent case of Citizens United v. the Federal Election Commission. It has become quite controversial not just because of its substance -- the treatment of corporate donations as if they were donations by private individuals -- but because it seemed to show the willingness of the current Supreme Court to change century old prudence. This had led some to wonder what else they may be prepared to do. Review the case thoroughly and describe what the case was actually about. How did it reach the Supreme Court? What various comments are being made about it from different commentators? - For basic information about the case go to this page on the Oyez Project: - [] 6. Fully outline the controversies associated with judicial review and discus the conflict between those who think that the Constitution should be interpreted strictly and those who think it should be interpreted loosely. 7. Also detail the conflict involving judicial restraint and judicial activism.Be sure to define each. What are the relative arguments for and against each approach to judicial power. Using your web searching skills, find current examples of each. 8. Justice John Paul Stephens seems to be considering retirement. Investigate him, detail his influence on the court, and forecast what his retirement from the court is likely to mean for the court itself. What might lie ahead for his potential replacement? 9. As fully as you can, describe the current composition of the [|Texas Supreme Court] and [|Court of Criminal Appeals]. Be sure to discuss the impact that elections have on the behavior of these courts. 10. As fully as you can, describe the nature of the current composition of the U.S. Supreme Court. Who is on it? What are the ideological leanings of each? What direction does the court seem to be heading? - Times Topics: The [|Supreme Court]. - Washington Post: The [|Supreme Court]. 11. Answer the question above, but this time for the [|Texas Supreme Court] and [|Court of Criminal Appeals]. Be sure to discuss the impact that elections have on the behavior of these courts. - Report from [|Texans for Public Justice]. 12. Investigate the municipal court system for your city or county. Select one of the people who occupy one of the "lower" positions in the judiciary and provide information about them and their job description. 13. A number of interesting people have served on the U.S. Supreme Court. I've linked you information about a small handful of them above, it isn't difficult to find information about all of them. Select one and describe them and the nature of the influence they had on the court. 14. Select a recently decided Supreme Court case, and summarize the decision. Select a case from the following site: Oyez: [|Cases from the 2008 term], click on the case you select (you may wish to do some research to determine which case to select), then look to the left. Under "Case Basics" you will see the word opinion. Click on that, then click again on the case you selected. This will take you to the actual Supreme Court decision. This is what I want you to summarize. They tend to be long, so don't get bogged down in detail, just hit the main points. 15. We recently witnessed one of the few times in American history that hearings have been held on a new Justice for the Supreme Court. Review the arguments that were presented for and against Sonia Sotomayor. What impact is she likely to have on the Supreme Court? You should be able to do a google search for relevant news items.