Political Institutions: The Congress

Political Institutions: The Congress

The Federal Court System and Justice For All The Adversarial System Courts settle civil disputes between private parties, a private party and the government, or the United States and a state or local government. Each side presents its position. The court applies the law and decides in favor of one or the other. Prosecuting the accused Courts also hold

criminal trials for people accused of crimes. Witnesses present evidence and a jury or a judge delivers a verdict of guilt or innocence. Rights of the Accused All accused people have the right to a public trial and a lawyer. If they cannot afford a lawyer, the court will appoint and pay for one. (Gideon v. Wainwright, 1963) Accused people are considered innocent until proven guilty. They may ask for a review of

their case by a higher court if they think the court has made a mistake. This The American Legal System The goal of the legal system is equal justice under the law. This goal is difficult to achieve. Why is the goal of equal justice under the law difficult to achieve? The US Federal Court System U.S. District Courts District courts are the

federal courts where trials are held and lawsuits are begun. All states have at least one. For all federal cases, district courts have jurisdiction, original District courts hear both civil and criminal the authority to hear the cases. for the theonly firstfederal time. courts that involve case

They are witnesses and juries. U.S. Courts of Appeals People who lose in a district court often appeal to the next highest levela U.S. court of appeals. Appeals courts review decisions made in lower district courts. This is appellate jurisdictionthe authority to hear a case appealed from a lower court. The US Circuit Court of Appeals Each of the 12 U.S. courts of appeals covers a particular geographic area called a circuit. A thirteenth appeals court, the Court of Appeals for the Federal Circuit, has nationwide

jurisdiction. Appeals courts do not hold trials. Instead, a panel of judges reviews the case records and listens to arguments from lawyers on both sides. The judges may decide in one of three ways: uphold (AGREE) the original decision, reverse (disagree) the The Supreme Court Justices The main job of the nation's top court is to decide whether laws are allowable under the Constitution. The Supreme Court has original jurisdiction only in cases involving foreign

diplomats or a state. All other cases come to the Court on appeal. The Court chooses the cases it hears through the writ of Certiorari. The Court chooses the cases it hears. In cases the Court refuses to hear, the decision of the lower court stands. The Current Supreme Court The president appoints Supreme Court justices, with Senate approval. The president's decision may be influenced by the Justice Department, American Bar Association, interest groups, and other Supreme Court justices. The court has final authority on cases involving

the constitution, acts of Congress, and treaties. Eight associate justices and one chief justice make up the supreme court. Service Name, state Antonin Scalia, DC Birth Assoc. Chief Justice Justice Place

Date uReligion N.J. 1936 Roman Catholic Calif. 1936 Roman Catholic Ga. 1948 Roman Catholic

N.Y. 1933 Jewish Calif. 1938 Jewish N.Y. 1955 Roman Catholic 2006

N.J. 1950 Roman Catholic 2009 N.Y. 1954 Roman Catholic 2010 N.Y. 1960

Jewish 1986 Anthony M. Kennedy, 1988 Calif. Clarence Thomas, 1991 DC Ruth Bader Ginsburg, 1993 DC Stephen G. Breyer, 1994 Mass. John G. Roberts,

2005 DC Samuel A. Alito, Jr., N.J. Sonia Sotomayor N.Y. Elena Kagan N.Y. Powers of the Court The Court's main job is to decide whether laws and government actions are constitutional, or allowed by the Constitution. It does this through judicial reviewthe power to say whether any law or government action goes against the Constitution. The legislative and executive branches

must follow Supreme Court rulings. Because the Court is removed from politics and the influences of specialinterest groups, the parties involved in a Marbury v. Madison The Constitution does not give the Supreme Court the power of judicial review. The Court claimed the power when it decided the case Marbury v. Madison. As President John Adams was leaving office, he signed an order making William Marbury a justice of the peace. The incoming

president, Thomas The Power of Judicial Review In the Court's opinion, Chief Justice John Marshall set forth three principles of judicial review: (1) The Constitution is the supreme law of the land. (2) If a law conflicts with the Constitution, the Constitution rules. (3) The judicial branch has a duty to uphold the Constitution. Thus, it must be able to determine when a law conflicts with the Constitution and nullify that law. Through its rulings, the Supreme Court interprets the meaning of laws,

