THE CONSTITUTIONAL BASIS: Article II

Section I: The judicial power shall be vested in one Supreme Court and such inferior courts as Congress shall from time to time ordain and establish.
The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.

This means that unlike the Congress and the president, there is only "before-the-fact" control of the courts. "After-the-fact" control is only by impeachment, which is extremely rare.

Thus federal judges are intentionally independent of the powers that appointed them.

As Shepsle and Bonchek say, this breaks the connection between performance and compensation.

This independence gives them the possibility of doing "what is right" regardless of political consequences. Will they? Of course it gives them also the possibility of doing otherwise. See the issues of the 1930s and the "court packing episode."

THE NATURE OF JUDICIAL DECISION MAKING IN THE UNITED STATES

• An adversarial system: "truth" emerges from conflict between litigants: plaintiff and defendant.

• Limited initiative for judges (as opposed to legislators and executives): resolving disputes brought by others. However, choosing ~150 cases out of thousands gives them considerable discretion.

• A hierarchical system: on the federal level, one Supreme Court (with 9 justices), thirteen Courts of Appeal, 94 District courts

• Similar hierarchies on the state level, but with different methods:

• Federal supremacy over state courts on federal questions

• Statutory interpretation

Example: in 1984 (Grove City College v. Bell), the Supreme Court ruled that Title IX (of the 1972 Education Act amendments) forbids sex discrimination only to programs that are directly receiving federal funds. Congress overruled this decision in the Civil Rights Restoration Act of 1988, which said that if only one part of a college receives federal aid, the entire institution is covered.

Example: in 1998, the Supreme Court ruled that a federal statute that prohibits sexual harassment does so for harassment of workers of the same sex as well as of the opposite sex. (Oncale v. Sundowner Offshore Services; see Light, pp. 564, 616). Congress is not acting.

A spatial model of the difference between Grove City and Oncale. (See S&B, pp. 422-428)

Congress has final authority over what the statutory law is.

• Constitutional interpretation

The doctrine of judicial review articulated in Marbury v. Madison (1803)

Examples of constitutional interpretations that have led to Congressional efforts to override:
            Brown v. Board of Education (1954); the equal protection clause in Amendment XIV
            Roe v. Wade (1973); a constitutional right to privacy nowhere explicitly specified in the Constitution. (Justice Douglas: a penumbra. Amendment IX not specifically used.)

The Supreme Court has the final authority over what the Constitution means

• Only four amendments have overruled Supreme Court interpretations of the Constitution:

XIV (1868) "all persons born or naturalized in the US are citizens of the US and of the state where they reside," overruling Dred Scott v. Sandford, 1857, which had said that Negroes have no rights that a white man is bound to respect (!!)

XVI (1913) modified Article I section 2 (on representatives and direct taxes to be apportioned according to numbers of population) overruling Pollock v. Farmers Loan, about 1876.

XXVI (1971) right to vote for persons 18 years old or older shall not be denied according to age, overriding Oregon v. Mitchell.

Failed efforts to amend the Constitution: Abortion, school prayer, school desegregation, flag burning

• Another possibility for changing the Supreme Court's interpretation of the Constitution: Court packing

• in the 1930s, the Supreme Court was declaring major portions of Roosevelt's New Deal legislative program unconstitutional.

• After the 1936 landslide re-election (retrospective voting), FDR proposed one new justice for every one over 70 who had served ten years or more.

• A firestorm of objection

• "A switch in time saves nine"

• Normal replacement: in spite of cases like Clark (Truman) and Warren (Eisenhower)

President and Congress regarding the courts:

• Presidents appoint judges with the advice and consent of the Senate (Article II, section 2

• Presidents usually (try to) choose people who are politically similar (See Light, p. 555)
• Usually their nominations prevail, but the appointment process has gotten much more politicized since the late 1960s
• Six of 29 nominees rejected since 1968
• Bork (Reagan appointee) defeated after a public campaign, leading to the creation of a phrase "to be Borked"
• Clarence Thomas approved by 52-48 (narrowest margin in a century)

• Because of "holding office during good behavior, " justices often disappoint the president who appointed them. See quotes on Warren and Clark in Light, pp. 555-6

The courts regarding the president

• Youngstown Sheet and Tube Co. v. Sawyer (1952) on the commander in chief clause
• US v. Nixon on executive privilege
• Jones v. Clinton on civil lawsuits and the presidency
• Korematsu v. US (1944) on military necessity

• Marbury v. Madison (1803)
• Dred Scott v. Sandford (1857)
• Schecter Poultry Corp v. US 1935

Rehnquist: "One of the greatest fictions of our federal system is that Congress exercises only those powers delegated to it, while the remainder are reserved to the states or to the people."

Most contemporary exercises of judicial review of acts of Congress are limited to violations of individual rights, such as

• Buckley v. Valeo (1976)
• US v. Eichmann (1990)