Introduction American government this small jewel focuses

Welcome back to political science 21 introduction American government this small
jewel focuses on the final branch of the federal government the federal judiciary
I’m going to be talking primarily about the Supreme Court here but I think a lot of
what I say about the Supreme Court applies to the the lower 2 courts the circuit
court and the District Court. In this lecture I’m going to be looking at the
foundations of the powers of the court and let me begin by presenting sort of 2
views of the federal courts 1 sort of notion and this comes out of the Federalist
Papers is that the courts are the least dangerous of the 3 branches Why is that
well they would be less able they are less able by their sort of institutional
structure to be a threat to our individual liberties and consequently I think the
founders perhaps have a little less thought to the courts as an institution
recognizing that their structure would be less likely to tear in our eyes
tyrannized the country. Why is that well they they were less defined in the in the
Constitution I’ll talk about a specific I think gap in the Constitution in a moment
but I think realistically at least early in the court’s history they just had less
ability to do things why was that Will the there weren’t that many judges and their
responsibility was very challenging so in the early era if you were on the Supreme
Court which had relatively few court cases in the early years you also served as
the circuit court judge for 1 of the parts of the country and you literally had to
ride your horse our I guess you could take a carriage you had to go out from
Washington to distant parts of the wasn’t that big a country then but there weren’t
many roads either to different parts of the country to hear appellate cases before
they got to the Supreme Court this is the sort of notion of writing the circuit. I
guess the implication was that you were writing your own horse and this was a very
difficult job in this area there weren’t good roads there weren’t good canals I
guess there were boats you could go up and down the coast if you wanted as a result
there was a huge amount of turnover in the courts there were fact 3 chief justices
of the Supreme Court during the 1st 13 years of the country suggesting that it
wasn’t where people wanted to end up in in those early years and a number of those
early chief justices went on to senior positions in either the executive branch or
the or the or the Congress so it was difficult work and that meant that the courts
were less likely again to challenge our liberties I’m in the modern era we have a
sort of a a different notion that you see in some of the press about the federal
courts that they’re Imperial that they impose themselves in all kinds of ways that
they shouldn’t on our daily lives that they are in fact challenging our liberties
and to the I don’t agree with this sort of imperial judiciary notion but to the
degree that you do the argument that you would make is that you know that the
courts are placing themselves in the center of contentious national debates
particularly around sort of fundamental issues for the country either. Leadership
electoral or social i’m so you look to the fact that the 2000 election at a very
profound level was in fact decided by 5 to 4 vote of the Supreme Court in the case
of Bush v Gore the court could have in that ruling still created a high likelihood
that then Governor Bush would have won the presidency but allowed the process that
was going forward in the state of Florida to continue Instead the court said well
you have until tomorrow to resolve this we know you can’t so. President George Bush
becomes president and says and to his credit Al Gore accepted this immediately and
didn’t contest it but the idea of a non elected body choosing the president or
setting the rules for choosing the presidency is what was a little troubling to
some I think was even troubling to the Supreme Court in that in their ruling in
Bush v Gore they said this ruling does not really have precedential value meaning
it can’t be used in the future they didn’t anticipate that it would be now in fact
it has been a little bit but the factual circumstances were sort of unique and more
recently again in terms of electoral politics the Supreme Court determined in its
ruling in Citizens United v Federal Election Commission that corporate money could
in fact go to support candidates for federal offices have been barred before they
could go directly meaning if you were 80 and T. or Verizon you can’t give money
directly to a candidate but you can give money to an independent organization that
can then directly supported candidate and that has blown up the amount of money
that’s going into into the campaigns for federal office for Congress for the Senate
and for the presidency in a way that was unimaginable before and it’s bringing the
voice not just of citizens but of corporations into the electoral process this is