Limits on the Courts' Power The Court depends on the executive branch and state and local officials to enforce its decisions. Usually they do. Congress can get around a Court ruling by passing a new law, changing a law ruled unconstitutional, or amending the Constitution. The president's power to appoint justices and Congress's power to approve appointments and to impeach and remove justices serve to check the power of the Court. The Court cannot decide that a law is unconstitutional unless the law has been challenged in a lower court and the case comes to it on appeal. The Court accepts only Websites http://supremecourt.c-span.org/Video/Virtu

alTour/SC_VT_EastPediment.aspx http://www.pbs.org/wnet/supremecourt/ind ex.html http://www.youtube.com/watch?v=Unyswl 36q8w The Supreme Court The Supreme Court of the United States is often referred to as the Court of Last Resort, because it is the highest court in the United States; there is no court with higher authority. Also, except for specific limited case types specifically listed in Article III of the Constitution, all cases that reach the Supreme Court have been heard and are on appeal from the decisions of lower courts across the nation.

Steps to the Supreme Court Once a case works its way through the lower courts, a party may petition to have their case heard by the Supreme Court. However, the Supreme Court of the United States has great latitude in which cases it will hear. The Supreme Court receives thousands of requests to hear cases, which are called petitions for certiorari. Of these many requests, the Justices will agree to hear only a handful, generally less than 100, cases per term. The Supreme Courts term begins the first Monday of October and ends the first Monday of October the following year. In order for a case to be heard before the Supreme Court, four of the nine Justices of the court must agree to hear the case. Steps to the Supreme Court

If certiorari is granted, the time frame for the parties involved in the case is set. The petitioner (the party that has requested the Court review the case), has 45 days to file their brief on the merits, which lays out their arguments to the court. The respondents (the other party) then has 30 days to respond. Amicus (friend of the court) brief filing deadlines are a few days after the deadline for the side that they support. These times are set by the rules of the Court, and may only be extended with the permission Steps to the Supreme Court The next step for the case will be oral arguments before the Supreme Court.

The case will be placed on the Courts calendar for some time in the Fall or the Spring. And when the day comes, one attorney for each side will stand before the Justices for their oral argument and will present their case to the Justices. The attorneys will have only a set time (generally 30 minutes apiece) to plead their case before the Court. However, any Justice may interrupt at any point to ask questions or debate a point with the attorney; so the attorney must think quickly on their feet, and know the law and their case inside and out. So even though an attorney has 30 minutes to plead their side of the case, Justices questions and attorneys answers can go on for much longer. Steps the Supreme Court Afterto

oral arguments, the Court will deliberate on the matter, and will release a written opinion at some point before the term in which the case was argued ends. Opinions are generally released on Thursdays, but it is not known when the opinion for a specific case will be released. Once the opinion is released, it will represent the law of the land, and creates precedence that will shape The Supreme Court 1st Amendment Cases By law, the Court opens the first Monday in October of each year. The session usually ends in June. 2012 Calendar Morse v. Frederick

Bond v. Floyd Engle v. Vitale Impact The Supreme Court decisions involving the rights identified in the first ten amendments of the United States Constitution can have a profound effect on ones personal freedoms (or liberties). The Courts decision may strengthen, weaken, or somehow alter our right of free speech, freedom of religion, freedom of the press, etc. Individual rights may be weakened for the benefit of the majority, or majority Supreme Court Justice for the Day

Use the following websites to find a Supreme Court case decided on First Amendment grounds. The case must relate to speech, expression, religion, assembly, petition, and press. a.Legal Information Institutes Supreme Court Collection ( http://www.law.cornell.edu/supct/cases/ topics/tog_first_amendment.html ) b.Oyez (http://www.oyez.org/) c.Supreme Court of the United States ( http://www.supremecourtus.gov/) Supreme Court Justice for the Day Once you choose a Supreme Court Case, check in with me for approval Once your case is approved, find the

decision using one of the above sites. Read and summarize the majority and minority opinions. After the case has been read, decide whether to side with the majority or minority opinion. Then draft an opinion encompassing the following elements: Identify the First Amendment right in question. Summarize the facts or history of the case, the key issue(s) involved, and the decision of the Court, including a summary of the majority and minority opinions. Identify and defend you vote by writing an opinion supporting you decision. In addition, state whether you opinion will strengthen or weaken the First Amendment right in question.

