AP US Gov Courts Notes

12/5/11

v General

Ø  The Supreme Court is the only court that was directly created by the Constitution

¨     Robes and the steps represent a separation from politics.  The robes that the justices wear shows that they are unconcerned with what people think of them.  The architecture of the Supreme Court building is known for its steps, which is symbolic of the Court being above politics and party lines and separate form the rest of DC.

Ø  The other federal courts (Courts of Appeal and District Courts) are created by Congress (one way Congress can check the courts).  For federal crimes, you go to the District Courts.  A case does not go to the Supreme Court unless it is being questioned for its constitutionality (the Supreme Court does not have trials or a jury)

¨     District Courts is where you go if you commit a federal crime

¨     Courts of Appeal take the load off the Supreme Court

Ø  Federalism- there are national courts and state courts

Ø  What’s written in the Constitution with qualifications applies to all federal judges

v How the federal courts are shielded from the public

Ø  All federal judges are appointed by the president and confirmed by the Senate (not elected by the people)

Ø  Limited access to watch a court’s preceding, which limits the public’s influence over the court

Ø  All federal judges serve life terms- they never have to be reappointed or reelected, which gives the people somewhat of a say

Ø  You can’t reduce the salaries of the justices while they are in office

Ø  Congress of the president cannot force the Supreme Court to take certain cases

¨     The Supreme Court sets its own docket (list of cases that it is going to hear)

v Why can’t they deviate too far from public opinion?

Ø  They can be impeached

¨     16 government officials have been impeached since the creation of the country- 11 of which were federal judges (7 were removed), and 1 was a Supreme Court justice (but was not removed)

¨     A judge cannot be removed because of his/her political views

Ø  The appointment and confirmation process

¨     We can call our Senators, who are the ones who confirm judges, and tell them that we don’t like a person nominated for the courts.  We can pressure our representatives to pick or confirm someone we like/ don’t like

Ø  Supreme Court does not have anyone to enforce their decisions- they depend on the other branches to enforce their decisions

¨     The courts do not have power of the sword of the purse, therefore they depend on the other branches to carry out their judgements

¨     Example: the Supreme Court ruled that the Native Americans did not have to move, but Jackson chose not to enforce the Court’s ruling and made the Native Americans move

Ø  Congress can change the number of justices

¨     During the New Deal, the courts were striking down FDR’s programs to help the economy.  FDR wanted to increase the number of justices from 9 to 15 and appoint people who would pass his programs (Court Packing Plan/Scheme).  This never happened (people thought FDR was abusing his power and bullying the courts), but the president/Congress can try to control the courts by changing the number of justices

Ø  Always worried about the image of the court- worried about making decisions to ruin their image and provoke public criticism

Ø  We can always amend the Constitution to go above the court’s decision

12/6/11

v How federal judges interpret the Constitution differently

Ø  Abortion- how was it justified?

¨     There is nothing written about it in the Constitution

¨     The people who created the right to abortion follow the activist approach

™ Activist approach- trying to interpret the Constitution in a broad way and not going by the literal language of the document.  Create certain rights that are not specifically written in the Constitution.  They have an eye towards change, and view the constitution as a “Living Constitution”- it morphs and changes over time to adapt to modern circumstances

™ The right to abortion is based out of the right of privacy

¨     The other side is the strict constructionist approach

™ Interpret the Constitution literally by its exact language and don’t look for hidden meanings

™ If you follow the activist approach, you’re giving the judges too much power

™ Since there is nothing about abortion in the Constitution, it is up to the states to decide

™ The republicans have been trying to use this to overturn Roe vs. Wade

Ø  Appointing judges is so controversial and leads to heated debates because of these issues

¨     Litmus Test- as a judge you are tested for your ideological purity.  When you’re being questioned by the Senators before confirmation, they want to know how you feel about specific issues (abortion and gay marriage) and how you view the law (strict constructionist or activist)

¨     Interest groups pressure the president when they are choosing a judge

¨     Because of this, the courts are dragged into issues of politics

¨     Even if someone claims their ideology, you never know how they will end up deciding on cases.  And once judges are in, they’re in for life

12/7/11

v Important Court Cases

Ø  Nation Building and relationship between the national government and states/ slavery

¨     Marbury vs. Madison 1803

™ The case that judicial review came from

¢ Judicial review is not in the Constitution, but it was assumed that it would be part of the judicial branch

r State courts had judicial review

r Judicial review was discussed in the Federalist Papers (Hamilton felt that the courts needed it to protect mob rule)

r Judicial review was discussed during the debates at the Constitutional Convention to protect minority rights

™ Background: the 1800 election, when Jefferson became president

¢ First time there was a transfer of power from one political party to another

r Power shifted from the federalist party, which Washington and Adams were part of, to the democratic-republican party, which Jefferson was part of.  The democratic-rebuplican party evolved from the anti-federalists who didn’t want the national government to be too strong, and evolved into the democratic party that we have today

r The democratic-republicans won the presidency and Congress, so at the last second Adams elected federalists to the courts (midnight judges).  However, the commissions (paperwork) were not all delivered to the judges Adams elected, so when Jefferson came to office it was his job to make sure the papers were delivered, and he would not deliver the papers because he did not approve of what Adams did

r One of the midnight judges who did not get his paperwork (Marbury) decided to take it to court.  He went to the Supreme Court and asked them to issue a writ of mandamus (a command) to Madison (Jefferson’s secretary of state who was responsible to deliver the paperwork) that would force Madison to deliver the commissions to all the midnight judges

