Chapter 14

The Judiciary: The Balancing Branch

In no other country do the courts play as powerful a role as they do in the United States. As the quotation from Alexis de Tocqueville in the text points out, this power is hardly new and is rooted both in our legal system and in our culture. Americans are a litigious, argumentative people who demand their rights. And since the assertion of judicial review by John Marshall, the legal system has operated in such a way as to increase the power of judges.

One major theme developed in this chapter is the technical operation of the legal system. The hierarchy of laws, the structure of courts, the procedures used in litigation are all topics that must be understood by the student. There are a large number of terms through which the instructor will have to guide the student. Fortunately, students tend to find the court system interesting, so the chore should not be too onerous.

The second theme developed in this chapter is the political nature of the court system. Judicial review itself is politically controversial. Should judges be active or restrained in its exercise? The vagaries of the selection process and the role of the court in not only forbidding executive action but also in ordering action—reforming prisons and running schools, for example—are part of this political theme, political in the sense of both partisanship and allocation of values.

The Supreme Court does indeed read the election returns, and its membership reflects the results of those elections. At the same time, instructors should point out that partisan politics and public opinion do not necessarily dominate Court actions. Members of the Court do not hesitate to make unpopular rulings if precedent and principle are clear. The 1989 decision striking down, on freedom of speech grounds, state laws regulating flag desecration is an excellent case in point.

I. LEARNING OBJECTIVES

1. Define judicial review.

2. Identify and define eight types of law.

3. Explain how the adversary system shapes the role of judges and the scope of judicial power.

4. Describe how judges make law.

5. Analyze the role of stare decisis in the judicial system.

6. Outline the structure of federal courts, identifying the jurisdiction of each.

7. Describe the relationship between federal and state courts.

8. Describe the roles of federal lawyers, prosecutors, solicitor general, assistant attorney general, and public defenders. Also, comment on the role of the Legal Services Corporation.

9. Describe the process used to select federal judges, including the role of the president, the Senate, senatorial courtesy, the American Bar Association, and the Judicial Selection Monitoring Project.

10. Analyze the impact of party, race, sex, and ideology on the judicial selection process.

11. Compare judicial activism and judicial restraint and their relationship to political ideology.

12. Explain how ideology and judicial philosophy affect when sitting judges choose to retire.

13. Discuss how partisan politics enters the judicial selection process, the size of the federal judiciary, and the appellate jurisdiction of the Supreme Court.

14. Explain how cases reach the Supreme Court.

15. Discuss the role of briefs and oral arguments in a Supreme Court case.

16. Describe how the Supreme Court acts in conference.

17. Describe the importance of written judicial opinions.

18. Describe the powers of the chief justice.

19. Explain what happens to a case after the Supreme Court has ruled.

20. Debate the proper role of the courts.

21. Analyze the relationship between the Supreme Court and the people.