The opinion should be typed-written, double spaced, and not exceed 750 words. In addition, you will present a summary of your opinion during the next class period if time permits. Political Institutions: The Courts INTRODUCTION TO THE FEDERAL COURTS Types of law Statutory: deals w/written statutes

(laws). Common. Based upon a system of unwritten law. Unwritten laws are based upon precedents. Judges rely upon the principle of stare decisis ("let the decision stand"), i.e. they rule according to precedent. This is the basic system of law in Britain. Criminal: concerns violations of the criminal code, i.e., violations against society. Civil: concerns disputes (torts) between

two parties rather than violations against society. Examples: breach of contract, slander, medical malpractice. Writ of mandamus: court order for one party to perform a certain act. Injunction: court order that forbids a THE FEDERAL COURTS Judicial power is passive. A. Courts cannot reach out and "take" cases. Cases must come to them. B. There must be an actual case (controversy) for a court to make a ruling.

Courts cannot create cases. Only those with standing may challenge a law or govt. action, i.e., only one who has sustained or is near sustaining an "injury" may bring a case to court. One cannot challenge a law simply because one does not happen to like it. FEDERAL COURTS Judicial law-making. Judges, contrary to what some may think, are not simply impartial referees who only carry out the law. Judges

interpret the law, and in so doing in fact make law. It is necessary that they make law because: Statutes are often broadlyworded, unclear, or contradictory. The Constitution is certainly broadly-worded, and requires interpretation. Thus, interpretation of statutes and the Constitution is, in effect, making law: "The Supreme Court is the "The Supreme Court is a constitutional

convention in continuous session. (Woodrow Wilson) Evidence of judicial law-making. Courts have ruled > 1000 state laws as being unconstitutional. Courts have ruled > 1300 federal laws as being unconstitutional. The Supreme Court has reversed itself >200 times since 1810. Courts, since the 1960's, increasingly seem willing to rule on political questions rather than solely on legislative or constitutional questions (e.g., Baker v. Carr, Wesberry v. Sanders, Shaw v. Reno, Bush v. Gore). THE FEDERAL COURTS Jurisdiction: 4 types: Exclusive: sole authority of a

federal court to try a case. Concurrent: authority of both a federal and a state court to try a case. C. Original: authority of a court to first try a case. D. Appellate: authority of a court to hear a subsequent appeal. Jurisdiction of federal courts. Federal courts may try a case if it involves: The Constitution, a federal law, or a treaty. Admiralty law (matters on high seas) or maritime law (matters on land but relating to water). Disputes between two or more states.

The U.S. government as a party. THE FEDERAL COURTS Dual system of courts: In our federal system, we have both federal and state courts. We are only going to focus on the federal courts. Structure of the federal court system. Two types of federal courts. Article I (legislative, or special) courts. Created to carry out the enumerated powers of Congress. Judges in these hold fixed, not life, terms of office. Examples of these courts:

Claims Court: hears lawsuits against the federal government. Court of Military Appeals. District of Columbia Courts. THE FEDERAL COURTS Article III (constitutional) courts. Article III of the Constitution deals with the judiciary, and creates a Supreme Court while also giving Congress the power to create "inferior" (lower) courts. These three levels of courts form the main basis of our federal court system. Judges in these courts hold life terms. The three levels of constitutional courts: District Courts: Handle 90% of all federal cases.

4 such courts, ~610 judges. Cases are tried by a judge and jury. Use grand juries to issue indictments (orders that charge an individual with a crime. Does not mean that one is guilty; it merely means that one will be tried.) A petit (trial) jury decides the outcome of a case. Use magistrates, who issue warrants, hold preliminary hearings, and set bail. Jurisdiction: original. May try civil, criminal, or constitutional cases. Decisions may be appealed to Courts of Appeals. Recent problems of high turnover among judges. THE FEDERAL COURTS Courts of Appeals (Circuit Courts).

Are 12 of these, spread out in 12 districts, or "circuits." 156 judges try > 18,000 cases a year. Cases heard by a panel of three judges, except when all judges of a Circuit Court hear a case "en banc." Jurisdiction: appellate. Hears appeals from District Courts and regulatory commissions. Decisions may be

appealed to the FEDERAL ATTORNEYS AND JUDGES Federal attorneys. Attorney General. Appointed by President w/Senate consent. Head of Justice Dept. Solicitor General. Appointed by President w/Senate consent. Represents U.S. government in Supreme Court. Decides which cases the federal government will appeal to the Supreme Court. Decides the federal government's position in these