™ Marshall (chief justice) was afraid that he would be impeached if he made the wrong decision (Jefferson hated him).  At that time, there were no real lines for impeachment.  Marshall wanted to try to avoid making the full decision on the midnight judges, because he did not want to decide on a political matter

¢ Marshall decided the case could not be reviewed by the Supreme Court, because in this case the Supreme Court did not have original jurisdiction (first court that hears a case.  Supreme Court has original jurisdiction when the states are parties, and when it is involving a foreign2 ambassador).  In 1789, Congress gave the Supreme Court original jurisdiction in cases that involve a writ of mandamus (Judiciary Act of 1789).  This is a contradiction- the Constitution said one thing and Congress said another

™ Because of the contradiction between the Constitution and Congress, Marshall stated that the Constitution always wins out à overturned the Judiciary Act

¢ This gave the courts judicial review (power to interpret the Constitution), gave the courts power, and made it a coequal branch

¢ Therefore, Marshall sent the case to a lower federal court because judicial review was established and the Supreme Court could not review the case (he avoided going against Jefferson)

¨     McCulloch vs. Maryland 1819

™ Should we have a national bank?  Is it a proper use of the elastic clause to have a national bank?

¢ Yes- loose constructionists

r It fits in with the expressed powers

ë Congress can coin money, so it should all be done in one place

ë Taxing and borrowing

r The loose constructionists wanted us to have a strong economy with trade, and a national bank would allow the government to have a centralized economy and will make trade easier

¢ No- strict constructionists

r It is an abuse of the elastic clause

r Strict constructionists hate national banks because they think the rich people use it to make money off everyone else and destroy the value of our money through inflation (critique of the fed even today)

™ A national bank was formed with the country, but its charter ran out around 1815, and we no longer had a national bank à debate between strict and loose constructionists

¢ A new national bank was formed 

¢ The strict constructionists were upset, so they tried to use the states to get rid of the national bank.  State government in Maryland taxed every note the branch of the federal bank in Maryland issued to destroy the bank

¢ This led to the court case

r McCulloch headed this branch, and refused to pay the taxà court case

™ Marshall stated two things

¢ A national bank is the proper use of the elastic clause

¢ States cannot tax a national agency that’s operating within that state’s boundaries (statement on the balance of power between the national government and the states.  Preventing the states from blackmailing the national government through taxes)

r “The power to tax is the power to destroy”

¨     Gibbons vs. Ogden

™ (earlier notes)

™ Relationship between national government and the states

™ Example of national government overturning state laws

™ How did Marshall justify the national government superseding the states?

¢ Marshall came to the conclusion that the US is a union of people and not a compact of states.  It was the people throughout the country who ratified the Constitution, not the state legislatures, which shows that we are a union of people, not states.  Therefore, the national government has supreme power over the states.  A compact of states would give the states more freedom to do what they want, but that’s not what we have

¨     The Dred Scott Decision

™ A slave owner brought his slave, Dred Scott, to a free area, and Dred Scott said that since he was in a free place, he is now free

™ Taney was the Chief Justice at the time- Jackson purposely picked him because Taney supported states’ rights

™ Supreme Court ruled:

¢ They wouldn’t even hear the case because Dred Scott is not a citizen of the US à outraged the people and furthered the abolitionist movement and set the stage for the Civil War

Ø  The government’s relationship with the economy- how much can the government regulate businesses/ property rights? (1865-1930’s)

¨     Businesses used the 14^th amendment (which was meant to give blacks citizenship because all people born in the US are citizens) to say corporations are individuals, and therefore they have the right to take government regulations to court.  These cases came up often because of the industrial revolution

¨     Laws overturned that regulate businesses/ property rights

™ Federal Income Tax

¢ Supreme Court overturned that it’s unconstitutional to have an income tax

™ Upheld rules preventing strikes to protect property rights and trade

Ø  Getting to Court, How a person can afford it

¨     Gideon vs. Wainwright

™ Gideon was arrested, found guilty, and put in jail, and did research in jail, and sent a petition to the Supreme Court in pencil. He said he didn’t have a lawyer for his trial, and the 6^th amendment says everyone is entitle to a lawyer, but only for federal courts, not state courts. Gideon’s argument was that the federal government should force the states to say that everyone should have the right to an attorney through something called Incorporation. This is the process by which the bill of rights has been applied to the states. This has given the national courts a lot of power of states. This comes from the due process clause. The federal court took all of the amendments from the bill of rights and applied them to the states. Incorporation is the using the due process laws to apply it to the states

™ He used Informa Pauperis to not have to pay the 300$ fine (means he is poor so he doesn’t have to pay)

™ When you apply to go to the supreme court, you ask for a Writ of Certiorari (cert), which means they will listen to your appeal