The Judicial Branch
II. The US Supreme Court
1. Powers and Role: Judicial Review
2. The Structure of the US Supreme Court
3. How cases reach the Supreme Court
a. Rules of access
b. Writs
The Supreme Court is the only Appellate court that has original jurisdiction over cases between states and cases involving foreign ambassadors or countries. Most other cases begin in lower courts and reach the Supreme Court in three ways: (A writ is a court document conveying some kind of order).
- Writ of appeal: a right available to all litigants but at the discretion of the Supreme Court (if they consider the case important), concerns the cases in which state law is in direct conflict with the constitution or in which the US is party to a civil suit. These situations seldom occur.
- Writ of certiorari: it is not considered a right to everybody. The cases heard deal with state court decision conflicts with Supreme Court decisions or when a new federal question has been raised or else if there has been inconsistent rulings between two or more states or courts of appeal. There is no discretion: four out of the nine justices must agree to examine the case for the Supreme Court to start working on it.
- Writ of habeas corpus: this is a fundamental safeguard of individual rights designed to enable an accused person to challenge arbitrary detention and to force an open trial before a judge. These cases are left to justices’ discretion. Most cases on that writ are about convicted on the death row.
c- The role of the Solicitor General
The Solicitor General is the third most important person in the Justice Department (after the Attorney General and the Vice Attorney General). But he is the top government defence lawyer in almost all cases involving the government as a party.
The role of the Solicitor General is to regulate the flow of cases. Other attorneys can do it but he has greatest control with no review of his or her actions by any authority.
B- The Supreme Court’s procedures
a- The preparation
When a case is accepted, both sides must prepare briefs – written documents in which attorneys explain why the court should rule in favour of their client. Briefs are filled with references to precedents to show that other courts have often ruled the same way as the Supreme Court should do.
At the same time, there are often sympathetic interest groups coming to support one side. They write amicus curiae (friend of the court) briefs to claim support.
b- Oral Argument
The next stage consists in both attorneys (both sides) to appear before the Court to present their position and answer questions. Each attorney has only half an hour, including interruptions and questions.
c- The Conference
The Court discusses the case in its Wednesday or Friday conference presided by the Chief Justice who speaks first. It’s a secret conference. They reach a decision on the basis of a majority vote.
d- Opinion Writing
Then one of the members of the majority who voted for the decision writes an opinion. The Chief Justice decides who will write. This decision is important because it can change the signification of the decision. Every opinion of the Supreme Court is considered as a precedent for future cases. Differences in wording or emphasis can have important implications. But the Supreme Court always expresses its decisions in terms of law and precedent.
e- Dissent
Justices who disagree with the decision of the majority may choose to express their disagreement in the form of a dissenting opinion. Dissent can also be used to signal that people defeated are still supported by some Justices. Dissent plays an important role because it gives lawyers a reason to bring such cases to appeal. And it shows that even if the Court speaks with a single opinion, it’s still the opinion of a majority.
III. Judicial Restraint and Judicial Activism
- Judicial Restraint (discussed in class)
Some justices think that courts should interpret the constitution according to the strict intention of its framers and defer to the views of congress when interpreting federal statutes. These advocates of judicial restraint are called “strict constructionists”, because they look strictly to the words of the constitution in interpreting its meaning.
Some justices think that courts should interpret the constitution according to the strict intention of its framers and defer to the views of congress when interpreting federal statutes. These advocates of judicial restraint are called “strict constructionists”, because they look strictly to the words of the constitution in interpreting its meaning.
- Judicial Activism (discussed in class)
This trend is opposed to judicial activism (cf. Earl Warren, J. Hugo Black, William D. Douglas.). Proponents of judicial activism argue that the court should sometimes go beyond the words of the constitution or a statute to consider the broader societal implications of its decisions. This enables the court to strike out new directions, promulgating new interpretations or inventing new legal and constitutional concepts when they believe these to be socially desirable.
Example: Harry Blackmun’s decision in Roe v. Wade (1973) was based on the constitutional right to privacy that is not found in the words of the constitution.
Since World War II the role of the federal judiciary has been strengthened and expanded. The most important revolution was in judicial policy.
In the 1950s and 1960s, the Supreme Court took an activist role concerning the Civil Rights. In areas including school desegregation, legislative apportionment, criminal procedure, abortion and voting rights, the Supreme Court was at the forefront of a series of changes in the role of the US government and ultimately in the character of American society.
Indeed, Brown v. Board of Education of Topeka, is a supreme Court decision handed down by Chief Justice Earl Warren in 1954. (Earl Warren had been appointed Chief Justice by President Dwight Eisenhower in 1953, and remained at the head of the Supreme Court until 1969). Speaking for a unanimous Court Chief Justice Warren reversed the decision reached in Plessy v. Ferguson (1896) which stipulated that segregation did not violate the Equal Protection Clause of the 14th Amendment as long as equal facilities were provided for each race. This ‘separate but equal doctrine’ had provided a legal sanction for segregation, although in practice, facilities for black people were clearly inferior.
This marked a victory for the National Advancement Association for Colored People (NAACP) and paved the way for integration and the civil rights movement.
However until 1965, the situation changed slowly. In 1957, President Eisenhower sent federal troops to Little Rock, Arkansas, so that black pupils could enter a “white” school.
J. F. Kennedy, like Eisenhower before him, had to make sure that a black student could be admitted in a school, and Lyndon B. Johnson secured the passage of the Voting Rights Act (1965) to checkmate Southern efforts to keep black voters from the polls.
On the other hand: R. Reagan and G. W. Bush appointed conservative judges which led the Supreme Court to take a more conservative turn.