cases. Sometimes called the 10th Justice of the Supreme Court because of his influence there. FEDERAL ATTORNEYS AND JUDGES U.S. Attorneys. At least one for each District Court, 94 in all. Prosecutes federal criminal cases before the District Courts and Courts of Appeals,

though most cases are settled by pleabargaining. Represents U.S. government in civil cases before these same courts. Appointed by the President for 4-year terms. Key patronage positions. Senatorial courtesy applies in their FEDERAL ATTORNEYS AND JUDGES Federal judges. Appointed by President

with advice and consent of Senate. Article III states that they shall hold their offices "during good behavior," i.e., for life. They can, however, be impeached and removed by Congress (very rare -- only a handful of removals in >200 years). Compensation: Determined by Congress, though compensation

cannot be lowered during judges' terms of office. 2009 salaries: District Court: $169,300 Courts of Appeals: 179,500 Supreme Court: 208,100 FEDERAL ATTORNEYS AND JUDGES Factors affecting selection of federal judges: Senatorial courtesy: When appointing for the District Court, the President must consult with the two Senators from the state in which they are to be appointed. The Senate will then show

courtesy to those two senators by not confirming judges to whom the two senators object. Senate Judiciary Committee: Screens the nominees, and sends a recommendation to Senate floor for approval or rejection. In recent years, has given more scrutiny to appointments, particularly those at the Supreme Court level (e.g., Bork hearings (the Bork Battle), Clarence Thomas "high-tech" lynching (the Thomas Tangle). These disputes led to the nomination of David Souter (the Souter Solution). The committee held up confirmation of many of Clintons

lower court judges for months, and even years (44 months in one case). Robert Bork Rejected for Sup reme Court FEDERAL ATTORNEYS AND JUDGES Senate: Majority vote needed for confirmation. Has refused to act upon, or has rejected, ~21% of Supreme Court nominees in the 20th century. Political parties: judges are generally from the same political party as the President. FEDERAL ATTORNEYS AND JUDGES Diversity: Race: Mostly white.

Carter appointed more minorities than all the previous Presidents combined. Clinton also appointed numerous minorities to the fed. bench "Black seat" on the Supreme Court was established by Thurgood Marshall ---> Clarence Thomas. 17% of Clintons appointments were black. Sex: Mostly male. Carter appointed more women than all the previous Presidents combined. 25% of Clintons appts. female With retirement of Sandra Day OConnor, one woman (Ruth Bader Ginsburg) was on the Supreme Court during the latter part of the Bush Administration. With retirement of David Souter, another woman (Sonia Sotomayor) was added to the Supreme

Court. FEDERAL ATTORNEYS AND JUDGES Age: Since judges have lifetime appointments, judges may live on long after the Presidents who appoint them die. (Pres. influence continues after they leave office.) Ideology of prospective judges. a. Presidents generally try to appoint people of similar philosophy. This is difficult to ensure, however: Predicting future behavior on the part of judges is at best an imperfect science. New issues may arise which the President could not have possibly considered. Since judges have life terms, Presidents can

do nothing about decisions they do not like. Approximately 25% of Supreme Court judges "stray" from the philosophy that had been anticipated by the Presidents who appointed them (e.g., Warren, Brennan, Souter). Ideology also can affect the decision of a judge to retire, e.g., a judge may want to delay retiring until there is a President with a more favorable philosophy. Ikes biggest mistake: Earl Warren FEDERAL ATTORNEYS AND JUDGES American Bar Association evaluates nominees. Not used by Bush 43, but Sen. Judiciary Committee still considers ABA

ratings Existence of a "paper trail," e.g., with Robert Bork (the Bork Battle). If a prospective judge has written extensively, his writings may be used against him during confirmation hearings. Bush 41, for example, did not want to undergo a confirmation hearing battle with a nominee who had an extensive paper trail, so he played it safe by nominating David Souter, who was such an unknown that he was dubbed the "stealth candidate" (the Souter Solution). FEDERAL ATTORNEYS AND JUDGES Number of judges: Congress can

increase or decrease the number of courts and judges. If it has a President of the same party, it would be more likely to increase the number than if it has a President of the opposing party. If it had a VERY undesirable President, it could reduce the number of judges by not allowing vacancies to be filled of judges who had retired or died. This was done by Congress in the Andrew Johnson administration, when the size of the Supreme Court shrank from 9 to 7. THE SUPREME COURT Background. Only court mentioned in Const. (Article III).