highly contested the National Federation of Independent Businesses that Alvey
Sebelius secretary of Health and Human Services at out of the courts determined
that in fact it was within the scope of federal taxing authority to mandate that
individuals have health insurance to ratify a key part of Obamacare you know should
Is this an issue that is is little bold absolutely went into court almost
immediately but the court sort of placed itself at the center of a national debate
and 1 that divided the 2 parties and many of the states from the federal
government. Hobby Lobby the. The court continued its involvement in Obamacare by
creating sort of an exception to the mandate for individual care for those that had
religious objections to pieces of the Affordable Care Act So again placing itself
at the center of contentious national issues in America fell the Hodges the Supreme
Court found a constitutional right to same sex marriage in the Constitution I
personally agree with this ruling but historically the Supreme Court probably would
have allowed the democratic process meaning the process in each of the states to go
forward rather than to put itself at the center of this debate and the Hawaii grew
out of the. President’s executive orders around immigration restriction in the 1st
week in office and again put the federal courts not just in Hawaii the case that
got to the court came out of Hawaii but really nationwide in a battle with the
Trump administration almost in its 1st days again which would not have been the
historical role of the federal courts I’m so where I don’t believe the courts are
Imperial in any means I’m certainly they are willing to use the powers that they
have to centrally positioned themselves in highly contentious issues to pick a
president if you. There’s a wonderful video that I ask you to look at for this
module wonderful in a number of dimensions I think the substance is really good
talking about judicial independence but also because of 2 of the people that are
speaking who do themselves serve on the court and 1 who formally served on the
court this is just a great opportunity of Supreme Court justices are more a little
more public than they have been in the past but this is just well I just I think
you’ll enjoy it I mean it’s if you don’t I apologize watch it anyway so why did the
founders think that the courts were the least dangerous branch. The Constitution I
think limits the judiciary in some substantive ways remember judges including
members of the Supreme Court but also circuit court judges district court judges
are appointed by the president meaning that the president gets you know sort of the
1st pick on you know the kinds of people who will be on the courts and you can
certainly if you read any newspaper coverage of a can controversial ruling from a
court it whatever level they’ll say so and so a George W. Bush appointee or so and
so a Bill Clinton appointee so you know presidents sort of determine the pool
Congress I mean the Senate more specifically has to approve these presidential
appointments and uses increasingly that authority to reject some of them or to.
Create enough controversy that individuals decide to pull themselves out of the
process and Congress also sets the salary of new federal judges meaning that if
Congress ever truly wanted to gut the judiciary it could it could say we will pay
all judges going forward a dollar a year make up the figure I’m now they cannot
under the Constitution reduce the salary of existing judges of this strategy would
take a little while but they could do it and only importantly on Congress
establishes the jurisdiction of the federal courts except in constitutional matters
on the areas where the Constitution gives the courts a specific authority Congress
can change that except by Constitutional Amendment of course but Congress has taken
away from the core federal judiciary many functions the biggest of these is
bankruptcy which is not handled by the. Sort of federal judiciary as we think of it
but instead by an independent set of courts the bankruptcy courts and in fact there
are many more bankruptcy cases brought annually than other kinds of judicial
matters to the federal courts laws are written by Congress so Congress sort of sets
the ground rules for what the court can interpret again outside of constitutional
matters. Members The court judges do have I think a power that no other federal
official has that’s a lifetime appointment it’s a lifetime appointment on good
behavior if you do something terrible you can be removed but I think this is in
some ways a twin edged sword certainly it is a way of protecting judges against
political pressure once they’re in office a judge can you know change his or her
positions or see that the people that appointed him or her were wrong in some way
or another but at the same time it removes judges from the political process
and hence makes them easier to dismiss over time so you’ll see criticisms of for
