The Judiciary

The American legal system is based on the idea of "common law," from the English system. In a common law system the authority of judges to decide cases are emphasized. Many other countries have a "civil law" system where laws are laid out in written codes of law (e.g. the Code Napoléon), and the task of judges are to interpret when the laws apply in specific cases. In common law, obviously 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.

Common law countries also distinguish between criminal law and tort law (also called civil law, but different from civil law of other countries). Criminal acts violate the laws of the state, and are prosecuted by the state. Torts cover lawsuits initiated by people for damages resulting from the actions of others and are between individuals (the plaintiff and defendant). So, for example, driving while is intoxicated is a crime that can be prosecuted by the state, regardless if any injuries were done, at the same time, any injuries that are caused by the person can be held liable as a tort (sometimes called a "civil wrong"). There are different procedures in how criminal and civil cases are conducted. For example, OJ Simpson was acquitted in criminal court for murder, where jurors have to be certain "beyond a reasonable doubt", but was found liable in a civil lawsuit where jurors have to consider what is most likely, in other words the standard of proof is lower in civil court. "Tort reform" is an effort by corporations to limit the damages possible in a civil lawsuit, since corporations are liable under tort law for damages or injuries done to people, covering things like medical malpractice, environmental pollution, unsafe products, and more.

Of course the racial disparity of laws is something that needs to be addressed, particularly in how it manifests itself as the "war on drugs" which has led to the mass incarceration state. Many historians, like Michelle Alexander, see mass incarceration as the third period in African-American following slavery and segregation.

https://www.huffpost.com/entry/the-evolution-slavery-to-mass-incarceration_b_57f66820e4b087a29a54880f

 One of the architects of the war on drugs, John Ehrlichman, a close aide of President Nixon, even admitted, later in life, that the war on drugs was invented as a way of criminalizing black people, and the counter culture in general. http://www.drugpolicy.org/press-release/2016/03/top-adviser-richard-nixon-admitted-war-drugs-was-policy-tool-go-after-anti

Since the drug war involves both state and federal court systems, I will limit this discussion to the federal level and focus more on core principles like due process and judicial review, that nonetheless impact all aspects of the legal system including drugs, as well as the structure of the federal judiciary.

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. 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 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, at times, 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 is not above prejudice e.g. the court's decision in Brown v. Board of Ed, contradict earlier decisions which affirmed segregation like Plessy v. Feguson (1896) or Dred Scott v. Sanford (1857) which denied the citizenship and even the humanity of African-Americans.

Of course the big issue now is that the Supreme Court has overruled Roe, in another case Dobbs v. Jackson Women's Health Organization. The abortion debate is a highly divisive debate in America, although evidence would suggest that the vast majority of Americans support the right to an abortion. It deals with many issues, like when does life begin? What obligations are women under to carry a pregnancy to full term? What are the socioeconomic considerations at play. Although a full in depth debate over these issues is beyond the scope of this class, it is important to at least weigh in on some of these issues. First, anti-abortion activists claim that life begins at the moment of conception. Any abortion then would be taking a life. However, traditional opinion has always held that a person's life begins when they are actually born (hence your birthday). Medical research would say that life does not begin until the life could be supported on its own, which in this case would be at 21 weeks. That would be over five months into a pregnancy. That is the earliest time, according to medical researchers that a fetus could conceivably survive on its own, although with significant medical assistance like respirators and things like that. Many anti-abortion laws that have already been passed by states outlaw abortion in some cases after six weeks, far earlier than what most medical research would it is possible to survive on its own. The question of when life begins is a philosophical issue, but at least in this case there is some scientific research behind this opinion.

Another thing to be considered are the potential health risks to women who give birth. The US leads the world in both maternal mortality and infant mortality, that is women and infants who either die while giving birth or shortly after, in the case of infants within the first year of their life. 

These disturbing statistics are extremely high for Native American and African-American women as well. In the opinion on Roe, one of the dissenting judges, Justice White, who did not agree with the majority speaks about the health risks and what he has to say is interesting. His dissent is not included in the online readings but can be found here

http://landmarkcases.c-span.org/pdf/Roe_White_Dissent.pdf 

He writes:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons - convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.

However, I think White falsely separates pregnancies into two categories: dangerous and safe. In fact, any pregnancy can be potentially dangerous, although there are factors that can make some pregnancies more dangerous than others.

The other factor to consider are the socioeconomic circumstances. More than 75% of women who receive an abortion at some point in their life would be considered low income, and most women cite financial reasons as the main reason why they feel unready to have children. The hypocrisy of those  who claim to be "pro-life" is that they are against any kind of social programs which would provide assistance to women and children. If they really cared they should support these programs which would not only lower the number of abortions but also decrease the number of maternal and infant mortalities.

There are of course many other aspects of this debate that are important but those are at least a few important considerations.

Since the Civil War, many of the court's decisions (including Roe) have relied on the 14th amendment, specifically, the due process and equal protection clauses:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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.

However, as many like Gore Vidal have argued, with the war on terror, and legislation like the PATRIOT Act, supported by courts, the notion of due process is essentially hollow. Anyone suspected of being a terrorist can now be detained for an indefinite amount of time, with no contact with family, lawyers, or anyone, and can be tortured, or subjected to Orwellian sounding "enhanced interrogation techniques," including "whistleblowers" like Chelsea Manning and in all likelihood Julian Assange, if the Trump administration gets its hands on him.
https://www.youtube.com/watch?v=czD_4XUSIok

Procedural Due Process: Rules are followed

·      Warrants—4^th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

·      Due Process—5^th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

·      Trial by Jury—6^th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

·      No Torture—8^th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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)

Most of the major Supreme Court cases are 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 has defined more rights than originally specified in the Constitution, since the 9th amendment mentions "unenumerated" rights that are not named. In some cases, maybe, you want the court to say yes, like the issue of unlimited financing of political campaigns, or corporate ownership of public goods and services. Many of the rights we enjoy today are a result of rights implied by the Constitution, but defined by judicial review through concrete examples. 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:

When deciding on the constitutionality of laws, the judges apply what is called "Judicial Review." When they review a law, judges ask several critical questions to help them determine legality. Judicial Review can be broken down into different levels:

·     A. Rational basis review: Questions is the law “rationally related to a legitimate government interest”?

·      B. Intermediate scrutiny: Also questions government interest, but also if a law is based on substantial evidence. First used in cases of gender discrimination in 1976: https://www.oyez.org/cases/1976/75-628

· The highest level is:  
      C. Strict scrutiny: asks three questions the government must prove

1.     compelling government interest

2.     narrowly tailored for the goals of the law

3.     least restrictive means

Brown v. Board of Ed, Loving v. Virginia, and Roe v. Wade were all decided using strict scrutiny. 

The judicial branch continues to play an important role in protecting the rights of minorities (including business interests), however it does raise the question of whether the courts are too independent of the majority will, as argued by Jamal Greene. With life terms for federal judges and lack of accountability 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?

Some of the major issues the court will now have to decide, will be the legality of DACA (Deferred Action for Childhood Arrivals), whose legal basis is Plyler v. Doe, and in the Equal Protection Clause of the 14th amendment. Other issues of concern: abortion, employment discrimination against LGBT people, gun rights, and  surveillance and policing over ordinary citizens. This is even more controversial given the circumstances of the appointments of Justices Gorsuch, Kavanaugh, and Barrett.

 Next class, we will talk about how lobbyists and social movements influence the political system.