Consists of 8 Associate Justices and 1 Chief Justice. Number of Justices is set by Congress. When position of Chief Justice is vacant, the President can appoint someone already on the Court (e.g., Rehnquist) or someone who is not on the Court (e.g., Roberts) Highest court in the land -- the court of last resort. THE SUPREME COURT Key powers: Power of judicial review

(established by Marbury v. Madison, 1803). More than 1000 state laws have been declared unconstitutional. More than 1300 federal laws have been declared unconstitutional. Some presidential actions have been declared unconstitutional. Power to interpret broadlyworded laws of Congress and the Constitution. Power to overrule earlier Supreme Court decisions (e.g., Brown v. Board overturning Plessy v. Ferguson

THE SUPREME COURT Jurisdiction. Original: in cases involving: States. Ambassadors. Appellate: in cases from: Courts of Appeals. State supreme courts. -- Cases from appellate jurisdiction are far more numerous than from original jurisdiction.

THE SUPREME COURT How cases reach the Supreme Court. Supreme Court controls its own docket. Thousands of requests are made for Supreme Court decisions, but relatively few requests are granted. Recent trend is for even fewer cases to be accepted each year. (~80 per year). Rule of 4: In order for the Court to decide a case Justices must agree to do so. Denying a decision may mean any number of things: Case lacks a substantial federal issue. Party lacks standing.

Court agrees with a lower THE SUPREME COURT When a party requests a Supreme Court decision, it files a petition for a writ of certiorari ("to be made certain). These petitions are screened by the Court's law clerks, and then reviewed by the Justices on the rule of 4 basis noted above. When the Justices accept a case, they then decide whether to ask for more information and oral arguments from the attorneys or whether to decide the case quickly on the basis of the attorneys briefs. Cases decided without further information are announced with a per curiam opinion. This is a very brief unsigned statement of the Court's decision. THE SUPREME COURT

Term begins on first Monday in October and continues until the end of June. Hears cases from MondayThursday. Quorum of 6. Before oral arguments, the Justices read the attorneys' briefs. Justices also read amicus curiae ("friend of the court") briefs. Justices hear 30 minute

oral arguments from each side. At the Friday conference, Justices discuss the cases. Simple majority needed for decisions. In case of ties, previous court decision stands. The Drug Free Schools Act Was An Amicus Curiae Brief THE SUPREME COURT Written opinions: Types:

Unanimous: expresses opinion of all nine Justices. ~1/3 of the cases are decided by a 9-0 vote. Majority: expresses opinion of majority. Dissenting: expresses opinion of minority. If the Court later overturns itself, it may draw upon a minority opinion for its reasoning. Concurring: written by a Justice who agrees with majority's conclusions, but for different reasons.

THE SUPREME COURT Assigning of opinions. If Chief Justice voted with the majority, he assigns someone in the majority to write the opinion. If the Chief Justice is in the minority, the most senior Justice among the majority assigns the opinion. THE SUPREME COURT The politics of opinion-writing. Assigning the opinion is a key

power of the Chief Justice: it enables the Chief Justice to get the right "slant" on the issue. Majority opinion writer must be careful not to alienate others in the majority, because they may change their minds and switch positions. The majority opinion writer must therefore structure the argument in such away as to keep the support of at least four other intelligent, independent Justices, any of whom may threaten to "jump ship" and switch his/her vote.

Threat of a dissenting opinion can sometimes convince the majority to bend a bit in certain parts of the Chief Justice Rehnquist Wore Stripes THE SUPREME COURT Purposes of opinions. Communicate the Court's reasoning to the public. Establish precedents for future cases -importance of stare decisis. Drop "hints" that Congress, the states, or the President should

take certain actions, e.g., In the absence THE SUPREME COURT Possibility of evading Court decisions: The Supreme Court is the highest court in the land, but it is possible of evading Court decisions: Amending the Constitution. The Court cannot strike down something as

unconstitutional if it is in the Constitution! When a decision is made, it is "remanded" to a lower court to carry out the Supreme Court's decision. The lower court will have a certain amount of leeway in doing this. The executive branch may simply not carry out the decision (e.g., Jackson's famous line: "John Marshall has made his decision. Now let him enforce it.") State and local governments may simply not carry it out, either (e.g., desegregation, school prayer) "The Constitution may be what the Supreme Court says it is, but a Supreme Court opinion is what a trial judge or a policeman or a school board or a city council says it is." THE SUPREME COURT

Voting blocs on the current Supreme Court. Liberals Elena Kagan Sonia Sotomayor Stephen Breyer Ruth Ginsburg Conservatives.