instance the Supreme Court the average age of which is probably now in the
seventy’s as just being out of touch with the the with. Will and lifetime
appointments and they create that risk in you there are workarounds that you could
think of to give judges independence without necessarily giving them the same kind
of lifetime protections I think they’re pretty severe political imitations on the
judiciary as well courts are fundamentally anti democratic you know if you believe
in small democracy you don’t like the way the federal courts are structured
lifetime appointments are pretty appalling meaning that political pressure has
absolutely no effect. And the people that are appointed to the judiciary this is
not by law or by the Constitution but just in practice tend to be drawn from
society’s elites I mean almost all certainly all contemporary judges are lawyers
you don’t have to be a bit of practice you are you know to achieve that status you
have done well in society hence you’re probably going to be more sensitive to
representative of socially networked to more to the elites of US society that
reinforces the sort of anti-democratic nature of the judiciary. Judges are careful
to. With the exception sometimes of the Supreme Court in recent years to look for
the narrowest way in which they can make a ruling so if you can make a ruling on
statute rather on the constant rather than on the constitution you are absolutely
supposed to do that if you can find some narrow part of statute rather than the
broad statute itself on which to turn your ruling again you do that so the public
doesn’t often understand the nuance of judicial rulings because judges are doing
what they’re supposed to do and this means that you need sort of a technical
expertise to understand a lot of rulings and again that makes it harder for the
mass of the public to believe that the judges are acting in their interest. The
judiciary by definition hears from sort of a broader range of the American public
than any single elected official. Companies can bring cases in courts foreign
governments can bring cases in courts States can bring. Cases in federal courts so
there this is the notion of multiple entry points. Again to the average citizen who
feels that something is being done wrong by a law may not like the fact that the
ruling in the end comes down to supporting a corporation and in fact the federal
courts have recognized corporations as people for purposes of the 14th Amendment
which just is doesn’t strike our ears as as rational but if you look at the
judicial history sort of see where they’re coming from Finally judicial rulings and
this is the ultimate political limit on the judiciary face the court of public
opinion what do I mean by that well the court doesn’t with some narrow exceptions
doesn’t have the ability to force the implementation of their rulings so when they
rule in a way that absolutely contradicts what people believe is right the ruling
will often just sort of disappear into the ether So for example when the Supreme
Court in 1904 ruled in the case of Brown v Board of Education that desegregation
should proceed in public education. With quote All Deliberate Speed all over it
speed took about 30 years. Because the court didn’t have an army it couldn’t force
every jurisdiction in the country to desegregate overnight and in fact it took many
subsequent court rulings and the intervention of the democratically elected
branches to see greater desegregation and by the time racially segregation ended to
begin it began having classic predation So arguably Brown has never fully been
implemented let me look to the beginnings of the court. For sort of an explanation
of how the judiciary has been able to move away from the least dangerous branch I
don’t think it’s at the Imperial end but it’s certainly not the least dangerous
probably the least dangerous of the 3 but it’s not without dangerous to our
liberties but I think in a positive way for the power of the federal courts and I
want to look at 2 rulings that occurred very early in the chief justice ship of
John Marshall John Marshall was the 4th. Chief Justice of the Supreme Court
probably the most famous chief justice in the US certainly up until a contemporary
era and I think is most famous because he skillfully used the courts to not
challenge the political branches but to expand power of the federal judiciary
particularly the Supreme Court but by extension of the lower courts and 2 very
important cases in which he did this Marbury v Madison an 803 ruling and United
States versus Skinner Peggy in 81 ruling. These you should know Marbury vs Madison
that’s 1 of those sort of key cases that that everybody should know is going to
Peggy is less known but I think reinforces or it came a little earlier but
reinforces what the skill of John Marshall let me give you a little background John
Marshall was a federalist he had been appointed by President John Adams towards the
end of John Adams term as president in the 800 elections the Federalist lost this
