Saturday, November 19, 2016

11/19 The Judiciary

The American legal system is based on the idea of "common law," taken from the older English legal system. In a common law system the authority of the judges to decide cases are emphasized. Many other countries have a "civil law" system where laws are laid out in written codes of law, and the task of judges are to interpret when the laws apply in specific cases. In common law, obviously the judges still have to follow the written laws, but are given more freedom to come to their own decisions. 

However, past decisions of judges are carried over into present cases, so before a case is decided, lawyers and judges consult past court decisions, this is known as "legal precedent," or stare decisis, since judges cannot contradict previous decisions (except in rare circumstances) the authority of past decisions has a strong hold on legal outcomes in the present. Furthermore, another feature of the American legal system are the high frequency of "plea bargains." Again, since common law allows for more interpretation, court cases can be very time consuming. To compensate for this, many cases are "plead out," meaning that the defendant will plead guilty to a lesser offense without a trial, in order to speed up the process of coming to a legal decision. Almost 80% of legal decisions in the U.S. are the result of plea bargains.

Many conservatives, oppose what they call "judicial activism" or what they consider to be the judicial branch of government taking too much of a pro-active role in deciding legislation, rather than interpreting the law, as it says in the Constitution. However, this criticism seems to overlook the features of how a common law system works. That being said, the judicial branch has almost always tended to be the most conservative branch of government, the branch least influenced by popular majorities. It should not be surprising, that Alexander Hamilton, the most conservative of the founders, spent the most time emphasizing the importance of the judiciary in the Federalist Papers.


The federal judiciary (of which Hamilton was a prime architect) set up under the Constitution went into effect, along with the Judiciary Act of 1789 which further specified the structure and duties of federal courts. One of the busiest was the United States District Court for the Southern District of New York. The Judicial branch of the government, makes up so much more than the Supreme Court. The 94 federal district courts are the lowest level of the federal judiciary. Above them, presently, there are 13 U.S. Courts of Appeal, in most cases these are the highest federal judicial authority most people will deal with if they have to. Higher than this is the Supreme Court of the United States (SCOTUS) but it limits the amount of cases it hears every year to about 100. The Supreme Court has a maximum of nine justices of the court including the Chief Justice, and Associate Justices. They are nominated by the President, approved by the Senate and serve life-terms. The power of the court is specified in Article III of the Constitution. 


The primary concern of the Southern District today includes Manhattan and the Bronx and handling cases under "admiralty law" or cases involving trade or shipping disputes with foreign countries or interstate trade from other states. This is a highly sought after position and has been used a springboard for even higher offices, for example before he became Mayor of New York City in 1993, Rudolph Giuliani was the State's Attorney (or federal prosecutor) for the Southern District of New York. This is distinct from the Government of New York State and the City of New York, and you can see now how the different layers of government: federal, state, and municipal all overlap with each other depending on authority and function.
Southern District of New York

Legal matters involving trade with a foreign country come under the jurisdiction of federal law. Since the port of New York was the busiest port in the country, most cases involving disputes over shipping and international trade would occupy most of the court's activity.


The Supreme Court (as the federalists intended) has tended to play a more conservative role in government, often siding with business interests against attempts to regulate commerce through legislation. However, in the public imagination the court is seen as a crucial part of the civil rights movement, as the institution which finally ended legal segregation in the nation in the landmark case Brown v. Board of Ed. By looking at some of the most important cases to come through the Supreme Court we begin to understand better the dual role the court has played in American history.


In judicial history the first really important case heard by the court was Marbury v. Madison in 1803. This case is important because it established the importance of judicial review in the U.S. The power of judicial review is the most important power of the court, and it is a power which is fairly unique to the U.S. supreme court, although all nations have a judicial branch of government, not all nations have this power. Basically, the power of judicial review gives the court the power to cancel out laws passed by Congress or actions undertaken by the executive branch, by determining the constitutionality of laws and actions, the court can deem them to be unconstitutional and thus invalidate them. This power was not clearly specified in the Article III of the Constitution, and it was not until Marbury v. Madison that the power of the court was established.

Since then, the court has weighed on many important matters from the regulation of businesses (Swift & Co. v. U.S.), to freedom of speech (Schenck v. U.S.), civil rights (Brown v. Board of Ed; Loving v. Virginia), abortion (Roe v. Wade), legalization of drugs (Gonzales v. Raich) and the notion of "corporate persons" and the role of money in government (Buckley v. Valeo). As mentioned already it has tended to side more with business interests in cases regarding it, but has also supported the civil rights of minorities. In other words, the court has tended consistently to support minority interests (whatever they may be) against the majority. That being said, at times, the court has been more susceptible to the dominant values of the day, e.g. the court's decision in Brown v. Board of Ed, contradict earlier decisions which affirmed segregation like Plessy v. Feguson or Dred Scott v. Sanford which denied the citizenship and even the humanity of African-Americans. 