John Roberts Antonin Scalia Clarence Thomas Samuel Alito Associate Justice Sonia Sotomayor THE SUPREME COURT Swing/moderate conservative. Anthony Kennedy Swing Vote Anthony Kennedy JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Judicial activism. Philosophy that the

courts should take an active role in solving societys problems. Courts should uphold the "guardian ethic:" they act as a guardian of the people. Examples of Judicial Activism Striking down Topeka School Boards policy of

seg. in Brown v. Board (1954) Striking down a Texas law that banned flag burning in Texas v. Johnson, 1989, and then striking down a congressional law that banned flag burning (US v. Eichmann) Striking down the Gun Free School Zones Act in US v. Lopez, 1995. Striking down line item veto in Clinton v. NY 1998 Striking down Florida recount in Bush v. Gore 2000 Striking down state death penalties for mentally retarded in Atkins v. Virg., 2002 Striking down a Texas sodomy law in Lawrence v. Texas Striking down a DC city ordinance banning handguns in DC v. Heller, 2008 JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Judicial restraint.

Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems. Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers. Courts should merely interpret the law rather than make law. Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders

wanted. Associate Justice Antonin Scalia is a Strong Proponent of Judicial Restraint JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Historical developments. In 20th century, prior to 1937, liberals complained about the conservative Court being too activist when it struck down various reform-minded laws (e.g., minimum wage, banning child labor, NRA, AAA). FDR responded with his "court-packing" attempt

in 1937 ---> failed, but the Court, in its famous "switch in time that saved nine," began to accept New Deal legislation. FDR Packing Event Characterized in Satire JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Now, it was the conservatives who began to complain about the liberal Court being too activist, especially with the advent of the Warren Court (1954-1969). Conservatives began to complain about the Court's judicial activism in: Rights of the accused, e.g., requiring the police to issue "Miranda warnings." Civil rights, e.g., desegregating public schools in Brown v. Board.

Civil liberties, e.g., of prohibiting prayer in school. Political issues, e.g., Baker v. Carr, 1962. The Burger Court (1969-1986) was less activist than the Warren Court, but still upset conservatives with decisions such as Roe v. Wade and UC Regents v. Bakke JUDICAL ACTIVISM V. JUDICIAL RESTRAINT We have now come full circle because the Rehnquist Court (19862005) was accused by liberals of being too activist -- when it overturns liberal precedents, liberals accuse the Court of being excessively activist, e.g.: Overturning Gun Free School Zones Act

Overturning Florida Supreme Court decisions in election of 2000 Overturning Californias Proposition 215 that legalized medical use of marijuana Similar views are held about the Roberts Court Chief Justice Rehnquist JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Restraints on judicial power. Courts can make

decisions, but cannot enforce them Courts cannot reach out and take cases, but must wait for the cases to come to them. Courts can rule only on real, live controversies. They cannot create cases. Presidential How Much Judicial Restraint for CJ John Roberts? JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Congress.

Senate confirmation of judges. Impeachment and removal. Increasing the number of courts and judges, and thus the type of judges to Congress' and the President's liking. For example, in 1979, Congress (Democratic) created 152 new District and Appeals Court positions. Coupled with resignations and retirements, President Carter (Democratic) ended up appointing 40% of all federal judges during his one term of office. Passing constitutional

amendments (e.g., 14th Amendment overturned the Dred Scott decision, 16th Amendment allowed for an income tax that the Supreme Patrick Leahy, Chairman of the Senate Ju diciary Committee JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Congress (continued) Re-passing a law that was unconstitutional in hopes that the Supreme Court will change its mind. Determining the jurisdiction of the courts -- what kinds of cases the courts can and cannot have.

Article III, Section 2 of the Constitution may give Congress the power to prevent the Supreme Court from hearing certain types of cases (In all other cases the Supreme Court shall have appellate jurisdiction with such exceptions as Congress shall make.) Stare decisis. Existing laws. Flag Defamation versus Free Speech JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Public opinion: The Supreme Court probably does not "follow the

election returns in the short run because the Justices were appointed by previous Presidents for life terms. In the long run, however, the Court will probably reflect public opinion because the Justices are appointed by Presidents who were elected by the people Federalist Papers

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