was that 1st sort of big change from 1 party to another this was the election that
proved that the democracy was actually going to survive for a little while as the
Federalist were going out of power they sought to get as many appointees into
office as they could so that at least for a while their people would still be
around even when the Jeffersonian the Democratic Republicans. Took control of the
formal formal government formally took control of the government with Jefferson’s
inauguration in March of 81. Adams had appointed Marbury as chief justice that was
11 of those appointments and Marbury was confirmed by the Senate and seated say
there’s no question about I’m sorry had confirmed Marshall there was no doubt that
Marshall was the chief justice of the report but also right at the end of the Adams
administration a president Adams had appointed John Marbury as the justice of the
peace for the District of Columbia really doesn’t matter a federal office. They had
so many of these appointments at the last minute that they didn’t actually deliver
the paperwork to place everybody in office so when the new administration comes in
wins and when. Thomas Jefferson comes in as president he appoints our friend
Madison as secretary of state and Madison refuses to deliver the piece of paper
that makes Marbury the justice of peace the peace for Washington D.C. It’s a small
appointment not terribly important but nevertheless you’re Marbury thinks he
deserves his appointees confirmed by the Senate why shouldn’t he have it so he sues
in the federal courts to force Madison to do his duty This is called a writ of
mandamus doesn’t particularly matter and case works its way after a year or so 2
years up to the Supreme Court Supreme Court in a really difficult position here if
it rules seemingly with the law and says that Mr Marbury deserves his piece of
paper to become the justice of the peace for the District of Columbia the Supreme
Court has ruled against the democratically elected branches has ruled against
Jefferson and the Democratic Republicans what will they do they’ll pay absolutely
no attention to unveil never deliver the piece of paper this makes that would make
the court look weak Court doesn’t want to look weak if it simply roll ball rolls
over though and says 0 yes you know you don’t really have to deliver the piece of
paper what makes them look weak to a man makes him look even weaker because that
I’ve been paying attention to law so what does what does a marshal and the rest of
the court do they look at the law under which Mr Marbury asked for his writ of
mandamus. Doesn’t really matter the 789. Judiciary Act and finds that it expands
the powers of the courts over those granted to it in the Constitution and says no
no no Congress you can’t do that Congress the Constitution says this you don’t have
the ability then to expand what the Constitution says so it says that the
underlying law that Mr Marbury is suing under. Is unconstitutional what does this
do it creates a new power for the courts to judge the constitutionality of federal
legislation that’s nowhere in the Constitution but it’s a very important power for
the courts to be able to judge the constitutionality of federal legislation the
Jeffersonian get what they want Marbury doesn’t get his commission the court gets
what it needs which is a new power that is not in the Constitution but arguably
should be some sort of logical piece of the checks and balances system the Marshall
Court is even more skilled in that it doesn’t use this power for another 40 years
so by the time of the next years people say 0 yeah Maria they were they asserted
that they have that power we’re not really going to challenge them on it and it’s
used very sparingly throughout the throughout the 19th century we’ve seen a lot
more so the it establishes the. System of judicial review that is now central to
the power of the courts I won’t go into the same detail with you know I think
Marbury vs Madison is a great case and shows Marshall’s creativity as a justice and
and explains why we have judicial review United States versus going to Peggy is
sort of a similar case if the Federalist court in the Supreme Court that had all
federalist members had ruled with the the sort of popular will it would have ruled
against the Jefferson administration which had entered into a treaty with France so
what the Supreme Court asserts in it is that the Constitution implicitly gives the
Supreme Court of the court’s more broadly the right to review treaties as well so
Marbury vs Madison constitutionality of federal laws is going to Peggy
constitutionality of treaties so the court builds its sort of judicial power with
these 2 cases by asserting them in or in
the Constitution while at the same time recognizing the institutional weakness of
the court I mean if it ruled the other way the dept popularly elected branches
simply never would have paid any attention and that would have made the court look.