Many of the court's decisions have relied on the 14th amendment, specifically, the due process and equal protection clauses. The equal protection clause states that the same standards of law must be applied to everyone, and obviously laws that harm one group of people would fail the test created by the equal protection clause. The concept of due process is something inherited from British political institutions, dating back to the Magna Carta of 1215. The idea of due process states that government must have sufficient reason, and must follow established rules, before it can deprive an individual of their rights. In a modern context, the idea of due process can be broken down into procedural and substantive aspects. Procedural due process establishes formal rules followed by government, and includes things like a warrant to arrest or search someone's property must be obtained; before being charged with a major crime a person must be indicted by a grand jury; that individuals have a right to a trial by jury, that in turn must render a unanimous decision, all of these are procedural aspects of due process, as are prohibitions against torture and cruel and unusual punishment, especially as a means of gaining a confession. If authorities are to gain intelligence they must do through legal means. 

Most of the major cases were not about issues of procedural due process, but substantive due process, which asks whether or not the government has a good reason to deprive someone of their rights. In many cases, the Supreme Court has said no, and have defined many more rights than originally specified in the Constitution, since the 9th amendment mentions "unenumerated" rights that are not specifically named. In some cases, maybe, you want the court to say yes, like the issue of unlimited financing of political campaigns. Many of the rights we enjoy today are a result of rights implied by the Constitution, but defined by judicial review looking at concrete cases. The notion of substantive due process then guides the process of judicial review, which itself has a defined procedure it follows, applying "strict scrutiny" in only the most important cases:


Procedural Due Process: Rules are followed
·      Warrants—4th Amendment
·      Grand Jury—5th Amendment
·      Trial by Jury—6th Amendment
·      Torture—8th Amendment

Substantive Due Process: Does the government have a good reason to deprive someone of liberty?
      Freedom of contract (Lochner v. New York)
·      Right to custody (Troxel v. Granville)
·      Right to privacy (Griswold v. Connecticut)
·      Right to marriage (Loving v. Virginia)

Judicial Review:
·      Rational basis review: “rationally related to a legitimate government interest”
·      Intermediate scrutiny: equal protections
·      Strict scrutiny: fundamental rights or suspect classification
1.     compelling government interest
2.     narrowly tailored

3.     least restrictive means

The judicial branch continues to play an important role in protecting the rights of minorities (whether it be business interests or ethnic/racial minorities), however it does raise the question of whether the courts are too independent of the majority will. With life terms for federal judges and the lack of any accountability to the populace through elections it is relatively easy for the courts to ignore or defy popular will. The recurring question that will always be associated with the courts are what is the proper balance between the independence of the judges and the demands made by popular majorities?

As we have already discussed, since there are no term limits for federal judges, most serve until they die or retire. The recent death of Antonin Scalia, long considered the most conservative member of the SCOTUS, has recently caused yet another constitutional controversy between the Obama administration and the Republican Congress. Although it clearly specifies in the Constitution that the President is the sole authority to nominate candidates for the federal government (approved by the Senate), Republicans have already declared they will not listen to any nominees put forward by the President. This is blatantly illegal, and does not follow any precedent set in this country. The president serves a four-year term and during the entire length of that term is empowered to make replacements in the federal government when they come up, there is no rule at all that the president cannot do this in their last term of office. Yet, another example of the unpatriotic and frankly illegal obstructionism shown by Republicans. It should be said though that the President has also once again disappointed his liberal supporters, by nominating a conservative judge, Merrick Garland, to take Scalia's place. Although, it certainly make Republicans look bad, since some have actually named Garland in the past as a good candidate for a judge, only to disapprove once Obama nominated him, it does not say much for the current President's willingness to stand up to the conservative establishment.



Assignment: Choose one of the Supreme Court case summaries and select a passage, write out the passage, explain how the decision was made, and then explain why you chose it and why you believe this case is important.

1 comment:

  1. Roe VS Wade was a big time Supreme court case. "Jane Roe was an unmarried and pregnant Texas resident in 1970. Texas law made it a felony to abort a fetus unless “on medical advice for the purpose of saving the life of the mother.” Roe filed suit against Wade, the district attorney of Dallas County, contesting the statue on the grounds that it violated the guarantee of personal liberty and the right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. In deciding for Roe, the Supreme Court invalidated any state laws that prohibited first trimester abortions."

    In 1971 The Supreme Court agrees to hear the case filed by Norma McCorvey, known in court documents as Jane ROE, against Henry WADE, the district attorney of Dallas County from 1951 to 1987, who enforced a Texas law that prohibited abortion, except to save a woman's life. The Texas law had been declared unconstitutional in an earlier federal district court case. Wade ignored the decision and both sides appealed. In 1972 the case is argued before the Supreme court. In 1973 the U.S. Supreme Court, in a 7-2 decision, affirms the legality of a woman's right to have an abortion under the Fourteenth amendment to the Constitution.

    This case paved the way for women rights and for women to be in control over themselves and their bodies. This case brought to life the importance of a women making her own decisions and reaffirmed her to her constitutional rights. The reason why i chose this case, not only being a woman but because it began a revolution for women. I believe without this case and other cases women wouldnt be where they are and wouldnt be able to excercise their rights to the full extent.

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