In at but it tempered each of the $200.00 found a foundation for each of its
rulings so as not to antagonize the elected branches and the suggest yes the courts
are the least dangerous but they’re also skilled at building their their powers and
we’ll see more effort to build powers over the next 200 years so what are the
traditional limits on the judicial power of the courts Well there’s the notion of
standing who can bring a case to the federal courts there’s the scope of what the
courts can order because again remember it doesn’t. It can only issue a ruling it
can’t. Maintain a bureaucracy to enforce that ruling and then it doesn’t have an
army it can’t have enforcement powers so how I’m going to talk about how the courts
have these each of these limits have sort of traditionally been understood and then
how courts here particularly in the 20th century have been able to expand on the
are built on these traditional And so what standing standing is the ability to
bring a case before the courts on the traditional view was that they could only
judge cases in which the individual bringing the case had faced an individual harm
meaning he or she was victimized by some Federal Government policy. Case that
brings the to the fore is the case of Frothingham versus Mellon and all admit I
like talking about the case of Frothingham versus melon because I guess a prophet
now men you know that’s always a treat I’m always the issue and Frothingham versus
Mel and Mrs Frothingham didn’t like paying taxes because some share of her taxes
probably an infinitesimally small share of her taxes were going towards counseling
on family planning and she just didn’t think that was an appropriate appropriate
use of her money. This was a case from the 1900 centuries and the courts in the
Supreme Court in its ruling in Frothingham versus Mellon held to the traditional
notion of standing that. That Mrs Frothingham was not individually. Harmed by this
policy when she didn’t have the ability to bring She didn’t have the standing to
bring this case into the federal courts so Mrs Frothingham last time I’ll say it
loses the 2nd part of sort of the traditional notion of standing is that the courts
themselves don’t initiate action somebody has to bring an issue to the court for it
to to move forward in this in a sense limits the courts in that you have to have
people that are willing that have suffered in the traditional sense that individual
harm and they’re willing to go to the trouble to hire a lawyer and bring it into
that. 2nd Tradition of the traditional limits on the courts and that’s the scope of
the remedy this raises the question of justice ability and that is that the. For
the courts to take a case that there has to be an issue that can be judged by the
courts so the courts are limited here in the sort of remedies they can offer they
can’t change political outcomes for instance in a traditional notion of justice
ability probably would’ve taken Bush v Gore under the traditional sense and the
courts can only offer relief to individuals not to groups this is a natural
outgrowth of the only individuals with individual harm can bring issues to the
issues to the court and I think this sort of these this question of justice
ability. Is a recognition at least in the courts early years you know through the
1st 130 years of the courts that they have to defer to the elected branches in some
types of disputes and here particularly questions of foreign policy despite the
ruling is going to pay the most foreign policy cases through the 1st 130 years or
so of the courts history they just would punt and say well this is this is outside
of our outside of our scope outside of our ability to judge and then also obviously
an electoral outcomes and those continue to be contested today and finally the
courts lacked enforcement powers on the courts had to rely historically on other
branches of government to enforce their decisions and this is particularly
problematic for the courts in cases that violate popular norms and practices
probably most dramatically we saw this in the explicit language of the executive
branch in response to a series of cases brought to the supreme court to enforce
treaties between the United States and Native American tribes most specifically the
Cherokee Nation is case of an $831.00. The Supreme Court in in $1031.00 ruled on
the clear language of a treaty between the United States and the Cherokees
understood in this era as a sovereign nation which prohibited the invasion
essentially of their territory by. By the United States or by citizens of the
United States Supreme Court ruled in favor of the Cherokee I think a very clear
ruling based on the language of the treaty and President Jackson said Well the
Supreme Court has made its ruling does it have an army to enforce its ruling
meaning I’m not going to use my army to enforce its ruling and the Cherokee despite
the fact they wanted the Supreme Court last in reality has their lands were
overtaken by. People from Georgia largely But you know people Americans people not
of indigenous ancestry. Courts have ruled beginning in the early 20th century to
limit prayers in the public schools the use of similarly not always or usually not
been paid attention to or at least not in the early years limits on police
behaviors here coming out of the 4th and 8th Amendment concerns and then as I’ve
mentioned school desegregation So historically the courts didn’t have an Foresman
powers so they had to be careful when they ruled. In cases where public opinion was
against them and I guess you saw that to some degree in the sensitivity that
Marshall and the Marshall Court exercised in the case of Marbury v Madison they
knew that if they had ruled in favor Mr Marbury nobody would have enforced that
ruling it would have made so how has the court used the sort of institutional
structure of the federal courts to change due to shift each of these sort of
understanding of limits and does that move us towards an imperial judiciary and I
think the answer as I said in my opinion doesn’t move us all the way towards it but
it certainly moves us closer to an imperial judiciary than the traditional notion
of the least dangerous branch. So courts have over time particularly the 20th
century expanded the rules of standing and they have now recognized the taxpayers
can sue to prevent unconstitutional federal. Actions that they’re asserting are
unconstitutional it’s up to the courts to decide that simply based on their status
as taxpayers so in the modern era OK I’m doing it 1 more time Mrs Frothingham would
be able to sue. Because her tax money was being used for family planning I think
the courts would not rule in her favor but she at least would have been able to get
her hearing in court the courts have broadened the scope of relief they’ve
recognized that harms can be collected and consequently groups can bring action not
just individuals in the federal courts this leads to the phenomenon of the class
action suit of which some of you may have been a part of we frequently are without
even knowing it you know Verizon does something to our phone our i Phones and that
becomes a class action we get a few pennies out of it Moyers get a lot of money but
the principle is important even if that was a bad example that it that the courts
can judge collective harm as well as individual harm what this does though is it
creates a constituency for the courts there are some groups in society that are
simply not being represented by the democratically elected branches and
consequently rely on the courts as being the place will where they will get their
hearing the best example of this is is civil rights. Assertions in the AfricanAmerican Latino Asian American Native American communities you know beginning well
beginning really in the 1930 S. and continuing very much through to the present the
courts historically have been the venue for for civil rights claims because the
courts recognize that they can provide collective relief as 1 of the courts have
developed some structural remedies this gets over the problem of not having an army
courts can issue I have I’ve learned that they can issue rulings that aren’t. Are
declarative but require that something be done after a set period of time in the
court will review that So for example a lot of the complaints about the federal
prison system have resulted in sort of long term judicial involvement as the courts
have monitored how effectively the federal government has tried to remedy a problem
whether you know it in the mental health services or or overcrowding or all those
kinds of things and this main maintenance of involvement ensures that even though
the court doesn’t have an army it gets better cooperation from the elected branches
because they know that the courts can you don’t have to bring a new case that the
the the case remains open to continue to judge whether there’s a remedy being
achieved and finally. I think this is not an institutional change it is a
demographic change but lifetime appointments mean a lot more in in the current
error than they did in 787 when I think life expectancy for adults was in the low
forty’s you know even if you appointed somebody with a lifetime appointment at
$35.00 the odds of They’d still be around at $45.00 were pretty low Well
statistically if they’re a little less than 50 in the current era. Administrations
look for very young lawyers to appoint to the federal bench knowing that they might
serve for 3040 even longer years what that means is that you’ve created more of an
institutional knowledge in the federal
judiciary and it allows President long out of office to continue to have influence
on the courts. So to wrap up the courts I think were designed to be the weakest
branch and the Federalist Papers get that right but the Marshall Court sort of
began a slow process of expanding judicial power while still recognizing their
limits in the courts are always very careful or at least the courts as an
institution and chief justices are very good at not going too far certainly some
individual judges are willing to challenge limits the traditional limits on the
courts I think have been reduced to a 1000000 rated by institutional and political
change in these are standing scope of judicial remedies and the lack of enforcement
I’ve explained how those have been remedied they’ve not been eliminated but they’ve
been in the their. Their limits have been modified to some degree and I think in
the process the courts have done something that the founders probably didn’t
anticipate and that’s that the courts have created their own popular constituency
for those groups in society that are simply not represented very well by the
democratically elected branches but it is out of that that the courts I think are
taking on their biggest risk in contemporary society in that they’re placing
themselves in the plebiscite in popular opinion. In ways that I think the founders
probably would not have anticipated. In the in the next lecture I’ll give you some
sense of how the public is responding to the court being a part of the national
public sight thank you.

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